As filed with the Securities and Exchange Commission on August 20, 2018
Registration No. 333-______
 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
CONTURA ENERGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
1221
81-3015061
(State or Other Jurisdiction of
Incorporation or Organization)
(Primary Standard Industrial
Classification Code Number)
(I.R.S. Employer
Identification Number)
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd.
Bristol, Tennessee 37620
(423) 573-0300
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
______________________
Kevin S. Crutchfield
Chief Executive Officer
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd.
Bristol, Tennessee 37620
(423) 573-0300
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
______________________
 
Copies to:
 
William L. Taylor
Byron B. Rooney
Lee Hochbaum
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
Facsimile: (212) 701-5800
Mark M. Manno
Executive Vice President, Chief Administrative and Legal Officer and Secretary
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd.
Bristol, Tennessee 37620
Telephone: (423) 573-0300
Facsimile: (423) 573-0446
Andrew B. McCallister, Esq.
SVP, Secretary and General Counsel
ANR, Inc.
Alpha Natural Resources Holdings, Inc.
636 Shelby Street, 3rd Floor
Bristol, Tennessee 37620
Telephone: (423) 574-5100
Mark D. Wood
Jonathan D. Weiner
Martin Q. Ruhaak
Katten Muchin Rosenman LLP
575 Madison Avenue
New York, New York 10022
Telephone: (212) 940-8800
Facsimile: (212) 940-8776
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement and upon completion of the merger of Prime Acquisition I, Inc. (“ MergerSub1 ”), a wholly-owned subsidiary of Contura Energy, Inc. (“ Contura ”), with and into Alpha Natural Resources Holdings, Inc. (“ Holdings ”), and the merger of Prime Acquisition II, Inc. (“ MergerSub2 ”), a wholly-owned subsidiary of MergerSub1, with and into ANR, Inc. (“ ANR ”), as described in the Agreement and Plan of Merger, dated as of April 29, 2018, among ANR, Holdings, Contura, MergerSub1 and MergerSub2.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. o
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange Act”).
Large accelerated filer o
Accelerated filer o
Non-accelerated filer     ý   (Do not check if a smaller reporting company)
Smaller reporting company o
 
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  o
Exchange Act Rule 14d-l(d) (Cross-Border Third-Party Tender Offer)  o
______________________
CALCULATION OF REGISTRATION FEE
Title Of Each Class
Of Securities To Be Registered
Amount
To Be
Registered(1)
Proposed Maximum Aggregate Offering Price(2)
Amount Of
Registration Fee(3)(4)
Common Stock, $0.01 par value
9,005,888
$687,573,612.60
$64,010.75
(1)
Represents the maximum number of shares of Contura common stock estimated to be issuable upon completion of the mergers, as described in the joint proxy statement and prospectus included herein, equal to the product of (a) the sum of (i) 4,223,290 shares of common stock, par value $0.01 per share, of Holdings, outstanding as of June 1, 2018, (ii) 15,907,752 shares of Class C-1 common stock, par value $0.01 per share, of ANR, outstanding as of June 1, 2018, (iii) 110,612, which is the maximum number of shares of Class C-1 common stock of ANR that may become issuable prior to the completion of the mergers pursuant to the settlement of ANR restricted stock units, issued and reserved for outstanding awards under the ANR 2017 Equity Incentive Plan (“2017 Equity Plan”) as of June 1, 2018 and (iv) 1,880,402 shares of Class C-1 common stock of ANR, which is the maximum number of shares of Class C-1 common stock of ANR that may be converted from options to purchase Class C-1 common stock of ANR issued and reserved for outstanding awards under the 2017 Equity Plan as of June 1, 2018, and (b) an exchange ratio of 0.4071.
(2)
Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act and calculated pursuant to Rules 457(f)(1), (f)(2) and (f)(3) and 457(c) of the Securities Act. The proposed maximum aggregate offering price of the registrant’s common shares was calculated based on the market value of the common stock of Holdings and ANR (the securities to be canceled in the mergers) as follows: the sum of (a) $130,921,990, the product of (i) $31.00, the average of the high and low prices per share of the common stock of Holdings quoted over the counter as reported by the OTC Markets on August 13, 2018 and (ii) 4,223,290, the maximum number of shares of Holdings common stock that may be canceled in the mergers as of June 1, 2018, (b) $494,731,087.20, the product of (i) $31.10, the average of the high and low prices per share of Class C-1 common stock of ANR quoted over the counter as reported by the OTC Markets on August 13, 2018 (“ANR Stock Trading Price”) and (ii) 15,907,752, the maximum number of shares of Class C-1 common stock of ANR that may be canceled in the mergers as of June 1, 2018, (c) $3,440,033.20, the product of (i) the ANR Stock Trading Price and (i) 110,612, the maximum number of shares of Class C-1 common stock of ANR that may become issuable prior to the completion of the mergers pursuant to the settlement of ANR restricted stock units issued and reserved for outstanding awards under the 2017 Equity Plan as of June 1, 2018 and (d) $58,480,502.20, the product of (i) the ANR Stock Trading Price and (ii) 1,880,402, the maximum shares of Class C-1 common stock of ANR that may be converted from options to purchase Class C-1 common stock of ANR issued and reserved for outstanding awards under the 2017 Equity Plan as of June 1, 2018.
(3)
Calculated pursuant to Section 6(b) of the Securities Act and SEC Fee Advisory #1 for Fiscal Year 2018 at a rate equal to $124.50 per $1,000,000 of the proposed maximum aggregate offering price.
(4)
Pursuant to Rule 457(p) of the Securities Act, the registration fee is offset by the unutilized registration fee of $21,592.17 previously paid by the registrant in connection with its registration statement on Form S-1 (File No. 333-217766).

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
 




Information contained in this joint proxy statement and prospectus is subject to completion or amendment. A registration statement relating to Contura Energy, Inc.’s common stock to be offered in this transaction has been filed with the Securities and Exchange Commission. These securities may not be sold, nor may offers to buy be accepted, prior to the time the registration statement becomes effective. This joint proxy statement and prospectus shall not constitute an offer to sell, or the solicitation of an offer to buy, nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdictions.
PRELIMINARY-SUBJECT TO COMPLETION-DATED August 20, 2018
CAPTURE.JPG
PROPOSED MERGERS - YOUR VOTE IS VERY IMPORTANT
[●] , 2018
Dear Stockholders of ANR, Inc. and Alpha Natural Resources Holdings, Inc.:
On April 29, 2018, ANR, Inc., a Delaware corporation (“ANR”), and Alpha Natural Resources Holdings, Inc., a Delaware corporation (“Holdings” and together with ANR, “Alpha”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), with Contura Energy, Inc., a Delaware corporation (“Contura”), Prime Acquisition I, Inc., a Delaware corporation and wholly owned subsidiary of Contura (“MergerSub1”), and Prime Acquisition II, Inc., a Delaware corporation and wholly owned subsidiary of MergerSub1 (“MergerSub2”). The Merger Agreement provides that, upon the terms and subject to the conditions set forth therein, MergerSub1 will merge with and into Holdings (the “Holdings Merger”), with Holdings as the surviving corporation of the Holdings Merger, and, immediately after the effective time of the Holdings Merger, MergerSub2 will merge with and into ANR (the “ANR Merger” and together with the Holdings Merger, the “Mergers”), with ANR as the surviving corporation of the ANR Merger.
If the Mergers are consummated, among other things, each share of common stock, par value $0.01 per share, of Holdings (“Holdings Common Stock”), and each share of Class C-1 common stock, par value $0.01 per share, of ANR (“Class C-1 Common Stock”), in each case issued and outstanding immediately prior to the effective time of the applicable Merger (other than shares held directly by Holdings, ANR or Contura and shares held by any holder of Holdings Common Stock or Class C-1 Common Stock with respect to which appraisal rights have been properly demanded and not properly withdrawn) will automatically be converted into the right to receive 0.4071 shares of common stock of Contura, par value $0.01 (“Contura Common Stock”), subject to adjustment as provided in the Merger Agreement for any stock split, reclassification or similar event. Shares of Class C-2 common stock, par value $0.01 per share, of ANR (“Class C-2 Common Stock” and together with the Class C-1 Common Stock, the “ANR Common Stock”), all of which are held by Holdings, and any other shares of ANR common stock and Holdings common stock held by Holdings, ANR or Contura, will be canceled without consideration if the Mergers are consummated. No fraction of a share of Contura Common Stock will be issued in the Mergers and instead holders of Holdings Common Stock or Class C-1 Common Stock who would otherwise be entitled to receive a fraction of a share of Contura Common Stock as a result of the Mergers will receive an amount in cash, as further described in the joint proxy statement and prospectus.
It is anticipated that, if the Mergers are consummated, Alpha stockholders will collectively own approximately 46.5% of the combined company, based on current stock prices and capital structures. We also anticipate that, if the Mergers are consummated, the Contura Common Stock will be listed for trading on the New York Stock Exchange under the symbol “CTRA.”
Holdings and ANR will each hold a special meeting of its stockholders to obtain stockholder approval necessary to satisfy the requirements of Section 251 of the Delaware General Corporation Law, as well as a condition to closing the transactions contemplated by the Merger Agreement. At the special meeting being held by Holdings (the “Holdings Special Meeting”), Holdings stockholders will be asked to consider and vote upon the adoption of the Merger Agreement as it relates to the Holdings Merger (the “Holdings Merger Proposal”), as described in this joint proxy statement and prospectus. At the special meeting being held by ANR (the “ANR Special Meeting” and together with the Holdings Special Meeting, the “Special Meetings”), ANR stockholders will be asked to consider and vote upon the adoption of the Merger Agreement as it relates to the ANR Merger (the “ANR Merger Proposal”), as described in this joint proxy statement and prospectus.
Approval of the Holdings Merger Proposal requires approval by Holdings stockholders holding a majority of the outstanding shares of Holdings Common Stock as of the record date for the Holdings Special Meeting, and approval of the ANR Merger Proposal requires approval by ANR stockholders holding a majority of the voting power of the outstanding shares of ANR Common Stock as of the record date for the ANR Special Meeting. A holder of Class C-1 Common Stock can


cast one vote for each share of Class C-1 Common Stock owned, and a holder of Class C-2 Common Stock can cast 1.187 votes for each share of Class C-2 Common Stock owned. All 4,223,400 shares of Class C-2 Common Stock outstanding are held by Holdings and, in the aggregate, constitute 23.96% of the voting power of the outstanding shares of ANR Common Stock. Pursuant to the terms of the Merger Agreement. Holdings has agreed to vote all such shares in favor of the ANR Merger Proposal if the Holdings Merger Proposal is approved at the Holdings Special Meeting. In order to consummate the transactions contemplated by the Merger Agreement, including the Mergers, the ANR Merger and the Holdings Merger must both be approved by the applicable stockholders. If the ANR Merger is not approved by ANR’s stockholders or if the Holdings Merger is not approved by Holdings’ stockholders, then none of the ANR Merger, the Holdings Merger or the other transactions contemplated by the Merger Agreement will be consummated, and Alpha will remain a standalone company.
The Holdings Special Meeting will be held at [●] on [●] , 2018 at [●] [a.m.][p.m.] local time. The ANR Special Meeting will be held at [●] on [●] , 2018 at [●] [a.m.][p.m.] local time.
After careful consideration, the board of directors of Holdings determined that the Merger Agreement and the transactions contemplated thereby, including the Holdings Merger, are fair, advisable and in the best interests of Holdings and its stockholders. Accordingly, Holdings’ board of directors unanimously recommends that Holdings Stockholders vote “FOR” the adoption of the Holdings Merger Proposal and “FOR” one or more adjournments of the Holdings Special Meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the foregoing proposal if there are not otherwise sufficient votes to approve the proposal.
After careful consideration, the board of directors of ANR determined that the merger agreement and the transactions contemplated thereby, including the ANR merger, are fair, advisable and in the best interests of ANR and its stockholders. Accordingly, ANR’s board of directors unanimously recommends that ANR Stockholders vote “FOR” the adoption of the ANR Merger Proposal and “FOR” one or more adjournments of the ANR Special Meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the foregoing proposal if there are not otherwise sufficient votes to approve the proposal. If you hold outstanding shares of both Holdings Common Stock and ANR Common Stock, you will receive separate proxies for each of Holdings and ANR. You should complete, sign and return each proxy you receive or follow the internet instructions on each card.
We cannot complete the Mergers without stockholder approval of both the Holdings Merger Proposal and the ANR Merger Proposal. It is important that your shares be represented and voted regardless of the size of your holdings. Whether or not you plan to attend the Holdings Special Meeting or the ANR Special Meeting, we urge you in advance of the respective Special Meetings to submit a proxy to have your shares voted by using one of the methods described in this joint proxy statement and prospectus.
This joint proxy statement and prospectus provides important information regarding the Special Meetings and a detailed description of the Merger Agreement, the Mergers, certain related transactions and agreements and the matters to be presented at the Special Meetings. We encourage you to read the entire accompanying joint proxy statement and prospectus carefully. Please pay particular attention to “Risk Factors” beginning on page 34, for a discussion of the risks relating to the proposed Mergers.
We look forward to the successful completion of the Mergers and thank you for your prompt attention to this important matter.
Sincerely,
David J. Stetson
Chairman of the Board and Chief Executive Officer
ANR, Inc. and Alpha Natural Resources Holdings, Inc.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved the securities to be issued in the Mergers or determined if this document is accurate or adequate. Any representation to the contrary is a criminal offense.
The date of this joint proxy statement and prospectus is [●] , 2018, and it is first being mailed to Holdings Stockholders and ANR Stockholders on or about [●] , 2018.


CAPTUREA01.JPG
636 Shelby Street, 3rd Floor
Bristol, Tennessee 37620
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON [●] , 2018
To the Stockholders of ANR, Inc.:
NOTICE IS HEREBY GIVEN that a special meeting of stockholders of ANR, Inc. (“ANR”) will be held at [●] on [●] , 2018 at [●] [a.m.][p.m.] local time (the “ANR Special Meeting”) for the purpose of considering and voting upon the following matters:
1.
Adoption of the Agreement and Plan of Merger, dated as of April 29, 2018, by and among ANR, Alpha Natural Resources Holdings, Inc. (“Holdings”), Contura Energy, Inc., Prime Acquisition I, Inc., and Prime Acquisition II, Inc. (“MergerSub2”), as such agreement may be amended from time to time (the “Merger Agreement”), a copy of which is attached as Annex A to this joint proxy statement and prospectus, as it relates to the merger of MergerSub2 with and into ANR (the “ANR Merger”), with ANR as the surviving corporation of the ANR Merger (the “ANR Merger Proposal”); and
2.
Approval of one or more adjournments of the ANR Special Meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the ANR Merger Proposal (the “ANR Adjournment Proposal”) if there are not otherwise sufficient votes to approve the proposal.
ANR Stockholders may also transact such other business as may properly come before the ANR Special Meeting and any adjournments or postponements thereof. At this time, ANR’s board of directors knows of no other proposal or matter to come before the ANR Special Meeting.
ANR’s board of directors has fixed the close of business on [●] , 2018, as the record date for determining those stockholders entitled to notice of, and to vote at, the ANR Special Meeting and any adjournments of the ANR Special Meeting (the “ANR Record Date”). Only ANR Stockholders of record at the close of business on the ANR Record Date are entitled to notice of, and to vote at, the ANR Special Meeting and any adjournments of the ANR Special Meeting. Approval of the ANR Merger Proposal requires approval by ANR Stockholders holding a majority of the voting power of the outstanding shares of Class C-1 common stock of ANR (“Class C-1 Common Stock”) and Class C-2 common stock of ANR (together with the Class C-1 Common Stock, the “ANR Common Stock”) as of the ANR Record Date. Approval of the ANR Adjournment Proposal requires the affirmative vote of the holders of a majority of the voting power of ANR Common Stock as of the ANR Record Date that is present in person or represented by proxy at the ANR Special Meeting and entitled to vote on the ANR Adjournment Proposal.
If you wish to attend the ANR Special Meeting and your shares are held in the name of a bank, broker, trust or other nominee, you must bring (i) valid picture identification, (ii) a “legal proxy” form from the broker, and (iii) an account statement or other acceptable evidence showing that you were the beneficial owner of ANR Common Stock on the ANR Record Date.
If you hold outstanding shares of both Holdings Common Stock and ANR Common Stock, you will receive separate proxies for each of Holdings and ANR. You should complete, sign and return each proxy you receive or follow the internet instructions on each card.
As required by Section 262 of the Delaware General Corporation Law, ANR is notifying all stockholders entitled to vote on the ANR Merger that you are or may be entitled to assert appraisal rights in connection with the proposed ANR Merger. The procedures you are required to follow in order to exercise your appraisal rights are summarized in this joint proxy statement and prospectus in the section entitled “The Mergers — Appraisal / Dissenters’ Rights for Alpha Stockholders” beginning on page 131, and a copy of the appraisal rights statute is included with this joint proxy statement and prospectus as Annex E .


Your vote is very important. Whether or not you plan to attend the ANR Special Meeting, please complete, date, sign and return the enclosed proxy card in the enclosed envelope to ensure that your shares of ANR Common Stock will be voted at the ANR Special Meeting if you are unable to attend. You may also submit a proxy by telephone or via the Internet by following the instructions printed on the proxy card. If you hold your shares in street name, you may vote by following your broker’s instructions.
The ANR board of directors has unanimously approved the Merger Agreement, the ANR Merger and the other transactions contemplated by the Merger Agreement, has determined that the Merger Agreement and the transactions contemplated thereby, including the ANR Merger, are fair, advisable and in the best interests of ANR and its stockholders, and unanimously recommends that ANR Stockholders vote “FOR” the ANR Merger Proposal and “FOR” the ANR Adjournment Proposal.
We encourage you to read the entire accompanying joint proxy statement and prospectus carefully. Please pay particular attention to “Risk Factors” beginning on page 34, for a discussion of the risks relating to the proposed ANR Merger.
 
 
By Order of the Board of Directors,
 
 
 
 
 
David J. Stetson
 
 
Chairman of the Board and Chief Executive Officer
Bristol, Tennessee
 
 
 
 
 
[●] , 2018
 
 


CAPTUREA01.JPG
636 Shelby Street, 3rd Floor
Bristol, Tennessee 37620
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON [●] , 2018
To the Stockholders of Alpha Natural Resources Holdings, Inc.:
NOTICE IS HEREBY GIVEN that a special meeting of stockholders of Alpha Natural Resources Holdings, Inc. (“Holdings”) will be held at [●] on [●] , 2018 at [●] [a.m.][p.m.] local time (the “Holdings Special Meeting”) for the purpose of considering and voting upon the following matters:
1.
Adoption of the Agreement and Plan of Merger, dated as of April 29, 2018, by and among ANR, Inc. (“ANR”), Holdings, Contura Energy, Inc., Prime Acquisition I, Inc. (“MergerSub1”) and Prime Acquisition II, Inc., as such agreement may be amended from time to time (the “Merger Agreement”), a copy of which is attached as Annex A to the joint proxy statement and prospectus, as it relates to the merger of MergerSub1 with and into Holdings (the “Holdings Merger”), with Holdings as the surviving corporation of the Holdings Merger (the “Holdings Merger Proposal”); and
2.
Approval of one or more adjournments of the Holdings Special Meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the Holdings Merger Proposal (the “Holdings Adjournment Proposal”) if there are not otherwise sufficient votes to approve the proposal.
Holdings Stockholders may also transact such other business as may properly come before the Holdings Special Meeting and any adjournments or postponements thereof. At this time, Holdings’ board of directors knows of no other proposal or matter to come before the Holdings Special Meeting.
Holdings’ board of directors fixed the close of business on [●] , 2018, as the record date for determining those stockholders entitled to notice of and to vote at the Holdings Special Meeting and any adjournments of the Holdings Special Meeting (the “Holdings Record Date”). Only Holdings Stockholders of record at the close of business on the Holdings Record Date are entitled to notice of and to vote at the Holdings Special Meeting and any adjournments of the Holdings Special Meeting. Approval of the Holdings Merger Proposal requires approval by Holdings Stockholders holding a majority of the outstanding shares of common stock of Holdings (“Holdings Common Stock”) as of the Holdings Record Date. Approval of the Holdings Adjournment Proposal requires the affirmative vote of the holders of a majority of the total Holdings Common Stock as of the Holdings Record Date that is present in person or represented by proxy at the Holdings Special Meeting and entitled to vote on the Holdings Adjournment Proposal.
If you wish to attend the Holdings Special Meeting and your shares are held in the name of a bank, broker, trust or other nominee, you must bring (i) valid picture identification, (ii) a “legal proxy” form from the broker, and (iii) an account statement or other acceptable evidence showing that you were the beneficial owner of Holdings Common Stock on the Holdings Record Date.
If you hold outstanding shares of both Holdings Common Stock and ANR Common Stock, you will receive separate proxies for each of Holdings and ANR. You should complete, sign and return each proxy you receive or follow the internet instructions on each card.
As required by Section 262 of the Delaware General Corporation Law, Holdings is notifying all stockholders entitled to vote on the Holdings Merger that you are or may be entitled to assert appraisal rights in connection with the proposed Holdings Merger. The procedures you are required to follow in order to exercise your appraisal rights are summarized in this joint proxy statement and prospectus in the section entitled “The Mergers—Appraisal / Dissenters’ Rights for Alpha Stockholders” beginning on page 131 , and a copy of the appraisal rights statute is included with this joint proxy statement and prospectus as Annex E .


Your vote is very important. Whether or not you plan to attend the Holdings Special Meeting, please complete, date, sign and return the enclosed proxy card in the enclosed envelope to ensure that your shares of Holdings Common Stock will be voted at the Holdings Special Meeting if you are unable to attend. You may also submit a proxy by telephone or via the Internet by following the instructions printed on the proxy card. If you hold your shares in street name, you may vote by following your broker’s instructions.
The Holdings board of directors has unanimously approved the Merger Agreement, the Holdings Merger and the other transactions contemplated by the Merger Agreement, has determined that the Merger Agreement and the transactions contemplated thereby, including the Holdings Merger, are fair, advisable and in the best interests of Holdings and its stockholders, and unanimously recommends that Holdings Stockholders vote “FOR” the Holdings Merger Proposal and “FOR” the Holdings Adjournment Proposal.
We encourage you to read the entire accompanying joint proxy statement and prospectus carefully. Please pay particular attention to “Risk Factors” beginning on page 34, for a discussion of the risks relating to the proposed Holdings Merger.
 
 
By Order of the Board of Directors,
 
 
 
 
 
David J. Stetson
 
 
Chairman of the Board and Chief Executive Officer
Bristol, Tennessee
 
 
 
 
 
[●] , 2018
 
 



ABOUT THIS JOINT PROXY STATEMENT AND PROSPECTUS
This joint proxy statement and prospectus, which forms part of a registration statement on Form S-4 filed with the U.S. Securities and Exchange Commission (referred to as the “SEC”) by Contura (File No. 333-______), constitutes a prospectus of Contura under Section 5 of the Securities Act of 1933, as amended (referred to as the “Securities Act”), with respect to the shares of Contura common stock to be issued to Holdings and ANR stockholders pursuant to the merger agreement. It also constitutes a notice of meeting with respect to the special meeting of Holdings stockholders and a notice of meeting with respect to the special meeting of ANR stockholders. Contura and Alpha have not authorized anyone to provide you with any information other than the information that is contained in this joint proxy statement and prospectus. Contura and Alpha take no responsibility for, and can provide no assurances as to the reliability of, any other information that others may give you. This joint proxy statement and prospectus is dated [ ● ], 2018. You should not assume that the information contained in this joint proxy statement and prospectus is accurate as of any date other than that date. Neither the mailing of this joint proxy statement and prospectus to Holdings stockholders or ANR stockholders, nor the issuance by Contura of shares of common stock in connection with the mergers, will create any implication to the contrary. This joint proxy statement and prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities, or the solicitation of a proxy, in any jurisdiction to or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction. Information contained in this joint proxy statement and prospectus regarding Contura has been provided by Contura, and information contained in this joint proxy statement and prospectus regarding Alpha has been provided by Alpha.



TABLE OF CONTENTS
 
 
 
Page Number
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 





QUESTIONS AND ANSWERS ABOUT THE MERGERS AND THE SPECIAL MEETINGS OF ALPHA STOCKHOLDERS
The following are some questions that you, as a stockholder of Holdings or ANR, may have regarding the mergers or the special meetings of Holdings and ANR stockholders, which we refer to collectively as the “Alpha special meetings,” and brief answers to those questions. More detailed information about the matters discussed in these questions and answers can be found elsewhere in this joint proxy statement and prospectus, as well as the annexes hereto. Contura Energy, Inc. (“Contura”), ANR and Holdings (together with ANR, “Alpha”) encourage you to read carefully the remainder of this joint proxy statement and prospectus because the information in this section does not provide all of the information that might be important to you with respect to the matters being considered at the Alpha special meetings. Additional important information is also contained in the annexes to this joint proxy statement and prospectus.
Q:
Why am I receiving this joint proxy statement and prospectus?
A:
The boards of directors of Holdings and ANR are using this joint proxy statement and prospectus to solicit proxies of Alpha stockholders pursuant to the Agreement and Plan of Merger, dated as of April 29, 2018 (as amended from time to time, the “merger agreement”), among ANR, Holdings, Contura, MergerSub1 and MergerSub2, providing, among other things, that, upon the terms and subject to the conditions set forth in the merger agreement, MergerSub1, a wholly owned subsidiary of Contura, will merge with and into Holdings (the “Holdings merger”), and MergerSub2, a wholly owned subsidiary of MergerSub1, will merge with and into ANR (the “ANR merger” and together with the Holdings merger, the “mergers”).
In addition, this joint proxy statement and prospectus is a prospectus for Alpha stockholders because as a result of the mergers and upon the terms and subject to the conditions set forth in the merger agreement, Contura will issues shares of common stock, par value $0.01, of Contura (“Contura common stock”) to Alpha stockholders as the merger consideration (along with cash in lieu of fractional shares).
In order to complete the mergers, ANR and Holdings stockholders must adopt the merger agreement. ANR and Holdings will hold separate special meetings of stockholders to obtain these approvals. This joint proxy statement and prospectus contains important information about the merger agreement, the mergers and the special meetings of the ANR and Holdings stockholders, and you should read it carefully. The enclosed voting materials allow you to vote your shares without attending the applicable meeting in person.
Your vote is important. We encourage you to submit your proxy as soon as possible.
Q:
What are Alpha stockholders entitled to receive in the mergers?
A:
If the mergers are completed, each share of common stock, par value $0.01 per share, of Holdings (“Holdings common stock”) and each share of Class C-1 common stock, par value $0.01 per share, of ANR (“Class C-1 common stock”), in each case outstanding immediately prior to the effective times of the mergers (other than shares held directly by Holdings, ANR or Contura and shares held by any holder of Holdings common stock or Class C-1 common stock with respect to which appraisal rights have been properly demanded and not properly withdrawn) will be converted into the right to receive 0.4071 (the “exchange ratio”) fully paid and nonassessable shares of Contura common stock. All shares of Class C-2 common stock, par value $0.01 per share, of ANR (“Class C-2 common stock” and together with the Class C-1 common stock, the “ANR common stock”) and all shares of Holdings common stock and Class C-1 common stock held by Holdings, ANR or Contura will be canceled for no consideration in connection with the mergers. No fraction of a share of Contura common stock will be issued in the mergers and instead holders of Holdings common stock or Class C-1 common stock who would otherwise be entitled to receive a fraction of a share of Contura common stock will receive an amount in cash, as further described under “The Merger Agreement—Merger Consideration” beginning on page 147.
Q:
When and where will the special meetings of the Alpha stockholders be held?
A:
The special meeting of ANR stockholders (the “ANR special meeting”) will be held at [●] on [●], 2018 at [●] [a.m.][p.m.] local time. The special meeting of Holdings stockholders (the “Holdings special meeting” and each of the ANR

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special meeting and the Holdings special meeting, a “ special meetings ”) will be held at [●] on [●], 2018 at [●] [a.m.][p.m.] local time.
Q:
What are Alpha stockholders voting to approve and why is this approval necessary?
A:
ANR stockholders are being asked to approve (i) a proposal to adopt the merger agreement as it relates to the ANR merger (the “ANR merger proposal”), and (ii) a proposal to approve one or more adjournments of the ANR special meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the ANR merger proposal (the “ANR adjournment proposal”) if there are not otherwise sufficient votes to approve the proposal.
Holdings stockholders are being asked to approve (i) a proposal to adopt the merger agreement as it relates to the Holdings merger (the “Holdings merger proposal” and together with the ANR merger proposal, the “merger proposals”), and (ii) a proposal to approve one or more adjournments of the Holdings special meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the Holdings merger proposal (the “Holdings adjournment proposal” and together with the ANR adjournment proposal, the “adjournment proposals”).
ANR stockholders and Holdings stockholders, respectively, are being asked to approve the ANR merger proposal and the Holdings merger proposal, respectively, in order to satisfy the requirements of Section 251 of the Delaware General Corporation Law (“DGCL”) and a condition to the consummation of the mergers contained in the merger agreement.
Pursuant to the terms of the merger agreement, Holdings agreed to vote all of its 4,223,400 shares of Class C-2 common stock in favor of the ANR merger proposal if the Holdings merger proposal is approved at the Holdings special meeting, which, in the aggregate, constitutes 23.96% of the voting power of the outstanding shares of ANR common stock.
Q:
Who can attend and vote at the special meetings?
A:
You, or your duly authorized proxies, can attend and vote at the ANR special meeting if you owned shares of ANR common stock at the close of business on [●], 2018, the record date for the ANR special meeting (the “ANR record date”).
You, or your duly authorized proxies, can attend and vote at the Holdings special meeting if you owned shares of Holdings common stock at the close of business on [●], 2018, the record date for the Holdings special meeting (the “Holdings record date”).
Q:
What do I need to do to attend the special meetings?
A:
If you are an ANR stockholder of record as of the ANR record date, you must present an acceptable form of identification (such as a valid driver’s license) in order to enter the ANR special meeting. If you hold your shares in indirectly through a bank, broker, trustee or other nominee (each referred to herein as, a “broker”), you must bring (i) an acceptable form of identification, such as a driver’s license, (ii) a “legal proxy” form from the broker, and (iii) an account statement or other acceptable evidence showing that you were the beneficial owner of Class C-1 common stock on the ANR record date.
If you are a Holdings stockholder of record as of the Holdings record date, you must present an acceptable form of identification (such as a valid driver’s license) in order to enter the Holdings special meeting. If you hold your shares in street name (as discussed below), you must bring (i) an acceptable form of identification, such as a driver’s license, (ii) a “legal proxy” form from the broker, and (iii) an account statement or other acceptable evidence showing that you were the beneficial owner of Holdings common stock on the Holdings record date.
Q:
What is the difference between holding shares as a stockholder of record and holding shares in “street name” as a beneficial owner?
A:
If your shares of Holdings common stock are held directly in your name with Holdings’ transfer agent, or if your shares of Class C-1 common stock are held directly in your name with ANR’s transfer agent, you are considered a stockholder of record of Holdings or ANR, respectively. If you hold your shares of Holdings common stock or Class C-1 common stock indirectly through a broker, you are considered a beneficial owner of those shares but are not the stockholder of

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record. In this circumstance, you are a stockholder whose shares are held in “street name” and your broker is considered the stockholder of record. If you hold your shares in street name, you may vote by following your broker’s instructions or, in order to vote in person at the applicable special meeting, you must comply with the procedures described above.
Q:
What vote is required to approve the merger proposals and the adjournment proposals?
A:
Approval of the ANR merger proposal requires approval by ANR stockholders holding a majority of the voting power of the outstanding shares of ANR common stock as of the ANR record date. Approval of the ANR adjournment proposal requires the affirmative vote of the ANR stockholders holding a majority of the voting power as of the ANR record date that is present in person or represented by proxy at the ANR special meeting and entitled to vote on the ANR adjournment proposal. A holder of Class C-1 common stock of ANR can cast one vote for each share of Class C-1 common stock of ANR owned, and a holder of Class C-2 common stock of ANR can cast 1.187 votes for each share of Class C-2 common stock of ANR owned. All 4,223,400 shares of Class C-2 common stock of ANR outstanding are held by Holdings and, in the aggregate, constitute 23.96% of the voting power of the outstanding shares of ANR common stock. Pursuant to the terms of the merger agreement, Holdings has agreed to vote all such shares in favor of the ANR merger proposal if the Holdings merger proposal is approved at the Holdings special meeting.
Approval of the Holdings merger proposal requires approval by Holdings stockholders holding a majority of the outstanding shares of Holdings common stock as of the Holdings record date. Approval of the Holdings adjournment proposal requires the affirmative vote of the holders of a majority of the total Holdings Common Stock as of the Holdings record date that is present in person or represented by proxy at the Holdings special meeting and entitled to vote on the Holdings adjournment proposal.
Q:
How does the Alpha board of directors recommend that Alpha stockholders vote?
A:
ANR’s board of directors unanimously recommends that holders of ANR common stock vote “ FOR ” the ANR merger proposal and “ FOR ” the ANR adjournment proposal.
Holdings’ board of directors unanimously recommends that holders of Holdings common stock vote “ FOR ” the Holdings merger proposal and “ FOR ” the Holdings adjournment proposal.
Q:
What should Alpha stockholders do now in order to vote on the proposals being considered at the applicable special meeting?
A:
ANR stockholders and Holdings stockholders may vote in person or by proxy at the ANR special meeting and the Holdings special meeting, respectively. If you hold your shares in your name as a stockholder of record of the applicable company, you may cast your vote in one of four ways:
•
By Internet . The web address for Internet voting can be found on the enclosed proxy card. Internet voting is available 24 hours a day. To be valid, your vote by Internet must be received by the deadline specified on the proxy card.
•
By Telephone . The telephone number for telephone voting can be found on the enclosed proxy card and is available 24 hours a day. To be valid, your vote by telephone must be received by the deadline specified on the proxy card.
•
By Mail . Mark the enclosed proxy card, sign and date it, and return it in the postage prepaid envelope provided. To be valid, your vote by mail must be received by the deadline specified on the proxy card.
•
At the Special Meeting . You can vote your shares in person at the applicable special meeting. You must present an acceptable form of identification (such as a valid driver’s license) in order to enter the applicable special meeting.
If you hold your shares in street name, you may vote by following your broker’s instructions or, in order to vote in person at the applicable special meeting, you must bring (i) an acceptable form of identification, such as a driver’s license, (ii) a “legal proxy” form from the broker, and (iii) an account statement or other acceptable evidence showing

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that you were the beneficial owner of Class C-1 common stock on the ANR record date or Holdings common stock on the Holdings record date, as applicable.
Q:
What will happen if I abstain from voting, fail to vote or do not direct how to vote on my proxy?
A:
If you abstain from voting with respect to a merger proposal or fail to either submit a proxy card or vote in person at the applicable special meeting with respect to such merger proposal, then based on applicable voting standards, it will have the same effect as a vote “ AGAINST ” that merger proposal. If you hold shares indirectly through a broker and fail to instruct your broker with respect to the applicable merger proposal, your broker will not have discretionary authority to vote your shares with respect to that proposal, which will also have the same practical effect as a vote “ AGAINST ” the applicable merger proposal.
If you abstain from voting with respect to an adjournment proposal, it will be counted for the purposes of determining whether there is a quorum and will have the same effect as a vote “ AGAINST ” the applicable adjournment proposal. If you fail to vote in person or by proxy or you hold shares in street name and fail to instruct your broker with respect to the applicable adjournment proposal, it will have no effect on the applicable adjournment proposal.
Q:
Will there be any broker non-votes?
A:
A broker non-vote occurs when a broker holding shares for a beneficial owner ( i.e. , where shares are held in “street name”) does not receive voting instructions from the beneficial owner. Since the ANR merger proposal, the ANR adjournment proposal, the Holdings merger proposal and the Holdings adjournment proposal are all non-routine matters, brokers will not have discretionary authority to vote shares held for a beneficial owner that does not provide voting instructions.
Q:
Can I change or revoke my vote after I have delivered my proxy?
A:
Yes. You can change your vote at any time before your proxy is voted at the applicable special meeting. If you are a stockholder of record, you can do this by timely:
•
resubmitting your proxy on a later date via the Internet or by telephone and following appropriate instructions;
•
executing and mailing a proxy card that is dated and received on a later date (which must be received no later than [●], 2018);
•
notifying the Secretary of ANR or Holdings, as applicable, in writing, at 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620, before the applicable special meeting that you have revoked your proxy (which notification must be received by the close of business on [●], 2018); or
•
voting in person at the applicable special meeting, although attendance at the special meeting will not by itself revoke a proxy.
If your shares are held in street name, you should contact your broker to change your vote.
Q:
What should Alpha stockholders do if they receive more than one set of voting materials?
A:
If you receive more than one proxy card for the ANR special meeting or more than one proxy card for the Holdings special meeting, your shares may be registered in more than one name or in different accounts. Please complete, date, sign and return each proxy card to ensure that all your shares are voted.
Q:
When can Alpha stockholders expect to receive the merger consideration?
A:
As soon as reasonably practicable after the closing of the mergers, and in any event within three business days thereafter, Contura will cause the exchange agent to mail to each holder of record of Holdings common stock or Class C-1 common stock, a letter of transmittal and instructions explaining how to surrender stock certificates or book-entry shares representing shares of Holdings common stock or Class C-1 common stock, as applicable, in exchange for the merger consideration.

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Q:
May I transfer shares of Alpha common stock before the Alpha special meetings?
A:
Yes. If you transfer your shares of ANR common stock or Holdings common stock after the applicable record date but before the applicable special meeting, you will retain your right to vote at the applicable special meeting, but you will have transferred the right to receive the merger consideration in the mergers. In order to receive the merger consideration, you must hold your shares through the completion of the mergers.
Q:
What are the expected U.S. federal income tax consequences of the mergers to Alpha stockholders?
A:
Contura expects each merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”). The completion of the mergers is not conditioned on the receipt of an opinion of counsel to that effect, and neither Alpha nor Contura intends to request a ruling from the Internal Revenue Service (the “IRS”) regarding the qualification of either merger as a “reorganization.” Accordingly, no assurance can be given that the IRS will not challenge the treatment of either merger as a “reorganization” or that a court would not sustain such a challenge.
Assuming that the applicable merger qualifies as a reorganization, U.S. Holders (as defined in the section entitled “Material United States Federal Income Tax Consequences of the Mergers” below) who exchange their Holdings common stock or Class C-1 common stock, as applicable, for the consideration being paid in the merger will not recognize any gain or loss upon the receipt of the merger consideration except with respect to cash received in lieu of a fractional share of Contura common stock and except as hereinafter provided.
Provided that Alpha is not (and has not been during the relevant period) a “United States real property holding corporation” under Section 897 of the Code (a “USRPHC”), a non-U.S. Holder will generally not recognize any gain or loss upon the receipt of the merger consideration in the merger.
The federal income tax consequences of the mergers in the event that either merger does not qualify as a “reorganization” for U.S. federal income tax purposes or in the event that Alpha is (or has been during the relevant period) a USRPHC are discussed below under “Material United States Federal Income Tax Consequences of the Mergers.”
Each Alpha stockholder should carefully read the discussion under “Material United States Federal Income Tax Consequences of the Mergers” and should consult its own tax advisor for a full understanding of the tax consequences of the mergers to such Alpha stockholder.
Q:
Who can help answer my questions?
A:
If you have any questions about the mergers or the special meetings, or if you need additional copies of this joint proxy statement and prospectus or the enclosed proxy card, you should contact:
[●]

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SUMMARY
The following is a summary that highlights information contained in this joint proxy statement and prospectus. This summary does not contain all of the information that might be important to you. For a more complete description of the merger agreement and the transactions contemplated by the merger agreement, including the mergers and the issuance of shares of Contura common stock pursuant to the merger agreement, we encourage you to read carefully this entire joint proxy statement and prospectus, including the attached annexes.
Information about the Companies (see page 167)
Contura
Contura is a large scale, diversified provider of met and steam coal to a global customer base. Contura operates high-quality, cost-competitive coal mines across coal basins in Virginia, West Virginia and Pennsylvania, complemented by a Trading and Logistics business. Contura currently operates four mining complexes, comprised of seven underground mines, two surface mines and four coal preparation plants. Contura’s Trading and Logistics business focuses on the sale of third-party coal into the international market. Contura owns a 65.0% interest in Dominion Terminal Associates (“DTA”), a coal export terminal in eastern Virginia. Contura’s principal executive offices are located at 340 Martin Luther King Jr. Blvd., Bristol, Tennessee 37620 and its telephone number is (423) 573-0300.
Holdings
Alpha Natural Resources Holdings, Inc., a Delaware corporation, was incorporated pursuant to the restructuring transactions described in the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as Modified, dated May 27, 2016 (the “Plan of Reorganization”). Holdings does not own any assets or properties other than 4,223,400 shares of Class C-2 common stock, and Holdings does not have, and has never had since its incorporation, any employees, has not engaged in any activities or business and has incurred no liabilities or obligations, in each case, other than those incident to its ownership of Class C-2 common stock. Holdings’ principal executive offices are located at 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620, and its telephone number is (423) 574-5100.
ANR
ANR, Inc., a Delaware corporation, was incorporated pursuant to the Plan of Reorganization. Together with its subsidiaries, ANR is a large scale, diversified provider of met and steam coal to a global customer base. ANR currently operates four mining complexes located in West Virginia, comprised of fourteen underground mines, seven surface mines and nine coal preparation plants. As of June 30, 2018, Alpha had approximately 2,700 employees. ANR’s principal executive offices are located at 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620, and its telephone number is (423) 574-5100.
The Mergers (see page 78)
What Alpha Stockholders Will Receive in the Mergers (see page 147)
If the mergers are completed, each share of Holdings common stock and each share of Class C-1 common stock, in each case outstanding immediately prior to the effective times of the mergers (other than shares held directly by Holdings, ANR or Contura and shares held by any holder of Holdings common stock or Class C-1 common stock with respect to which appraisal rights have been properly demanded and not properly withdrawn), will be converted into the right to receive 0.4071 fully paid and nonassessable shares of Contura common stock, subject to adjustment for stock splits and similar events as provided in the merger agreement. All shares of Class C-2 common stock and all shares of Holdings common stock and Class C-1 common stock held by Holdings, ANR or Contura will be canceled for no consideration in connection with the mergers. No fraction of a share of Contura common stock will be issued in the mergers and instead holders of Holdings common stock or Class C-1 common stock who would otherwise be entitled to receive a fraction of a share of Contura common stock will receive an amount in cash, as further described under “The Merger Agreement—Merger Consideration” beginning on page 147.

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Contura’s Reasons for the Mergers (see page 90)
In evaluating the mergers, the Contura board of directors consulted with Contura’s management, as well as Contura’s legal and financial advisors and, in reaching its decision to approve the merger agreement and the transactions contemplated thereby, the Contura board of directors considered a number of factors, including those listed in “The Mergers — Contura’s Reasons for the Mergers” beginning on page 90.
Alpha’s Reasons for the Mergers (see page 92)
In evaluating the mergers, the ANR board of directors (the “ANR board”) and the Holdings board of directors each consulted with Alpha’s management, as well as Alpha’s legal and financial advisors and, in reaching their respective decisions to approve the merger agreement and the transactions contemplated thereby, the ANR board of directors and the Holdings board of directors considered a number of factors, including those listed in “The Mergers — Alpha’s Reasons for the Mergers; Recommendation of the Alpha Board of Directors” beginning on page 92.
Treatment of Alpha Equity Awards (see page 149)
Immediately prior to the effective time of the mergers, each outstanding option to purchase Class C-1 common stock (an “ANR Option”), whether or not vested, will be automatically converted into the number of shares of Class C-1 common stock equal in value (based on a per share value equivalent to the weighted average price of Contura common stock during a 15 trading day period ending on the second to last trading day prior to the mergers, multiplied by the exchange ratio) to the aggregate intrinsic (or “in-the-money”) value of such ANR Option (the “Per ANR Share Price”). Such Class C-1 common stock will be issued to the applicable ANR Option holder as book-entry shares and will be subject to applicable withholding taxes. Each holder will be given the opportunity to elect, which election must be made prior to the beginning of the period during which the Per ANR Share Price will be measured, whether to satisfy the applicable tax withholding obligation by paying cash or by reducing the number of shares of Class C-1 common stock that will be delivered to such holder. If no election is timely made by a holder, such holder will be deemed to have elected to pay the withholding tax by reducing the number of shares of Class C-1 common stock that will be delivered to such holder. As of the effective time of the mergers, shares of Class C-1 common stock received in connection with the conversion of the ANR Options will be converted into Contura common stock on the same terms as are applicable to other ANR stockholders, as set forth in “Summary — The Mergers — What Alpha Stockholders Will Receive in the Mergers” beginning on page 6.
At the effective time of the mergers, each outstanding ANR restricted stock unit (an “ANR RSU”) granted under any ANR equity-based plan, whether or not then vested, will be assumed by Contura and converted automatically into a restricted stock unit relating to shares of Contura common stock (a “Contura RSU”). The number of shares of Contura common stock underlying the Contura RSU award will be calculated by multiplying the number of ANR RSUs held by the holder immediately prior to the effective time of the mergers by the exchange ratio. Each Contura RSU will otherwise be subject to the same terms and conditions (including as to continued vesting) as were applicable to the corresponding ANR RSU.
Recommendation of the Alpha Board of Directors (see page 92)
ANR’s board of directors unanimously recommends that holders of ANR common stock vote “ FOR ” the ANR merger proposal and “ FOR ” the ANR adjournment proposal.
Holdings’ board of directors unanimously recommends that holders of Holdings common stock vote “ FOR ” the Holdings merger proposal and “ FOR ” the Holdings adjournment proposal.
Special Meeting of Stockholders of ANR (see page 68)
ANR plans to hold the ANR special meeting at [●] on [●], 2018 at [●] [a.m.][p.m.] local time. At the ANR special meeting, ANR stockholders will be asked to vote on the following proposals:
•
to adopt the merger agreement; and

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•
to approve of one or more adjournments of the ANR special meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the foregoing proposal if there are not otherwise sufficient votes to approve the proposal.
ANR stockholders are being asked to vote on the ANR merger proposal in order to satisfy the requirements of Section 251 of the DGCL and a condition to the mergers contained in the merger agreement.
You can vote at the ANR special meeting to approve the ANR merger proposal if you owned ANR common stock as of the ANR record date. As of the ANR record date, there were [●] shares of Class C-1 common stock and 4,223,400 shares of Class C-2 common stock outstanding. A holder of Class C-1 common stock can cast one vote for each share of Class C-1 common stock owned on the ANR record date, and a holder of Class C-2 common stock can cast 1.187 votes for each share of Class C-2 common stock owned on the ANR record date. All 4,223,400 shares of Class C-2 common stock of ANR outstanding are held by Holdings and, in the aggregate, constitute 23.96% of the voting power of the outstanding shares of ANR common stock. Pursuant to the terms of the merger agreement, Holdings has agreed to vote all such shares in favor of the ANR merger proposal if the Holdings merger proposal is approved at the Holdings special meeting.
For additional and more information regarding voting at the ANR special meeting, see “ANR Special Meeting.”
If you hold outstanding shares of both Holdings Common Stock and ANR Common Stock, you will receive separate proxies for each of Holdings and ANR. You should complete, sign and return each proxy you receive or follow the internet instructions on each card.
Special Meeting of Stockholders of Holdings (see page 72)
Holdings plans to hold the Holdings special meeting at [●] on [●], 2018 at [●] [a.m.][p.m.] local time. At the Holdings special meeting, Holdings stockholders will be asked to vote on the following proposals:
•
to adopt the merger agreement; and
•
to approve of one or more adjournments of the Holdings special meeting, if necessary or appropriate, including adjournments to permit the further solicitation of proxies in favor of the foregoing proposal if there are not otherwise sufficient votes to approve the proposal.
Holdings stockholders are being asked to vote on the Holdings merger proposal in order to satisfy the requirements of Section 251 of the DGCL and a condition to the mergers contained in the merger agreement.
You can vote at the Holdings special meeting to approve the Holdings merger proposal if you owned Holdings common stock as of the Holdings record date. As of the Holdings record date, there were [●] shares of Holdings common stock outstanding. A holder of Holdings common stock is entitled to cast one vote for each share of Holdings common stock owned on the Holdings record date.
For additional and more information regarding voting at the Holdings special meeting, see “Holdings Special Meeting.”
If you hold outstanding shares of both Holdings Common Stock and ANR Common Stock, you will receive separate proxies for each of Holdings and ANR. You should complete, sign and return each proxy you receive or follow the internet instructions on each card.
Opinions of ANR’s Financial Advisors (see page 97)
BRG (see page 104)
On April 29, 2018, at a joint meeting of ANR’s board of directors and Holdings’ board of directors held to evaluate the mergers, BRG Valuation Services, LLC (“BRG”) rendered to Holdings’ board of directors an oral opinion, which was confirmed by delivery of the written opinion dated April 29, 2018, to the effect that, as of that date and based on and subject to the matters described in its opinion, the exchange ratio was fair, from a financial point of view to the holders of the Holdings common stock.

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The full text of BRG’s written opinion, dated April 29, 2018, is attached as Annex C to this joint proxy statement and prospectus. The opinion sets forth the assumptions made, procedures followed, matters considered and limitations of the review undertaken. BRG’s opinion was provided to Holdings’ board of directors in connection with its evaluation of the exchange ratio from a financial point of view to the existing holders of Holdings common stock. BRG’s opinion is not intended to be and does not constitute a recommendation to any stockholder as to how such stockholder should vote or act on any matters relating to the proposed Holdings merger.
For a further discussion of BRG’s opinion, see the section entitled “The Mergers — Opinion of Holdings’ Financial Advisor” and Annex C .
Moelis (see page 97)
In connection with the ANR merger, ANR’s board of directors received a written opinion, dated April 29, 2018, from ANR’s financial advisor, Moelis & Company LLC (“Moelis”), as to the fairness, from a financial point of view and as of the date of such opinion, to the holders of Class C-1 common stock of the exchange ratio set forth in the merger agreement. The full text of Moelis’ written opinion dated April 29, 2018, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex B to this joint proxy statement and prospectus and is incorporated herein by reference. Moelis’ opinion was provided for the use and benefit of ANR’s board of directors (in its capacity as such) in its evaluation of the ANR merger. Moelis’ opinion is limited solely to the fairness, from a financial point of view, of the exchange ratio to the holders of Class C-1 common stock and does not address ANR’s underlying business decision to effect the ANR merger or the relative merits of the ANR merger as compared to any alternative business strategies or transactions that might be available with respect to ANR. Moelis’ opinion does not constitute a recommendation to any stockholder as to how such stockholder should vote or act with respect to the mergers or any other matter.
For a further discussion of Moelis’ opinion, see the section entitled “The Mergers — Opinion of ANR’s Financial Advisor” and Annex B .
Opinion of Contura’s Financial Advisor (see page 114)
At the meeting of the Contura board of directors on April 29, 2018, Ducera Securities LLC (“Ducera”) rendered its oral opinion, which was subsequently confirmed in writing, to the effect that, as of the date of such opinion, and subject to the assumptions, limitations, qualifications and conditions described in such opinion, the exchange ratio was fair, from a financial point of view, to Contura.
The full text of the written opinion of Ducera, dated as of April 29, 2018, is attached as Annex D to this joint proxy statement and prospectus. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications, conditions and limitations on the scope of the review undertaken by Ducera in rendering its opinion. Ducera’s opinion is directed to the Contura board of directors and addresses only the fairness from a financial point of view of the exchange ratio to Contura. It does not constitute a recommendation to any holder of Contura common stock as to how to vote in connection with the mergers or whether to take any other action with respect to the mergers.
For a further discussion of Ducera’s opinion, see the section entitled “The Mergers — Opinion of Contura's Financial Advisor” and Annex D .
Board of Directors of the Combined Company Following Completion of the Mergers (see page 129)
Effective as of the closing of the mergers, the size of the combined company’s board of directors will be expanded to nine directors. Five board seats will be filled by the current members of Contura’s board of directors and four board seats will be filled by individuals designated by Alpha. The initial Alpha designees to be appointed to the combined company’s board of directors at closing are expected to be John E. Lushefski, Daniel J. Geiger, David J. Stetson and Harvey L. Tepner (who are each current members of the board of directors of Holdings), unless any of Messrs. Lushefski, Geiger or Tepner fails to meet applicable independence standards as of the closing, in which case such individual will not be appointed to the combined company’s board of directors at closing. If any of Messrs. Lushefski, Geiger, Stetson or Tepner is unable to or has declined to serve on the combined company’s board of directors prior to the closing (or is not appointed to the combined company’s board of directors because he failed to meet applicable independence standards as of the closing), Alpha may designate a

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replacement subject to the approval of Contura’s board of directors, which cannot be unreasonably withheld (unless such replacement fails to meet applicable independence standards, as determined by Contura’s board of directors in its reasonable discretion exercised in good faith).
Following the closing of the mergers and through the completion of the combined company’s 2019 annual meeting of stockholders, the size of the combined company’s board of directors may not be changed except to reduce the size of the board in the event of any resignation or other cessation of service of one or more directors, and the combined company’s board of directors must, subject to its fiduciary duties, nominate for election, unanimously recommend for election and solicit proxies in favor of the election of, each of the Alpha designees to the combined company’s board of directors.
Listing of Contura Common Stock (see page 31)
As a result of filing the registration statement on Form S-4 containing this joint proxy statement and prospectus with the SEC, Contura will become subject to certain reporting requirements under the Exchange Act. On or about the time that the mergers are completed, Contura intends to file a registration statement under the Exchange Act to register its common stock. That registration statement will subject Contura to additional reporting requirements and will permit Contura to apply to list its common stock on a securities exchange. It is a condition to the completion of the mergers that the shares of Contura common stock to be issued upon the consummation of the mergers be approved for listing on the NYSE, subject to official notice of issuance. It is anticipated that, following the mergers, shares of Contura’s common stock will be listed on the NYSE and traded under the symbol “CTRA.”
Comparison of Stockholders’ Rights (see page 273)
ANR and Holdings stockholders receiving the merger consideration will have different rights once they become stockholders of Contura due to differences between the governing corporate documents of ANR, Holdings and Contura. These differences are described in detail in the section entitled “Comparison of Stockholders’ Rights” beginning on page 273.
Accounting Treatment of the Mergers (see page 131)
The mergers will be accounted for in accordance with accounting principles generally accepted in the United States (“US GAAP”) and in accordance with the Financial Accounting Standards Board’s (“FASB”) Accounting Standards Codification Topic (“ASC”) 805—Business Combinations. Contura will be treated as the acquirer of Alpha for accounting and financial reporting purposes. The assets and liabilities of Alpha will be recorded, as of the completion of the mergers, at their fair values and consolidated with those of Contura. The purchase price will be determined based on the number of shares of common stock issued and the trading price of shares of Contura common stock on the date of the mergers. Contura will allocate the purchase price to the fair value of Alpha’s tangible and intangible assets and liabilities at the acquisition date, with the excess purchase price, if any, being recorded as goodwill. The operating results of Alpha will become part of the combined company beginning on the date of the mergers.
Appraisal / Dissenters’ Rights for Alpha Stockholders (see page 131)
Holders of Class C-1 common stock and holders of Holdings common stock are or may be entitled to appraisal rights under Section 262 of the DGCL, provided they fully comply with and follow the procedures and satisfy all of the conditions set forth in Section 262 of the DGCL. For more information regarding appraisal rights, see the section entitled “The Mergers— Appraisal / Dissenters’ Rights for Alpha Stockholders” beginning on page 131. In addition, a copy of the appraisal rights statute is included with this joint proxy statement and prospectus as Annex E . Failure to comply with Section 262 of the DGCL will result in your waiver of, or inability to exercise, appraisal rights.
Interests of Alpha’s Directors and Executive Officers in the Mergers (see page 138)
Some of ANR’s executive officers and members of the boards of directors of ANR and Holdings, in their capacities as such, have financial interests in the merger that are different from, or in addition to, their interests as stockholders and the interests of stockholders of ANR and Holdings generally.
These interests include the accelerated vesting and settlement of equity awards, arrangements that provide for severance benefits if the employment of an ANR executive officer is terminated under specified circumstances in connection with the

10


mergers, an insurance policy and certain reimbursement arrangements for potential financial losses suffered by an ANR executive officer in connection with certain change in control related payments under Section 4999 of the Internal Revenue Code, and rights to indemnification and director’s and officer’s liability insurance that will survive the completion of the mergers.
The members of ANR’s and Holdings’ boards of directors were aware of and considered these interests, among other matters, in evaluating and negotiating the merger agreement and the mergers, and in recommending that ANR and Holdings stockholders approve the applicable merger.
Non-Solicitation (see page 153)
Alpha has agreed, and agreed to cause its subsidiaries and its and their respective officers, directors, employees and representatives, to cease any solicitation, encouragement, discussion or negotiation with any party (other than Contura or its representatives) with respect to an acquisition proposal (as defined on page 153).
In addition, Alpha has agreed that it will not, and will direct its subsidiaries and its and their respective officers, directors, employees and representatives not to, directly or indirectly:
•
initiate, solicit or knowingly encourage (including by way of furnishing non-public information related to Alpha or any of its subsidiaries) the submission of any inquiries, proposals, or offers that constitute, or may reasonably be expected to lead to, an acquisition proposal or engage in discussions or negotiations with respect thereto;
•
approve or recommend, or publicly propose to approve or recommend an acquisition proposal or enter into any agreement relating to an acquisition proposal or enter into any agreement, arrangement or understanding requiring Alpha to abandon, terminate or fail to consummate the mergers or any other transaction contemplated by the merger agreement or breach its obligations thereunder;
•
withdraw, modify or qualify, or propose to publicly withdraw, modify, or qualify, in a manner adverse to Contura, the recommendation to stockholders of either Holdings or ANR by its board of directors to adopt the merger agreement, which action is referred to as a “change of board recommendation”; or
•
take any action to exempt any person (other than Contura and its affiliates) from the restrictions contained in any takeover law or otherwise cause such restrictions not to apply.
Notwithstanding these restrictions, Alpha may, at any time prior to obtaining stockholder approval of the merger agreement at the Holdings and ANR special meetings, in response to an unsolicited bona fide written acquisition proposal that does not result from a breach of its non-solicitation obligations owed to Contura, which the boards of directors of Holdings and ANR determine in good faith (after consultation with outside counsel and financial advisors) constitutes or would reasonably be likely to lead to a superior proposal (as defined on page 154):
•
(i) furnish non-public information with respect to Alpha and its subsidiaries and (ii) provide access to Alpha’s books, records, facilities, properties, personnel, officers, directors, employees and representatives to the person making the acquisition proposal (and its representatives) pursuant to a confidentiality agreement not less restrictive in any material respect on the person than the existing confidentiality agreement between Contura and Alpha, provided that all the information was previously provided or made available to Contura, or is provided or made available to Contura promptly; and
•
participate in discussions or negotiations with the person making the acquisition proposal (and its representatives) regarding the acquisition proposal.
Alpha has agreed to promptly (but in any event within 24 hours) notify Contura in the event that it receives (including through any subsidiary or representative) any acquisition proposal, or any request for non-public information relating to it or its subsidiaries other than requests for information in its ordinary course of business or requests unrelated to an acquisition proposal, or any request for discussions or negotiations relating to a possible acquisition proposal. Alpha has also agreed to keep Contura reasonably informed in writing on a current basis of the status (including material terms and conditions and material modifications) of any such request, acquisition proposal or inquiry (including by providing notice of any material changes, developments or written communications within 24 hours).

11


Notwithstanding Alpha’s obligation not to cause a change of board recommendation, if prior to obtaining stockholder approval of the merger agreement, Alpha receives a written, bona fide acquisition proposal that does not result from a breach of its non-solicitation obligations owed to Contura, and Holdings’ and ANR’s boards of directors conclude in good faith (after consultation with outside counsel and financial advisors, after giving effect to all of the adjustments to the terms of the merger agreement proposed in writing by Contura in response to such acquisition proposal), that such acquisition proposal constitutes a superior proposal and the failure to take actions to effect a change of board recommendation would be reasonably likely to be inconsistent with their fiduciary duties under applicable law, then the Holdings board of directors and the ANR board of directors may at any time prior to obtaining the stockholder approval of the merger agreement, make a change of board recommendation, provided that Alpha fulfills the following conditions:
•
Alpha provides prior written notice, at least four business days in advance, advising Contura of its intention to take such action and specifying the material terms and conditions of the superior proposal (including the identity of the party making such a superior proposal);
•
at the request of Contura, during such four business day notice period, Alpha negotiates (and directs its financial and legal advisors to negotiate) with Contura in good faith to make any adjustments to the terms and conditions of the merger agreement proposed in writing by Contura; and
•
following any such negotiation described in the immediately preceding bullet point, such acquisition proposal continues to constitute a superior proposal.
If there are any material revisions to the terms of a superior proposal after the start of the aforementioned four business day notice period, Alpha must deliver a new written notice to Contura and the notice period will be deemed to have re-commenced on the date of such new notice, provided that the additional notice period will expire at the later of (i) the end of the original four business day notice period and (ii) the end of the second business day following the date on which Alpha delivers such new notice.
In addition, notwithstanding Alpha’s obligation not to cause a change of board recommendation, if prior to obtaining stockholder approval of the merger agreement, Holdings’ and ANR’s boards of directors determine in good faith (after consultation with outside counsel) that (i) subject to certain exceptions set forth in the merger agreement, based on a material event or change in circumstances that was not known, or if known, the consequences of which were not known or reasonably foreseeable by Alpha as of the date of the merger agreement, the failure to make a change of board recommendation would reasonably be expected to be inconsistent with their fiduciary duties under applicable law and (ii) the reasons for making such change of board recommendation are independent of any pending acquisition proposal, then Alpha may make a change of board recommendation, provided that it fulfills the following conditions:
•
Alpha provides a prior written notice at least four business days in advance advising Contura of its intention to take such action and specifying the material facts and information constituting the basis for such contemplated determination; and
•
at the request of Contura, during such four business day notice period, Alpha negotiates (and directs its financial and legal advisors to negotiate) with Contura in good faith to make any adjustments to the terms and conditions of the merger agreement proposed in writing by Contura which would allow each of Holdings’ and ANR’s boards of directors not to make a change of board recommendation consistent with its fiduciary duties.
Conditions to Completion of the Mergers (see page 158)
The obligations of each of Contura and Alpha to complete the mergers are subject to the satisfaction or waiver on or prior to the closing date of the mergers of the following conditions:
•
stockholder approval of the merger agreement at the Alpha special meetings and the approval of the Contura charter amendment (as described on page 146) by the Contura stockholders (which approval by the Contura stockholders has already been obtained);

12


•
the absence of any order, injunction, decree or other legal restraint issued by any governmental entity of competent jurisdiction, or other law, rule or legal restraint that is in effect and prevents the consummation of the mergers or other transactions contemplated by the merger agreement;
•
the absence of any proceeding by any governmental entity seeking to enjoin, restrain or otherwise prohibit any of the transactions contemplated by the merger agreement;
•
the expiration or early termination of the waiting periods applicable to the consummation of the mergers under the HSR Act without the imposition of a Materially Burdensome Condition (as defined on page 135) (such early termination of the applicable waiting period under the HSR Act was received on July 2, 2018); and
•
the continued effectiveness of the registration statement on Form S-4 of which this joint proxy statement and prospectus forms a part and absence of any stop order by the SEC suspending the effectiveness of such registration statement or proceedings of the SEC seeking a stop order.
The obligation of Contura to effect the mergers is further subject to satisfaction or waiver by Contura of the following conditions:
•
the representations and warranties of Alpha set forth in the merger agreement regarding the following matters must be true and correct in all respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date):
◦
the absence of any assets, properties, employees, activities and liabilities of Holdings other than with respect to its ownership of shares of Class C-2 common stock;
◦
the corporate power and authority to enter into the merger agreement and the approval of the merger agreement and the recommendation to adopt the merger agreement by Alpha’s board of directors;
◦
the absence of conflicts with organizational documents, contracts and applicable law resulting from the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement;
◦
the absence of required governmental consents in connection with the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement other than the governmental filings and consents specified in the merger agreement;
◦
the absence of a material adverse effect on Alpha (as described on page 150) since December 31, 2017;
◦
the affirmative vote required by Alpha stockholders to adopt the merger agreement;
◦
inapplicability of takeover laws;
◦
the receipt of opinions from Alpha’s financial advisors; and
◦
the absence of any obligation to pay brokers’ or finders’ fees;
•
the representations and warranties of Alpha set forth in the merger agreement relating to the capital structure of Alpha must be true and correct in all but de minimis respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date);
•
all other representations and warranties of Alpha set forth in the merger agreement must be true and correct (without giving effect to any materiality or material adverse effect qualifications contained in them) both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case

13


such representation or warranty must have been so true as of such earlier date), except where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Alpha;
•
Alpha must have performed in all material respects all obligations required to be performed by it under the merger agreement at or prior to the closing of the mergers;
•
Alpha must have furnished Contura with a certificate signed on its behalf by its chief executive officer or chief financial officer certifying as to the matters set forth above in the four immediately preceding bullets;
•
The number of shares of Holdings common stock and Class C-1 common stock with respect to which appraisal rights have been demanded (disregarding for such purposes any shares held by Alpha stockholders who also hold more than 1% of the outstanding shares of Contura common stock at the time of the Alpha special meetings and any shares in respect of which a demand for appraisal has been withdrawn) must not equal more than 10% of the total number of outstanding shares of Holdings common stock and Class C-1 common stock (this condition is referred to herein as the “appraisal rights condition”); and
•
Alpha must have obtained certain third party consents required under the merger agreement in form and substance reasonably satisfactory to Contura.
The obligation of Alpha to effect the mergers is further subject to satisfaction or waiver by Alpha of the following conditions:
•
the representations and warranties of Contura set forth in the merger agreement regarding the following matters must be true and correct in all respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date):
◦
the corporate power and authority to enter into the merger agreement and the approval of the merger agreement by Contura’s board of directors;
◦
the absence of conflicts with organizational documents, contracts and applicable law resulting from the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement;
◦
the absence of required governmental consents in connection with the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement other than the governmental filings and consents specified in the merger agreement;
◦
the absence of a material adverse effect on Contura (as described on page 149) since December 31, 2017;
◦
the affirmative vote required by Contura’s stockholders to approve the Contura charter amendment (as described on page 146) (which has already been obtained);
◦
the receipt of an opinion from Contura’s financial advisor; and
◦
the absence of any obligation to pay brokers’ or finders’ fees;
•
the representations and warranties of Contura set forth in the merger agreement relating to the capital structure of Contura must be true and correct in all but de minimis respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date);
•
all other representations and warranties of Contura set forth in the merger agreement must be true and correct (without giving effect to any materiality or material adverse effect qualifications contained in them) both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the

14


mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date), except where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Contura (as described on page 150);
•
Contura must have performed in all material respects all obligations required to be performed by it under the merger agreement at or prior to the closing of the mergers;
•
Contura must have furnished Alpha with a certificate signed on its behalf by its chief executive officer or chief financial officer certifying as to the matters set forth above in the four immediately preceding bullets;
•
The shares of Contura common stock to be issued upon the consummation of the mergers must have been authorized for listing on the New York Stock Exchange or NASDAQ, subject to official notice of issuance; and
•
Contura must have obtained stockholder approval of the Contura charter amendment (as described on page 146) (which has already been obtained) and must have filed the Contura charter amendment with the Secretary of State of the State of Delaware and the Contura charter amendment must be effective.
Termination of the Merger Agreement (see page 160)
At any time before the effective time of the mergers, whether or not the Alpha stockholders have adopted the merger agreement, the merger agreement may be terminated:
•
by mutual written consent of Contura and Alpha;
•
by either Alpha or Contura if:
◦
any court of competent jurisdiction or other governmental entity has issued an order, decree or ruling enjoining or otherwise prohibiting any of the transactions contemplated by the merger agreement, and such order, decree or ruling has become final and non-appealable, except under limited circumstances;
◦
the parties fail to consummate the mergers on or before the outside date of December 29, 2018, unless the breach of the merger agreement or failure to perform or comply in all material respects with the covenants in the merger agreement by the party seeking the termination was the primary cause of the failure to consummate the mergers by the outside date; or
◦
an Alpha special meeting has been convened, the stockholders of Holdings or ANR, as applicable, have voted, and the adoption of the merger agreement by the stockholders of Holdings or ANR, as applicable, was not obtained, provided that Alpha may not terminate the agreement under such circumstances if Holdings or ANR has breached its obligations relating to obtaining stockholder approval at such meetings; or
•
by Alpha:
◦
if Contura breaches its representations, warranties or covenants set forth in the merger agreement, which breach would result in a failure of certain of the conditions to the completion of the merger being satisfied and such breach is not cured by the earlier of the outside date or 30 days after the receipt of written notice thereof or is incapable of being cured within such period, except under limited circumstances;
◦
prior to the 25th business day after the date of the merger agreement, if the Contura charter amendment (as described on page 146) has not been approved by either (i) the beneficial owners of a majority of the outstanding shares of Contura common stock within three business days of the date of the merger agreement or (ii) the record holders of a majority of the outstanding shares of Contura common stock within 20 business days of the date of the merger agreement (the approvals under each of clause (i) and (ii) by the applicable Contura stockholders have already been obtained);

15


◦
if Contura has entered into a binding agreement to consummate, or consummates, a Contura Sale Transaction (as defined on page 135); or
◦
if following the Alpha special meetings, the appraisal rights condition has not been satisfied and Contura has not waived such condition within five business days of a written request from Alpha; or
•
by Contura:
◦
if Alpha breaches its representations, warranties or covenants set forth in the merger agreement, which breach would result in a failure of certain of the conditions to the completion of the mergers being satisfied and such breach is not cured by the earlier of the outside date or 30 days after the receipt of written notice thereof by ANR or is incapable of being cured within such period, except under limited circumstances; or
◦
prior to Alpha obtaining stockholder approval of the merger agreement at the Alpha special meetings, if (i) a change of board recommendation has occurred, (ii) the board of directors of Holdings or ANR has failed to recommend against any publicly announced acquisition proposal and reaffirm its recommendation of the mergers within 10 business days following the public announcement of such acquisition proposal and in any event at least four business days prior to the Alpha special meetings (iii) Alpha has failed to include the recommendation of the mergers by the board of directors of Holdings and ANR in this joint proxy statement and prospectus or (iv) ANR or Holdings has materially breached its non-solicitation obligations or obligations to recommend that its stockholders vote in favor of the adoption of the merger agreement.
Termination Fees (see page 161)
Alpha is required to pay Contura a termination fee of $19 million if:
•
Contura terminates the merger agreement because:
◦
there has been a material breach of ANR’s or Holdings’ non-solicitation obligations; or
◦
the board of directors of Holdings or ANR changes its recommendation that the Alpha stockholders vote in favor of the mergers or have failed to recommend against any publicly announced acquisition proposal and reaffirm its recommendation of the mergers within 10 business days following the public announcement of such acquisition proposal and in any event at least four business days prior to the Alpha special meetings; or
•
Contura or Alpha terminates the merger agreement because the Alpha stockholders do not approve the mergers at the Alpha special meetings and Contura would have been able to terminate the merger agreement in connection with the matters described in the preceding bullet; or
•
(i) an acquisition proposal is made (and not withdrawn), (ii) thereafter (a) Contura or Alpha terminates the merger agreement because (x) approval of the mergers is not obtained at the Alpha special meetings or (y) the transactions contemplated by the merger agreement have not been consummated by the outside date or (b) Contura terminates the merger agreement because the representations, warranties or covenants of Alpha are breached such that there is a failure of the related closing condition and (iii) within 12 months after the date of the termination, Alpha enters into a definitive agreement to consummate an acquisition proposal, or consummates any acquisition proposal, in each case, meeting certain requirements set forth in the merger agreement.
Alpha is also required to reimburse Contura for Contura’s fees and expenses incurred in connection with the transactions contemplated by the merger agreement if the merger agreement is terminated because Alpha’s stockholders fail to approve the merger agreement at the Alpha special meetings. This reimbursement is limited to $9 million and will be credited against the aforementioned $19 million termination fee in the event such termination fee becomes payable by Alpha.
Contura is required to pay Alpha a termination fee of $19 million if (i) the merger agreement is terminated because an order, decree or ruling issued under antitrust law prohibits the consummation of the transactions contemplated by the merger agreement or (ii) the merger agreement is terminated because the mergers have not closed by the outside date and, in either case, all closing conditions are satisfied except for closing conditions relating to matters arising under antitrust laws.

16


SELECTED HISTORICAL CONSOLIDATED AND COMBINED FINANCIAL DATA OF CONTURA
The following table presents selected historical consolidated and combined financial data of Contura Energy, Inc. (“Contura”) for the six months ended June 30, 2018 and 2017, as of June 30, 2018, and as of and for the most recent five fiscal periods. The term “Successor” refers to Contura and its subsidiaries for periods beginning as of July 26, 2016 and thereafter. The term “Predecessor” refers to Contura on a carve-out basis using Alpha Natural Resources, Inc.’s (“Old Alpha’s”) historical basis and our assets, liabilities and operating results while they were under Old Alpha’s ownership. The selected historical consolidated and combined financial data of Contura has been recast for all periods presented to reflect the retrospective adoption of ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash and ASU 2017-07, Compensation-Retirement Benefits (Topic 715): Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost .
The selected historical consolidated financial data for the six months ended June 30, 2018 and 2017, and as of June 30, 2018, are derived from Contura’s unaudited condensed consolidated financial statements for the six months ended June 30, 2018, which are included elsewhere in this joint proxy statement and prospectus. In management’s opinion, Contura’s unaudited condensed consolidated financial statements have been prepared on the same basis as the audited consolidated financial statements and include all adjustments, consisting only of ordinary recurring adjustments, necessary for a fair presentation of the information for the periods presented.
The selected historical consolidated and combined financial data for the year ended December 31, 2017, for the Successor period from July 26, 2016 to December 31, 2016, for the Predecessor period from January 1, 2016 to July 25, 2016, and for the year ended December 31, 2015, and as of December 31, 2017 and 2016, have been derived from Contura’s audited consolidated and Predecessor combined financial statements for the year ended December 31, 2017, which are included elsewhere in this joint proxy statement and prospectus. The selected historical combined financial data for the Predecessor year ended December 31, 2014 and as of December 31, 2015 have been derived from the audited Predecessor financial statements that are not included in this joint proxy statement and prospectus.
The selected historical combined financial data for the Predecessor year ended December 31, 2013, and as of July 25, 2016 and December 31, 2014, and 2013, have been derived from Contura’s unaudited financial statements, which are not included in this joint proxy statement and prospectus. As a result of Contura’s acquisition of certain Old Alpha core coal operations in connection with Old Alpha’s restructuring, the Successor consolidated financial statements on and after July 25, 2016 are not comparable with the Predecessor combined financial statements prior to that date. Refer to Note 1 to Contura’s audited consolidated and predecessor combined financial statements for the year ended December 31, 2017, included elsewhere in this joint proxy statement and prospectus.
Our Predecessor combined financial statements and condensed combined financial statements include allocations of expenses for certain corporate functions historically performed by Old Alpha, including, but not limited to, general corporate expenses related to finance, legal, information technology, human resources, communications, employee benefits and incentives, insurance and stock-based compensation. These costs may not be representative of costs incurred by Contura as an independent company. Consequently, the financial information included here may not necessarily reflect our financial position, results of operations and cash flows in the future or what our financial condition, results of operations and cash flows would have been had we been an independent company during the periods presented.
The selected historical consolidated and combined financial data set forth below is only a summary and is not necessarily indicative of the results of future operations of Contura, and should be read in conjunction with (i) Contura’s audited consolidated and Predecessor combined financial statements for the year ended December 31, 2017 and the related notes thereto (ii) Contura’s unaudited condensed consolidated financial statements for the six months ended June 30, 2018, and the related notes thereto (iii) the section captioned “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Management’s Discussion and Analysis of Financial Condition and Results of Operations of Contura” and (iv) the section captioned “Selected Unaudited Pro Forma Condensed Combined Financial Information” included elsewhere in this joint proxy statement and prospectus.

17


SELECTED HISTORICAL CONSOLIDATED AND COMBINED FINANCIAL DATA OF CONTURA
(Amounts in thousands, except share and per share data)
 
Successor
 
 
Predecessor
 
For the Six Months Ended June 30, 2018
 
For the Six Months Ended June 30, 2017
 
For the Year Ended December 31, 2017
 
For the Period from July 26, 2016 to December 31, 2016
 
 
For the Period from January 1, 2016 to July 25, 2016
 
For the
Year Ended December 31,
 
 
 
 
 
 
2015
 
2014
 
2013
Statements of Operations Data:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Revenues:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Coal revenues
$
1,003,533

 
$
780,900

 
$
1,392,481

 
$
431,692

 
 
$
344,692

 
$
816,010

 
$
1,027,387

 
$
982,738

Freight and handling revenues
—

 
129,919

 
247,402

 
70,544

 
 
52,076

 
97,237

 
98,109

 
123,641

Other revenues
7,717

 
3,968

 
10,086

 
4,060

 
 
14,343

 
12,774

 
17,262

 
34,458

Total revenues
1,011,250

 
914,787

 
1,649,969

 
506,296

 
 
411,111

 
926,021

 
1,142,758

 
1,140,837

Costs and expenses:


 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
Cost of coal sales (exclusive of items shown separately below)
629,128

 
571,320

 
1,089,829

 
324,590

 
 
310,281

 
709,993

 
770,611

 
832,498

Freight and handling costs
176,976

 
129,919

 
247,402

 
70,544

 
 
52,076

 
97,237

 
98,109

 
123,641

Depreciation, depletion and amortization
22,810

 
17,788

 
34,910

 
5,973

 
 
66,076

 
149,197

 
148,137

 
136,450

Amortization of acquired intangibles, net
11,310

 
34,243

 
59,007

 
61,281

 
 
11,567

 
2,223

 
420

 
1,969

Selling, general and administrative expenses (exclusive of depreciation and amortization shown separately above)
31,108

 
40,148

 
67,459

 
19,135

 
 
29,568

 
44,158

 
52,256

 
45,440

Asset impairment and restructuring (1)
—

 
—

 
—

 
—

 
 
3,096

 
297,425

 
6,732

 
7,180

Goodwill impairment (2)
—

 
—

 
 
 
—

 
 
—

 
—

 
70,017

 
5,912

Merger related costs
3,883

 
—

 
—

 
—

 
 
—

 
—

 
—

 
—

Secondary offering costs (3)
—

 
3,438

 
4,491

 
—

 
 
—

 
—

 
—

 
—

Total other operating (income) loss:


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Gain on disposal of assets
(16,502
)
 
—

 
—

 
—

 
 
—

 
—

 
—

 
—

Mark-to-market adjustment for acquisition-related obligations
—

 
2,382

 
3,221

 
(10,616
)
 
 
—

 
—

 
—

 
—

Gain on settlement of acquisition-related obligations
(292
)
 
(9,200
)
 
(38,886
)
 
—

 
 
—

 
—

 
—

 
—

Other expenses
288

 
81

 
178

 
—

 
 
2,184

 
(99
)
 
2,220

 
12,465

Total costs and expenses
858,709

 
790,119

 
1,467,611

 
470,907

 
 
474,848

 
1,300,134

 
1,148,502

 
1,165,555

Income (loss) from operations
152,541

 
124,668

 
182,358

 
35,389

 
 
(63,737
)
 
(374,113
)
 
(5,744
)
 
(24,718
)
Other (expense) income:


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Interest expense
(17,984
)
 
(19,614
)
 
(35,977
)
 
(20,496
)
 
 
(2
)
 
(28
)
 
(101
)
 
(143
)
Interest income
322

 
73

 
210

 
23

 
 
19

 
4

 
4

 
763

Mark-to-market adjustment for warrant derivative liability
—

 
—

 
—

 
(33,975
)
 
 
—

 
—

 
—

 
—

Loss on early extinguishment of debt
—

 
(38,701
)
 
(38,701
)
 
—

 
 
—

 
—

 
—

 
—

Bargain purchase gain
—

 
642

 
1,011

 
7,719

 
 
—

 
—

 
—

 
—

Equity loss in affiliates
(1,233
)
 
(1,709
)
 
(3,339
)
 
(2,287
)
 
 
(2,735
)
 
(7,712
)
 
(9,831
)
 
(7,546
)
Miscellaneous income, net
(583
)
 
(192
)
 
194

 
(139
)
 
 
(13,978
)
 
(20,904
)
 
(20,441
)
 
(19,479
)
Total other expense, net
(19,478
)
 
(59,501
)
 
(76,602
)
 
(49,155
)
 
 
(16,696
)
 
(28,640
)
 
(30,369
)
 
(26,405
)

18


 
Successor
 
 
Predecessor
 
For the Six Months Ended June 30, 2018
 
For the Six Months Ended June 30, 2017
 
For the Year Ended December 31, 2017
 
For the Period from July 26, 2016 to December 31, 2016
 
 
For the Period from January 1, 2016 to July 25, 2016
 
For the
Year Ended December 31,
 
 
 
 
 
 
2015
 
2014
 
2013
Income (loss) from continuing operations before reorganization items and income taxes
133,063

 
65,167

 
105,756

 
(13,766
)
 
 
(80,433
)
 
(402,753
)
 
(36,113
)
 
(51,123
)
Reorganization items, net
—

 
—

 
—

 
—

 
 
(20,989
)
 
(10,085
)
 
—

 
—

Income (loss) from continuing operations before income taxes
133,063

 
65,167

 
105,756

 
(13,766
)
 
 
(101,422
)
 
(412,838
)
 
(36,113
)
 
(51,123
)
Income tax (expense) benefit
(121
)
 
(15,811
)
 
67,979

 
1,920

 
 
39,881

 
155,052

 
4,476

 
38,958

Net income (loss) from continuing operations
132,942

 
49,356

 
173,735

 
(11,846
)
 
 
(61,541
)
 
(257,786
)
 
(31,637
)
 
(12,165
)
Discontinued operations:


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(Loss) income from discontinued operations before income taxes
(2,213
)
 
(4,000
)
 
(36,894
)
 
1,467

 
 
(679
)
 
(259,317
)
 
(33,972
)
 
54,941

Income tax (expense) benefit from discontinued operations
—

 
2,366

 
17,681

 
(551
)
 
 
(4,992
)
 
99,543

 
13,264

 
(5,156
)
(Loss) income from discontinued operations
(2,213
)
 
(1,634
)
 
(19,213
)
 
916

 
 
(5,671
)
 
(159,774
)
 
(20,708
)
 
49,785

Net income (loss)
$
130,729

 
$
47,722

 
$
154,522

 
$
(10,930
)
 
 
$
(67,212
)
 
$
(417,560
)
 
$
(52,345
)
 
$
37,620

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Basic income (loss) per common share: (4)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
13.87

 
$
4.79

 
$
17.01

 
$
(1.15
)
 
 
 
 
 
 
 
 
 
(Loss) income from discontinued operations
(0.23
)
 
(0.16
)
 
(1.89
)
 
0.09

 
 
 
 
 
 
 
 
 
Net income (loss)
$
13.64

 
$
4.63

 
$
15.12

 
$
(1.06
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Diluted income (loss) per common share: (4)
 
 
 
 
 
 


 
 
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
12.91

 
$
4.57

 
$
16.13

 
$
(1.15
)
 
 
 
 
 
 
 
 
 
(Loss) income from discontinued operations
(0.22
)
 
(0.15
)
 
(1.78
)
 
0.09

 
 
 
 
 
 
 
 
 
Net income (loss)
$
12.69

 
$
4.42

 
$
14.35

 
$
(1.06
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Weighted average shares - basic
9,587,457

 
10,309,520

 
10,216,464

 
10,309,310

 
 
 
 
 
 
 
 
 
Weighted average shares - diluted
10,299,539

 
10,801,228

 
10,770,005

 
10,309,310

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Statement of Cash Flows Data: (5)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Net cash provided by (used in):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating activities
$
115,606

 
$
186,214

 
$
314,260

 
$
21,459

 
 
$
77,029

 
$
155,052

 
$
165,103

 
$
274,457

Investing activities
$
(50,106
)
 
$
(50,027
)
 
$
(121,307
)
 
$
108,352

 
 
$
(25,029
)
 
$
(97,034
)
 
$
(114,561
)
 
$
(118,008
)
Financing activities
$
(13,288
)
 
$
(6,660
)
 
$
(170,282
)
 
$
41,478

 
 
$
(35,822
)
 
$
(53,585
)
 
$
(50,568
)
 
$
(156,542
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

19


 
Successor
 
 
Predecessor
 
As of June 30, 2018
 
As of December 31, 2017
 
As of December 31, 2016
 
 
As of July 25, 2016
 
As of December 31,
 
 
 
 
 
 
2015
 
2014
 
2013
Balance Sheet Data (at period end):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cash and cash equivalents
$
199,252

 
$
141,924

 
$
127,948

 
 
$
100

 
$
227

 
$
6

 
$
32

Working capital (6)
$
352,236

 
$
234,595

 
$
222,917

 
 
$
(3,888
)
 
$
76,711

 
$
56,209

 
$
12,774

Total current and non-current assets - discontinued operations
$
26,231

 
$
48,130

 
$
190,454

 
 
$
401,543

 
$
404,363

 
$
679,851

 
$
654,281

Total assets
$
902,071

 
$
836,600

 
$
946,752

 
 
$
1,590,256

 
$
1,715,410

 
$
2,429,213

 
$
2,536,057

Notes payable and long-term debt, including current portion, net
$
367,084

 
$
372,703

 
$
346,994

 
 
$
95

 
$
136

 
$
1,867

 
$
2,770

Total current and non-current liabilities - discontinued operations
$
26,220

 
$
61,876

 
$
164,709

 
 
$
225,964

 
$
197,383

 
$
241,173

 
$
209,813

Total liabilities (7)
$
676,925

 
$
743,952

 
$
909,528

 
 
$
470,003

 
$
501,513

 
$
764,871

 
$
799,550

Stockholders’ equity/Predecessor business equity
$
225,146

 
$
92,648

 
$
37,224

 
 
$
1,120,253

 
$
1,213,897

 
$
1,664,342

 
$
1,736,507

______________
(1)
Asset impairment and restructuring expenses for 2015 include long-lived asset impairment charges of $224,139 and $72,012 related to asset groups within the NAPP and CAPP segments, respectively.
(2)
Goodwill impairment for 2014 includes impairment charges of $70,017 within the CAPP segment.
(3)
Secondary offering costs reflect expenses incurred in connection with the withdrawn secondary offering of our common stock.
(4)
Historical basic income (loss) per share is calculated based on the weighted average common shares outstanding for the six months ended June 30, 2018, for the year ended December 31, 2017 and for the period from July 26, 2016 to December 31, 2016. For the six months ended June 30, 2018 and for the year ended December 31, 2017, the dilutive effect of stock options and stock-based instruments is considered when calculating the diluted earnings per share as the Company generated net income during these periods. There was no dilutive effect to common shares outstanding for the period from July 26, 2016 to December 31, 2016 as in periods of net loss, the number of shares used to calculate diluted earnings per share is the same as basic earnings per share.
(5)
Cash flow data includes discontinued operations.
(6)
Working capital calculation includes cash and cash equivalents but excludes discontinued operations.
(7)
Total liabilities as of July 25, 2016 and December 31, 2015 include $35,693 and $72,242, respectively, of liabilities subject to compromise related to Alpha’s bankruptcy filing.

20


SELECTED HISTORICAL FINANCIAL DATA OF HOLDINGS
The following table presents selected historical financial data of (“Holdings”), formed as a result of the bankruptcy proceedings of Alpha Natural Resources, Inc., for the six months ended June 30, 2018 and 2017, as of June 30, 2018, as of and for the year ended December 31, 2017, and for the period from July 26, 2016 through December 31, 2016.
The selected historical condensed financial data for the six months ended June 30, 2018 and 2017, and as of June 30, 2018 are derived from Holdings’ unaudited condensed financial statements for the six months ended June 30, 2018, which are included elsewhere in this joint proxy statement and prospectus. In management’s opinion, Holdings’ unaudited condensed financial statements have been prepared on the same basis as the audited financial statements and include all adjustments, consisting only of ordinary recurring adjustments, necessary for a fair presentation of the information for the periods presented. The selected historical financial data for the period from July 26, 2016 to December 31, 2016 and the year ended December 31, 2017 and as of December 31, 2016 and 2017, have been derived from Holding’s audited financial statements for the year ended December 31, 2017, which are included elsewhere in this joint proxy statement and prospectus.
On July 26, 2016, Old Alpha and its affiliates officially emerged from bankruptcy as a reorganized private company and ANR (in which Holdings held an equity investment) became the parent entity.
Historical results are not necessarily indicative of the results that may be expected for any future period. The selected historical financial data presented below should be read in conjunction with (i) Holdings’ audited financial statements for the year ended December 31, 2017 and the related notes thereto (ii) Holdings’ unaudited condensed financial statements for the six months ended June 30, 2018 and the related notes thereto (iii) the section captioned “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Holdings” and (iv) the section captioned “Selected Unaudited Pro Forma Condensed Combined Financial Information” included elsewhere in this joint proxy statement and prospectus.

21


SELECTED HISTORICAL FINANCIAL DATA OF HOLDINGS
(Amounts in thousands, except share and per share data)
 
For the Six Months Ended
June 30, 2018
 
For the Six Months Ended
June 30, 2017
 
For the Year Ended
December 31, 2017
 
For the Period from
July 26, 2016 through
December 31, 2016
Statements of Operations Data:
 
 
 
 
 
 
 
General and Administrative
$
(542
)
 
$
—

 
$
—

 
$
—

Loss on equity investment
—

 
—

 
—

 
(239
)
Loss before income taxes
(542
)
 
—

 
—

 
(239
)
 
 
 
 
 
 
 
 
Income tax benefit
—

 
—

 
—

 
—

Net loss
$
(542
)
 
$
—

 
$
—

 
$
(239
)
 
 
 
 
 
 
 
 
Weighted average shares - basic & diluted
4,223,290

 
4,223,290

 
4,223,290

 
4,223,290

 
 
 
 
 
 
 
 
Basic and diluted loss per common share:
$
(0.13
)
 
$
—

 
$
—

 
$
(0.06
)
 
 
 
 
 
 
 
 
Statement of Cash Flows Data:
 
 
 
 
 
 
 
Net cash provided by:
 
 
 
 
 
 
 
Operating activities
$
—

 
$
—

 
$
—

 
$
—

Investing activities
$
—

 
$
—

 
$
—

 
$
—

Financing activities
$
—

 
$
—

 
$
—

 
$
—

 
As of
June 30, 2018
 
As of December 31, 2017
 
As of December 31, 2016
Balance Sheet Data (at period end):
 
 
 
 
 
Total liabilities
$
542

 
$
—

 
$
—

Stockholders’ equity (deficit)
$
(542
)
 
$
—

 
$
—




22


SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF ANR
The following table presents selected historical consolidated financial data of ANR, the successor to Alpha Natural Resources, Inc. (“Old Alpha”) for the six months ended June 30, 2018 and 2017, as of June 30, 2018, as of and for the year ended December 31, 2017, and as of and for the Successor period from July 26, 2016 through December 31, 2016. The selected historical consolidated financial data of ANR has been recast for all periods presented to reflect the retrospective adoption of ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash and ASU 2017-07, Compensation-Retirement Benefits (Topic 715): Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost .
The selected historical consolidated financial data for the six months ended June 30, 2018 and 2017, and as of June 30, 2018 are derived from ANR’s unaudited condensed consolidated financial statements for the six months ended June 30, 2018, which are included elsewhere in this joint proxy statement and prospectus. In management’s opinion, ANR’s unaudited condensed consolidated financial statements have been prepared on the same basis as the audited consolidated financial statements and include all adjustments, consisting only of ordinary recurring adjustments, necessary for a fair presentation of the information for the periods presented. The selected historical consolidated financial data for the Successor period from July 26, 2016 to December 31, 2016 and the year ended December 31, 2017 and as of December 31, 2016 and 2017, have been derived from ANR’s audited consolidated financial statements for the year ended December 31, 2017, which are included elsewhere in this joint proxy statement and prospectus.
On July 26, 2016 (the “Effective Date”), Old Alpha and its affiliates officially emerged from bankruptcy as a reorganized private company and ANR became the parent entity. On the Effective Date, ANR applied fresh start accounting in accordance with ASC 852. In addition to applying fresh start accounting, ANR’s consolidated financial statements reflect all impacts of the transactions resulting from the Plan of Reorganization (“POR” or “Plan of Reorganization”). The effects of the POR include the cancellation of previously outstanding debt and the issuance of new equity by ANR and Holdings. In addition, upon emergence from bankruptcy, Old Alpha effectively split into two entities. Old Alpha emerged as a subsidiary of ANR, and pursuant to an asset purchase agreement that closed simultaneously with the effectiveness of the POR, Old Alpha sold a number of its assets to Contura. Due to the above transactions, ANR’s consolidated financial statements after July 26, 2016 are not comparable to Old Alpha’s consolidated financial statements before July 26, 2016.
Historical results are not necessarily indicative of the results that may be expected for any future period. The selected historical consolidated financial data presented below should be read in conjunction with (i) ANR’s audited consolidated financial statements for the year ended December 31, 2017 and the related notes thereto (ii) ANR’s unaudited condensed consolidated financial statements for the six months ended June 30, 2018 and the related notes thereto (iii) the section captioned “Management’s Discussion and Analysis of Financial Condition and Results of Operations of ANR” and (iv) the section captioned “Selected Unaudited Pro Forma Condensed Combined Financial Information” included elsewhere in this joint proxy statement and prospectus.

23


SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF ANR
(Amounts in thousands, except share and per share data)
 
For the Six Months Ended
June 30, 2018
 
For the Six Months Ended
June 30, 2017
 
For the Year Ended December 31, 2017
 
For the Period from
July 26, 2016 through December 31, 2016
Statements of Operations Data:
 
 
 
 
 
 
 
Revenues:
 
 
 
 
 
 
 
Coal revenues
$
603,727

 
$
617,217

 
$
1,186,882

 
$
372,724

Freight and handling revenues
—

 
17,446

 
38,987

 
19,095

Other revenues
2,992

 
4,318

 
10,469

 
5,654

Total revenues
606,719


638,981

 
1,236,338


397,473

Costs and expenses:
 

 
 
 

 
Cost of coal sales (exclusive of items shown separately below)
447,969

 
457,450

 
941,819

 
340,289

(Gain) loss on disposition of property, plant and equipment
5,823


1,350

 
604

 
(2,955
)
Freight and handling costs
17,677

 
17,446

 
38,987

 
19,095

Depreciation, depletion and amortization
18,120

 
24,790

 
14,710

 
19,828

Amortization of acquired coal supply agreements, net
143

 
5,125

 
7,684

 
6,162

Accretion of asset retirement obligations
8,147

 
8,594

 
22,733

 
9,762

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
27,839

 
16,708

 
34,465

 
14,174

Impairment – contingent credit support
—

 
—

 
—

 
21,954

Mark-to-market adjustment for acquisition related obligations
8,706

 
3,091

 
15,112

 
14,647

Other expenses
—

 
751

 
759

 
355

Total costs and expenses
534,424

 
535,305

 
1,076,873

 
443,311

Income (loss) from operations
72,295

 
103,676

 
159,465

 
(45,838
)
Other (expense) income:
 
 
 
 
 
 
 
Interest expense
(14,027
)
 
(8,033
)
 
(14,504
)
 
(9,549
)
Interest income
1,794


1,461

 
2,788

 
692

Loss on early extinguishment of debt
—

 
(16,348
)
 
(16,348
)
 
—

Miscellaneous income (expense), net
3,289

 
2,603

 
3,373

 
2,836

Total other expense, net
(8,944
)
 
(20,317
)
 
(24,691
)
 
(6,021
)
Income (loss) from continuing operations before income taxes
63,351

 
83,359

 
134,774

 
(51,859
)
Income tax (expense) benefit
—

 
(24,424
)
 
(17,584
)
 
18,214

Net income (loss) from continuing operations
63,351

 
58,935

 
117,190

 
(33,645
)
Discontinued operations:
 
 
 
 
 
 
 
Income (loss) from discontinued operations
1,270

 
(35,655
)
 
(197,364
)
 
(23,472
)
Income tax benefit from discontinued operations
—


467

 
41,288

 
—


24


 
For the Six Months Ended
June 30, 2018
 
For the Six Months Ended
June 30, 2017
 
For the Year Ended December 31, 2017
 
For the Period from
July 26, 2016 through December 31, 2016
Income (loss) from discontinued operations
1,270


(35,188
)
 
(156,076
)
 
(23,472
)
Net income (loss)
$
64,621


$
23,747

 
$
(38,886
)

$
(57,117
)
 
 
 
 
 
 
 
 
Weighted average shares - basic
20,131,152

 
20,117,485

 
20,124,374

 
20,111,040

Basic income (loss) per common share:
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
3.15

 
$
2.93

 
$
5.82

 
$
(1.67
)
Income (loss) from discontinued operations
0.06

 
(1.75
)
 
(7.75
)
 
(1.17
)
Net income (loss)
$
3.21

 
$
1.18

 
$
(1.93
)
 
$
(2.84
)
 
 
 
 
 
 
 
 
Weighted average shares - diluted
20,147,516

 
20,117,485

 
20,124,374

 
20,111,040

Diluted income (loss) per common share:
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
3.15

 
$
2.93

 
$
5.82

 
$
(1.67
)
Income (loss) from discontinued operations
$
0.06

 
$
(1.75
)
 
(7.75
)
 
(1.17
)
Net income (loss)
$
3.21

 
$
1.18

 
$
(1.93
)
 
$
(2.84
)
 
 
 
 
 
 
 
 
Statement of Cash Flows Data: (1)
 
 
 
 
 
 
 
Net cash (used in) provided by:
 
 
 
 
 
 
 
Operating activities
$
73,739

 
$
35,869

 
$
25,339

 
$
(395,879
)
Investing activities
$
(36,299
)
 
$
(21,663
)
 
$
(257,870
)
 
$
(2,498
)
Financing activities
$
(56,331
)
 
$
(130,435
)
 
$
4,521

 
$
(1,690
)
 
As of
June 30, 2018
 
As of December 31, 2017
 
As of December 31, 2016
Balance Sheet Data (at period end):
 
 
 
 
 
Cash and cash equivalents
$
72,904

 
$
45,978

 
$
77,382

Working capital (2)
$
107,224

 
$
109,129

 
$
46,224

Total current and non-current assets - discontinued operations
$
—

 
$
—

 
$
114,812

Total assets
$
812,173

 
$
876,080

 
$
1,060,273

Notes payable and long-term debt, including current portion, net
$
149,984

 
$
198,260

 
$
110,387

Total current and non-current liabilities - discontinued operations
$
—

 
$
—

 
$
181,589

Total liabilities
$
869,629

 
$
999,093

 
$
1,088,034

Stockholders’ equity (deficit)
$
(57,456
)
 
$
(123,013
)
 
$
(27,761
)
______________
(1)
Cash flow data includes discontinued operations.
(2)
Working capital calculation includes cash and cash equivalents but excludes discontinued operations.


25


SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following selected unaudited pro forma condensed combined financial information is based on the historical consolidated financial statements of Contura and Alpha, as of and for the six months ended June 30, 2018, and for the year ended December 31, 2017, which are included elsewhere in this joint proxy statement and prospectus. The historical consolidated financial statements of Contura and Alpha have been adjusted to give effect to the merger and debt refinancing as described under “The Merger” and “Unaudited Pro Forma Condensed Combined Financial Statements of Contura and Alpha” included in this joint proxy statement and prospectus. This selected unaudited pro forma condensed combined financial information is being presented solely for informational purposes and is not necessarily indicative of the combined results of operations or financial position that might have been achieved for the periods or dates indicated, nor is it necessarily indicative of the results that may be expected following the merger.
The following table presents selected unaudited pro forma condensed combined financial information of Contura and Alpha’s combined Balance Sheet and Statements of Operations, presented in accordance with requirements set forth in Article 11 of Regulation S-X, after giving effect to the merger. The selected unaudited pro forma condensed combined financial information under “Statement of Operations Information” in the following table gives effect to the merger as if it had been consummated on January 1, 2017, the beginning of the most recent annual period. The selected unaudited pro forma condensed combined financial information under “Balance Sheet Data” in the following table assumes the merger was consummated on June 30, 2018, the date of the latest balance sheet included in the filing. This selected unaudited pro forma condensed combined financial information was prepared using the acquisition method of accounting with Contura considered the acquirer of Alpha.
In addition, the selected unaudited pro forma condensed combined financial information includes adjustments that are preliminary and may be revised. There can be no assurance that such revisions will not result in material changes. The selected unaudited pro forma condensed combined financial information is presented for illustrative purposes only and may not be indicative of financial results of the combined company.
The selected unaudited pro forma condensed combined financial information presented below should be read in conjunction with the historical consolidated financial statements of Contura and Alpha and the related notes thereto, contained elsewhere in this joint proxy statement and prospectus and with the unaudited pro forma condensed combined financial information of Contura and Alpha and the related notes thereto, included in the F-pages of this document. The selected unaudited pro forma condensed combined financial information are presented for illustrative purposes only, and are not necessarily indicative of results that actually would have occurred or that may occur in the future had the merger been completed on the dates indicated. Accordingly, this information should not be relied upon for purposes of making any investment or other decisions.
The selected unaudited pro forma condensed combined financial information also gives effect to the debt refinancing as though it had occurred as of the same date as the merger. For more information, refer to the Unaudited Pro Forma Condensed Combined Financial Information of Contura and Alpha, including Note 7 Financing Related to the Merger.

26


SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION OF CONTURA AND ALPHA
(Amounts in thousands, except share and per share data)
Selected Unaudited Pro Forma Condensed Combined Financial Information
 
For the Six Months Ended June 30, 2018
 
For the Year Ended December 31, 2017
Statements of Operations Information:
 
 
 
Revenues:
 
 
 
Coal revenues
$
1,325,318

 
$
2,012,787

Freight and handling revenues
—

 
286,389

Other revenues
12,805

 
20,555

Total revenues
1,338,123

 
2,319,731

Costs and expenses:
 
 
 
Cost of coal sales (exclusive of items shown separately below)
803,993

 
1,482,477

(Gain) loss on disposition of property, plant and equipment
(10,679
)
 
—

Freight and handling costs
195,525

 
286,389

Depreciation, depletion and amortization
64,482

 
117,511

Amortization of acquired intangibles, net
11,310

 
59,007

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
50,195

 
101,924

Merger related costs
—

 
—

Secondary offering costs
—

 
4,491

Mark-to-market adjustment for acquisition-related obligations
8,706

 
18,333

Gain on settlement of acquisition-related obligations
(292
)
 
(38,886
)
Other expenses
748

 
937

Total cost and expenses
1,123,988

 
2,032,183

Income from operations
214,136

 
287,548

Other income (expense):
 
 
 
Interest expense
(28,981
)
 
(53,977
)
Interest income
2,116

 
2,998

Loss on early extinguishment of debt
—

 
(55,049
)
Equity loss in affiliates
(1,233
)
 
(3,339
)
Other miscellaneous income, net
2,763

 
4,731

Total other expense, net
(25,335
)
 
(104,636
)
Income from continuing operations before income taxes
188,801

 
182,912

Income tax benefit
1,727

 
72,993

Net income from continuing operations
$
190,528

 
$
255,905

 
 
 
 
Weighted average shares outstanding - basic
18,594,719

 
19,223,726

Weighted average shares outstanding - diluted
19,306,801

 
19,777,267

 
 
 
 
Net earnings from continuing operations per common share:
 
 
 
Basic
$
10.25

 
$
13.31

Diluted
$
9.87

 
$
12.94


27


Selected Unaudited Pro Forma Condensed Combined Financial Information
 
As of June 30, 2018
Balance Sheet Data (Period End):
 
Cash and cash equivalents
$
240,433

Total current and non-current assets - discontinued operations
$
26,231

Total assets
$
2,636,290

Notes payable and long-term debt, including current portion, net
$
537,988

Total current and non-current liabilities - discontinued operations
$
26,220

Total liabilities
$
1,722,874

Total Stockholders’ equity
$
913,416


28


COMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA
The following table shows Contura’s and Alpha’s per share data on a historical and pro forma combined basis. The pro forma information is presented for illustrative purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the Merger had been completed as of the beginning of the periods presented, nor is it necessarily indicative of the future operating results or financial position of the combined company.
Except for the historical information for the year ended December 31, 2017 for Contura and Alpha, the information in the table is unaudited.
The following comparative per share data for Contura and for Alpha is derived from the respective historical consolidated financial statements for the years ended December 31, 2017, and their respective condensed consolidated financial statements for the six months ended June 30, 2018, all of which are included elsewhere in this joint proxy and prospectus. The historical book value per share is computed by dividing the total stockholders’ equity by the weighted average number of shares of common stock outstanding at the end of the period.
The basic earnings per share from continuing operations available to common stockholders are based on the weighted average number of common shares outstanding during the respective period. The diluted earnings per share from continuing operations is calculated using the treasury stock method based on the potential dilution that could occur if instruments that may require the issuance of common shares in the future were settled and the underlying common shares were issued. This dilutive effect could result from stock options and other stock-based instruments held by Contura’s employees and directors during the period, Contura’s outstanding Series A warrants, and Alpha’s restricted stock units. The warrants become dilutive for earnings per common share from continuing operations calculations when the market price of the Company’s common stock exceeds the exercise price.
The pro forma earnings per share from continuing operations of the combined company is computed by dividing the pro forma net income by the pro forma weighted average number of shares outstanding. The weighted average number of shares outstanding is the total of Contura’s weighted average number of common shares outstanding and the common stock expected to be issued as consideration for the Merger. This information should be read together with the unaudited pro forma condensed combined financial information included under “Unaudited Pro Forma Condensed Combined Financial Information of Contura and Alpha” in the F-pages of this joint proxy statement and prospectus.
Historical Comparative Per Share Data
 
As of and for the Six Months Ended June 30, 2018 (1)
 
As of and for the Year Ended December 31, 2017 (2)
Contura Energy - Historical
 
 
 
Earnings per share from continuing operations, basic
$
13.87

 
$
17.01

Earnings per share from continuing operations, diluted
$
12.91

 
$
16.13

Book value per share
$
23.48

 
$
9.07

 
 
 
 
Alpha Natural Resources Holdings, Inc. - Historical
 
 
 
Earnings per share from continuing operations, basic
$
(0.13
)
 
$
—

Earnings per share from continuing operations, diluted
$
(0.13
)
 
$
—

Book value per share
$
(0.13
)
 
$
—

 
 
 
 
ANR - Historical
 
 
 
Earnings per share from continuing operations, basic
$
3.15

 
$
5.82

Earnings per share from continuing operations, diluted
$
3.15

 
$
5.82

Book value per share
$
(2.85
)
 
$
(6.11
)
______________
(1)
Per share data for the six months ended June 30, 2018 for Contura, Holdings, and ANR in the table is unaudited
(2)
Per share data for the year ended December 31, 2017 for Contura, Holdings, and ANR in the table is audited


29


Unaudited Pro Forma Comparative Per Share Information
 
As of and for the Six Months Ended June 30, 2018
 
As of and for the Year Ended December 31, 2017
Unaudited Pro Forma Combined (3)
 
 
 
Earnings per share from continuing operations, basic
$
10.25

 
$
13.31

Earnings per share from continuing operations, diluted
$
9.87

 
$
12.94

Book value per share
$
49.12

 
N/A

______________
(3)
Unaudited pro forma equivalent per share information is computed based on the Merger agreement which states that each outstanding share of Class C-1 common stock of ANR and each outstanding share of common stock of Holdings will be converted into the right to receive 0.4071 shares of Contura’s common stock.
.

30


COMPARATIVE PER SHARE MARKET PRICE AND DIVIDEND INFORMATION
Market Prices
Contura
Contura’s common stock is quoted over-the-counter on the pink sheets, or OTC Pink, under the symbol “CNTE,” but there has historically been low trading volume resulting in a relatively illiquid trading market. The following table sets forth the high and low bid quotations per share of Contura’s common stock for the periods indicated starting from August 18, 2016 (the first day that Contura’s common stock was quoted on OTC Pink). These quotations, as reported by OTC Markets Group, Inc., represent prices between dealers, do not include commissions, mark-ups or mark-downs and do not necessarily represent actual transactions.
 
Common Stock Bid Prices
 
High
 
Low
Fiscal Year 2018:
 
 
 
First Quarter
$
69.00

 
$
61.00

Second Quarter
$
80.00

 
$
62.25

Third Quarter (through August 17, 2018)
$
75.00

 
$
66.00

Fiscal Year 2017:
 
 
 
First Quarter
$
71.25

 
$
58.00

Second Quarter
$
78.00

 
$
65.05

Third Quarter
$
70.00

 
$
55.00

Fourth Quarter
$
61.50

 
$
54.00

Fiscal Year 2016:
 
 
 
Third Quarter (beginning August 18, 2016)
$
42.00

 
$
16.88

Fourth Quarter
$
79.00

 
$
42.00

Upon the closing of the mergers, Contura intends to list its common stock on the NYSE under the symbol “CTRA.” As of June 1, 2018, there were 9,872,632 shares of Contura common stock outstanding held by 72 record holders.

31


ANR
The Class C-1 common stock is quoted over-the-counter, under the symbol “AANR,” but there has historically been low trading volume resulting in a relatively illiquid trading market. The following table sets forth the high and low bid quotations per share of the Class C-1 common stock for the periods indicated starting from January 17, 2017 (the first day that ANR’s common stock was traded over-the-counter). These quotations, as reported by OTC Markets Group, Inc., represent prices between dealers, do not include commissions, mark-ups or mark-downs and do not necessarily represent actual transactions.
 
Common Stock Bid Prices
 
High
 
Low
Fiscal Year 2018:
 
 
 
First Quarter
$
25.00

 
$
18.65

Second Quarter
$
30.00

 
$
22.00

Third Quarter (through August 17, 2018)
$
33.35

 
$
28.10

Fiscal Year 2017:
 
 
 
First Quarter (beginning January 17, 2017)
$
20.05

 
$
10.00

Second Quarter
$
20.00

 
$
8.00

Third Quarter
$
18.40

 
$
5.00

Fourth Quarter
$
21.03

 
$
12.25

As of June 1, 2018, there were 15,907,752 shares of ANR Class C-1 common stock outstanding and 67 record holders.
Holdings
Holdings’ common stock is quoted over-the-counter, under the symbol “APNR,” but there has historically been low trading volume resulting in a relatively illiquid trading market. The following table sets forth the high and low bid quotations per share of Holdings’ common stock for the periods indicated starting from February 28, 2018 (the first day that Holdings’ common stock was traded over-the-counter). These quotations, as reported by OTC Markets Group, Inc., represent prices between dealers, do not include commissions, mark-ups or mark-downs and do not necessarily represent actual transactions.
 
Common Stock Bid Prices
 
High
 
Low
Fiscal Year 2018:
 
 
 
First Quarter (beginning February 28, 2018)
$
24.75

 
$
22.00

Second Quarter
$
29.25

 
$
22.50

Third Quarter (through August 17, 2018)
$
34.00

 
$
28.65

As of June 1, 2018, there were 4,223,290 shares of Holdings common stock outstanding and 59 record holders.

32


Closing Sale Prices
The following table sets forth the closing sale price per share of Contura’s common stock, ANR’s Class C-1 common stock and Holdings’ common stock, as quoted on April 27, 2018, the last trading day prior to the public announcement of the transaction, and on [●], 2018, the most recent trading day prior to the date of this joint proxy statement and prospectus for which this information was available. 
 
Shares of Contura Common Stock
 
Shares of ANR Class C-1 Common Stock
 
Shares of Holdings Common Stock
April 27, 2018
$
66.50

 
$
22.73

 
$
22.60

[●]
$
 
$
 
$
Dividends
Contura
On June 16, 2017, Contura declared a special cash distribution (the “Special Dividend”) in the amount of approximately $100.7 million, equal to $8.997 per share. The Special Dividend was comprised of approximately $92.8 million, payable to eligible holders of record of its common stock as of the close of business on July 5, 2017, the record date, and pursuant to the terms of Contura’s Management Incentive Plan, dividend equivalent payments of approximately $7.9 million in the aggregate (including the amounts payable with respect to each share underlying outstanding stock option awards and restricted stock unit awards and outstanding restricted common stock under the Management Incentive Plan) were paid to plan participants. The $92.8 million portion of the dividend was paid on July 12, 2017 and the dividend equivalent payments were made on July 11, 2017.
If Contura decides to pay cash dividends in the future, the declaration and payment of such dividends will be at the sole discretion of its board of directors and may be discontinued at any time. In determining the amount of any future dividends, Contura’s board of directors will take into account any legal or contractual limitations, its actual and anticipated future earnings, cash flow, debt service and capital requirements, tax considerations, the trading price of its common stock and other factors that its board of directors may deem relevant.
Contura’s ability to pay dividends on our common stock is limited by covenants in its debt facilities and may be further restricted by the terms of any future debt or preferred securities. See “Risk Factors — Risks Relating to the Ownership of our Common Stock.”
Alpha
Neither ANR nor Holdings has ever declared or paid a cash dividend, and neither ANR nor Holdings intends to pay cash dividends in the foreseeable future. ANR’s ability to pay dividends is restricted by contractual limitations, including limitations under its credit facilities. Holdings’ ability to pay dividends would be dependent on the ability of ANR to make cash available to it, by dividend or otherwise, and is similarly restricted by ANR’s contractual obligations.
If either ANR or Holdings decides to pay cash dividends in the future, the declaration and payment of such dividends will be at the sole discretion of such company’s board of directors and may be discontinued at any time. In determining the amount of any future dividends, the board of directors of ANR will take into account any legal or contractual limitations applicable to it, its actual and anticipated future earnings, cash flow, debt service and capital requirements, tax considerations and other factors that its board of directors may deem relevant. The board of directors of Holdings will take into account similar limitations and factors in determining the amount of any future dividends that may be paid by Holdings.

33


RISK FACTORS
The combined company will be faced with a business environment that cannot be predicted and that involves significant risks, many of which will be beyond our control. In addition to the other information contained in this joint proxy statement and prospectus, you should carefully consider the material risks described below before deciding how to vote your shares of stock. You should also read and consider the other information in this joint proxy statement and prospectus, including the matters addressed under the heading “Cautionary Statement Regarding Forward‑Looking Statements.” See also “Where You Can Find More Information.” References in this “Risk Factors” section to “we,” “us,” “our” and other similar terms refer to Contura Energy, Inc. and its consolidated subsidiaries before or after giving effect to the mergers, as the context requires. References in this “Risk Factors” section to the “combined company” refer to Contura Energy, Inc. and its consolidated subsidiaries after giving effect to the mergers.
Risks Relating to the Mergers and the Combined Company
You cannot be sure of the market value of Contura common stock to be issued upon completion of the transaction.
Upon completion of the transaction, each share of Holdings common stock and each share of Class C-1 common stock, in each case outstanding immediately prior to the effective times of the mergers (other than shares held directly by Holdings, ANR or Contura and shares held by any holder of Holdings common stock or Class C-1 common stock with respect to which appraisal rights have been properly demanded and not properly withdrawn), will be converted into the right to receive 0.4071 shares of Contura common stock. The exchange ratio will not be adjusted prior to completion of the transaction for changes in the market price of either Holdings common stock, Class C-1 common stock or Contura common stock or for share repurchases or issuances of common stock by Contura, Holdings or ANR. Such market price fluctuations or changes in the number of outstanding shares of Contura common stock, Holdings common stock or ANR common stock may affect the value that Alpha stockholders will receive upon completion of the mergers. Stock price changes may result from a variety of factors, including general market and economic conditions, changes in businesses, operations and prospects and regulatory considerations, many of which factors are beyond Alpha’s and Contura’s control. Neither Alpha nor Contura is permitted to terminate the merger agreement, and Alpha is not permitted to resolicit the vote of its stockholders, solely because of changes in the market price of either of their common stock.
The prices of Contura common stock, Holdings common stock and Class C-1 common stock at the completion of the mergers may vary from their respective prices on the date the merger agreement was executed, on the date of this document and on the date of the Alpha special meetings. As a result, the value represented by the exchange ratio will also vary. For example, based on the range of closing prices of Contura common stock during the period from April 27, 2018, the last trading day before public announcement of the transaction, through June 30, 2018, the exchange ratio represented a value ranging from a high of $11.91 to a low of $10.20 for each share of Holdings common stock and from a high of $12.21 to a low of $9.25 for each share of Class C-1 common stock. Because the date that the mergers are completed is expected to be later than the date of the special meetings, at the time of your special meeting, you will not know the exact market value of Contura common stock that you will receive upon completion of the mergers.
The combined company may not realize all of the anticipated benefits of the transactions contemplated by the merger agreement or such benefits may take longer to realize than expected.
The success of the mergers will depend, in part, on the combined company’s ability to realize the anticipated synergies, business opportunities and growth prospects from combining the businesses of Contura and Alpha. The combined company may never realize these anticipated synergies, business opportunities and growth prospects. Integrating operations will be complex and will require significant efforts and expenditures on the part of both Contura and Alpha. Management of the combined company might have its attention diverted while trying to integrate operations. In addition, the combined company might experience increased competition that limits its ability to expand its business, it might not be able to capitalize on expected business opportunities, including retaining current customers, assumptions underlying estimates of expected cost savings may be inaccurate, or general industry and business conditions might deteriorate. If these factors limit the combined company’s ability to integrate the operations of Contura and Alpha successfully or on a timely basis, the expectations of future results of operations, including certain cost savings and synergies expected to result from the mergers, might not be met. In addition, Contura and Alpha are currently operating and, until the completion of the transaction, will continue to operate, independently. It is possible that the integration process could result in the loss of key employees, the disruption of

34


each company’s ongoing businesses or inconsistencies in standards, controls, information technology systems, procedures and policies, any of which could adversely affect the combined company’s ability to maintain relationships with clients, employees or other third parties or the combined company’s ability to achieve the anticipated benefits of the mergers or could reduce the combined company’s earnings.
The combined company’s future financial results will depend in part on its ability to manage its core businesses, including any growth that the combined company may be able to achieve. In order to achieve those initiatives, the combined company will need to, among other things, recruit, train, retain and effectively manage employees and expand its operations. If the combined company is unable to manage its businesses effectively and profitably, its business and financial results could suffer.
To be successful, the combined company must retain and motivate key employees, including those experienced with post‑acquisition integration, and failure to do so could seriously harm the combined company.
The success of the combined company, like each of Contura and Alpha, largely depends on the skills, experience and continued efforts of management and other key personnel. As a result, to be successful, the combined company must retain and motivate executives and other key employees. If such executives or other key employees were to leave, the combined company may experience increased difficulty in the post‑merger integration process and may not be able to adequately replace such personnel, which could have a material adverse effect on the combined company’s overall business, results of operations and financial condition.
Employees of Contura and Alpha may experience uncertainty about their future roles with the combined company until integration strategies for the combined company are announced or executed. These circumstances may adversely affect the combined company’s ability to retain key personnel. The combined company also must continue to motivate employees and maintain their focus on the strategies and goals of the combined company. Doing so may be difficult due to the uncertainties and challenges associated with post‑merger integration. If the combined company is unable to retain executives and other key employees, the roles and responsibilities of such executive officers and employees will need to be filled either by existing or new officers and employees, which may require the combined company to devote time and resources to identifying, hiring and integrating replacements for the departed executives and employees that could otherwise be used to integrate the businesses of Contura and Alpha or otherwise pursue business opportunities. There can be no assurance that the combined company will be able to retain and motivate its employees in the same manner as Contura and Alpha have historically done.
We expect to incur substantial indebtedness in connection with the mergers, which may decrease the combined company’s business flexibility and adversely affect the combined company’s financial results.
The combined company expects to incur indebtedness of up to approximately $[●] to refinance existing indebtedness and to pay related fees and expenses. The financial and other covenants to which the combined company may agree to in connection with the incurrence of new indebtedness, and the combined company’s increased indebtedness may have the effect, among other things, of reducing the combined company’s flexibility to respond to changing business and economic conditions, thereby placing the combined company at a competitive disadvantage compared to competitors that have less (or more favorable) indebtedness and making the combined company more vulnerable to general adverse economic and industry conditions. Covenants pertaining to the combined company’s indebtedness may also limit the combined company’s ability to repurchase shares of Contura common stock, pay dividends or obtain additional financing to fund working capital, capital expenditures, acquisitions or general corporate requirements. The combined company may also be required to dedicate a larger portion of its cash flow from operations to payments on its indebtedness (as compared to Contura prior to the mergers), thereby reducing the availability of its cash flow for other purposes, including working capital, capital expenditures and general corporate purposes. In addition, the terms and conditions of such debt may not be favorable to the combined company and, as such, could further increase the costs of the mergers, as well as the overall burden of such debt upon the combined company and the combined company’s business flexibility. Further, if any portion of the combined company’s borrowings is at variable rates of interest, the combined company will be exposed to the risk of increased interest rates except to the extent the combined company enters into offsetting hedging transactions.
The combined company’s ability to make payments on and to refinance its debt obligations and to fund planned capital expenditures will depend on its ability to generate cash from the combined company’s operations. This ability, to some

35


extent, is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond the combined company’s control.
The combined company may not be able to refinance any of its indebtedness on commercially reasonable terms, or at all. If the combined company cannot service its indebtedness, the combined company may have to take actions such as selling assets, seeking additional equity or reducing or delaying capital expenditures, strategic acquisitions, investments and alliances, any of which could impede the implementation of the combined company’s business strategy or prevent the combined company from entering into transactions that would otherwise benefit its business. Additionally, the combined company may not be able to effect such actions, if necessary, on commercially reasonable terms, or at all.
Any of the foregoing consequences could adversely affect the combined company’s financial results.
Contura and Alpha will incur significant transaction and integration costs in connection with the mergers.
Contura and Alpha expect to incur a number of costs associated with completing the mergers and integrating the operations of the two companies. The substantial majority of these costs will be non-recurring expenses resulting from the mergers and will consist of transaction costs related to the mergers, facilities and systems consolidation costs and employment-related costs. Additional unanticipated costs may be incurred in the integration of the businesses of Contura and Alpha. Although Contura and Alpha expect that the elimination of duplicative costs, as well as the realization of other efficiencies related to the integration of the businesses, will offset incremental transaction and merger related costs over time, this net benefit may not be achieved in the near term, or at all.
The mergers will result in changes to the board of directors of the combined company that may affect the strategy of the combined company as compared to that of Contura and Alpha.
If the parties complete the mergers, the composition of the board of directors of the combined company will change from the current boards of Contura and Alpha. This new composition of the board of directors of the combined company may affect the business strategy and operating decisions of the combined company upon the completion of the mergers. See “Directors and Executive Officers of Contura After the Mergers” beginning on page 285 for more information regarding the post-closing governance of the combined company.
The combined company’s actual financial position and results of operations may differ materially from the unaudited pro forma financial data included herein.
The unaudited pro forma financial data included herein are presented for illustrative purposes only and are not necessarily indicative of what the combined company’s actual financial position or results of operations would have been had the mergers been completed on the dates indicated. The pro forma financial data reflect adjustments, which are based upon preliminary estimates, to allocate the purchase price to Alpha’s net assets. The purchase price allocation reflected in this document is preliminary, and final allocation of the purchase price will be based upon the actual purchase price and the fair value of the assets and liabilities of Alpha as of the date of the completion of the mergers. In addition, subsequent to the closing date of the mergers, there may be further refinements of the purchase price allocation as additional information becomes available. Accordingly, the final purchase accounting adjustments might differ materially from the pro forma adjustments reflected herein.
The assumptions used in preparing the unaudited pro forma financial data included herein may not prove to be accurate, and other factors may affect the combined company’s financial condition or results of operations following the mergers. Any decline or potential decline in the combined company’s financial condition or results of operations may cause significant variations in the stock price of the combined company.
See “Selected Unaudited Pro Forma Condensed Combined Financial Information” beginning on page 26 for more information.

36


The internal financial forecasts for Contura and ANR included in this joint proxy statement and prospectus reflect management estimates and Contura’s and ANR’s actual performance may differ materially from the internal financial forecasts included in this joint proxy statement and prospectus.
The internal financial forecasts for Contura and ANR included in this joint proxy statement and prospectus were prepared based on information Contura and ANR, as applicable, had at the time of preparation and reflect factors and assumptions that are subject to change and do not necessarily reflect current factors and assumptions that Contura’s or ANR’s management, as applicable, may have about their respective businesses. As a result, actual results may differ materially from these internal financial forecasts. The inclusion of these internal forecasts in this joint proxy statement and prospectus should not be regarded as an indication that Contura, ANR or any other recipient of the financial forecasts considered, or now considers, these forecasts to be material or predictive of future results.
While presented with numeric specificity, these internal financial forecasts were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of Contura’s or Alpha’s management, as applicable. Important factors that may affect actual results and cause the internal financial forecasts to not be achieved include risks and uncertainties relating to Contura’s and Alpha’s businesses, industry performance, commodity price trends, the regulatory environment, general business and economic conditions, tariffs, quotas and trade agreements and other factors described under this section and the sections entitled “Cautionary Statement Regarding Forward Looking Statements” beginning on page 66. Since the forecasts cover multiple years, this information by its nature becomes less meaningful and predictive with each successive year.
The internal financial forecasts were not prepared for the purpose of public disclosure, nor were they prepared in compliance with published guidelines of the SEC, the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of financial forecasts or GAAP. No independent registered public accounting firm has examined, compiled or otherwise performed any procedures with respect to these internal financial forecasts. The reports of the independent registered public accounting firms and independent auditors included in this joint proxy statement and prospectus relate to Contura’s and ANR’s historical financial information and do not extend to internal financial forecasts, and should not be read to do so. These internal financial forecasts were based on internal management reporting that may differ from Contura’s and ANR’s external public reporting.
None of Contura, ANR or their respective affiliates, advisors, officers, directors or other representatives can provide any assurance that actual results will not differ from these internal financial forecasts, and none of them undertakes any obligation to update, or otherwise revise or reconcile, these internal financial forecasts to reflect circumstances existing after April 2018 or to reflect the occurrence of subsequent events even in the event that any or all of the factors or assumptions underlying the forecasts are shown to be in error. For more information see the sections entitled “The Mergers—Certain Unaudited Prospective Financial Information Prepared by ANR” beginning on page 112 and “The Mergers—Certain Unaudited Prospective Financial Information Prepared by Contura” beginning on page 124.
Obtaining required approvals and satisfying closing conditions might prevent or delay completion of the mergers.
The mergers are subject to customary conditions to closing. These closing conditions include, among others, the receipt of required approvals of the stockholders of Alpha, the receipt of certain governmental approvals, and the receipt by Alpha of certain third party consents required under the merger agreement. No assurance can be given that the required stockholder, governmental and third party approvals will be obtained or that the required conditions to closing will be satisfied, and, if all required approvals are obtained and the conditions are satisfied, no assurance can be given as to the terms, conditions and timing of the approvals. Contura and Alpha will also be obligated to pay certain transaction-related fees and expenses in connection with the mergers, whether or not the mergers are completed.
The market price of Contura common stock after the transaction might be affected by factors different from, or in addition to, those affecting the market prices of Contura and Alpha common stock currently.
The businesses of Contura and Alpha differ and, accordingly, the results of operations of the combined company and the market price of Contura common stock may be affected by factors different from those currently affecting the independent results of operations of each of Contura and Alpha. For a discussion of the businesses of Contura and Alpha and of factors to consider in connection with those businesses, see “Business” beginning on page 167.

37


The combined company may not pay dividends in the foreseeable future, and you may have to rely on increases in the trading price of Contura common stock for returns on your investment.
Although Contura paid a special cash dividend to stockholders on July 11 and July 12, 2017, we may not pay cash dividends in the future. If we decide to pay cash dividends in the future, payment of any dividend by the combined company after the mergers will be subject to the determination of its board of directors. Decisions regarding whether to pay dividends and the amount of any dividends to be paid will be based on compliance with Delaware law, compliance with agreements governing the combined company’s indebtedness, earnings, cash requirements, results of operations, cash flows and financial condition and other factors that the combined company’s board of directors may consider to be important. The combined company may therefore not pay any regular dividends in the foreseeable future, in which case Alpha stockholders who become stockholders of the combined company will not be able to rely on receiving regular dividend payments and would have to rely on increases in the trading price of Contura common stock for any return on their investment
Until the mergers are completed or the merger agreement is terminated in accordance with its terms, Alpha is prohibited from entering into certain business combination transactions.
During the period that the merger agreement is in effect, the Holdings and ANR boards of directors may not withdraw or adversely modify their respective recommendation of the mergers to their respective stockholders, recommend an acquisition proposal other than the mergers, or negotiate or authorize negotiations with a third party regarding an acquisition proposal other than the mergers, except as permitted by certain limited exceptions in the merger agreement or required by their fiduciary duties in the case of a superior proposal and subject to the other requirements of the merger agreement. The foregoing prohibitions could have the effect of delaying other strategic transactions for a period of time and may, in some cases, make it impossible to pursue other strategic transactions that are available only for a limited time.
Whether or not the mergers are completed, the announcement and pendency of the mergers could cause disruptions in the businesses of Contura and Alpha, which could have an adverse effect on their respective businesses and financial results.
Whether or not the mergers are completed, the announcement and pendency of the mergers could cause disruptions in the businesses of Contura and Alpha. Specifically, (i) current and prospective employees of Contura and of Alpha might experience uncertainty about their future roles with the combined company, which might adversely affect Contura’s and Alpha’s ability to retain key managers and other employees and (ii) the attention of Contura’s and Alpha’s management might be directed toward the completion of the mergers.
In addition, Contura and Alpha have each diverted significant management resources in an effort to complete the mergers and are each subject to restrictions contained in the merger agreement on the conduct of their respective businesses. If the mergers are not completed, Contura and Alpha will have incurred significant costs, including the diversion of management resources, for which they will have received little or no benefit. Further, Alpha may be required to pay to Contura a termination fee of $19 million or an expense reimbursement of up to $9 million and Contura may be required to pay Alpha a termination fee of $19 million if the merger agreement is terminated, depending on the specific circumstances of the termination. For a detailed description of the circumstances in which such termination fee will be paid, see “The Merger Agreement — Termination Fees” beginning on page 161.
The merger agreement contains provisions that could discourage a potential competing acquirer of Alpha or could result in any competing proposal being at a lower price than it might otherwise be.
The merger agreement contains “no shop” provisions that, subject to limited exceptions, restrict Alpha’s ability to initiate, solicit or knowingly encourage competing third-party acquisition proposals to acquire all or a significant part of Alpha. Further, even if the Holdings or ANR board withdraws its recommendation of the merger proposal, the Holdings and ANR board, as applicable, will still be required to submit the matter to a vote of their stockholders at their special meetings unless the merger agreement is terminated in accordance with its terms.
In addition, Contura generally has an opportunity to offer to modify the terms of the mergers and the merger agreement in response to any acquisition proposals that may be made before the Holdings and ANR board of directors. In some circumstances, upon termination of the merger agreement, Alpha may be required to pay a termination fee to Contura. For

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additional information, see the sections entitled “The Merger Agreement—Covenants and Agreements” beginning on page 151, “The Merger Agreement — Termination of the Merger Agreement” beginning on page 160 and “The Merger Agreement— Termination Fees” beginning on page 161.
These provisions could discourage a potential competing acquirer that might have an interest in acquiring all or a significant part of Alpha from considering or proposing an acquisition, even if it were prepared to pay consideration with a higher per share cash or market value than that market value proposed to be received or realized in the mergers, or might result in a potential competing acquirer proposing to pay a lower price than it might otherwise have proposed to pay because of the added expense of the termination fee that may become payable in certain circumstances.
Alpha officers and directors may have financial interests in the mergers that are different from, or in addition to, the interests of Alpha stockholders.
Executive officers of Alpha negotiated the terms of the merger agreement with their counterparts at Contura, and the ANR and Holdings boards of directors approved the transactions contemplated by the merger agreement. In considering these facts and the other information contained in this joint proxy statement and prospectus, you should be aware that Alpha’s executive officers and ANR’s and Holdings’ respective directors may have interests in the mergers that may be different from, or in addition to, the interests of ANR and Holdings stockholders. These interests include the accelerated vesting of equity awards, arrangements that provide for severance benefits if the employment of an Alpha executive officer is terminated under specified circumstances following the completion of the mergers, rights to indemnification and director’s and officer’s liability insurance that will survive the completion of the mergers and certain tax-related payments. For a detailed discussion of the interests that Alpha’s executive officers and ANR’s and Holdings’ respective directors may have in the mergers, please see the section entitled “The Mergers — Interests of Alpha’s Directors and Executive Officers in the Mergers” beginning on page 138 of this joint proxy statement and prospectus.
The mergers may not be accretive and may cause dilution to the combined company’s earnings per share, which may negatively affect the market price of the combined company’s common stock.
Contura and Alpha currently anticipate that the mergers will be accretive to adjusted earnings per share in the first year following the completion of the mergers. This expectation is based on preliminary estimates, which may materially change. The combined company could also encounter additional transaction and integration related costs or other factors such as the failure to realize all of the benefits anticipated in the mergers. All of these factors could cause dilution to the combined company’s earnings per share or decrease or delay the expected accretive effect of the mergers and cause a decrease in the price of the combined company’s common stock.
The completion of the mergers is not conditioned on the receipt of an opinion of counsel to the effect that each merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code, and no ruling has been or will be sought from the IRS regarding the U.S. federal income tax consequences of the mergers.
Contura expects each merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. However, the completion of the mergers is not conditioned on the receipt of an opinion of counsel to that effect, and neither Alpha nor Contura intends to request a ruling from the IRS regarding the qualification of either merger as a “reorganization.” Accordingly, no assurance can be given that the IRS will not challenge the treatment of either merger as a “reorganization” or that a court would not sustain such a challenge.
Even if each merger is treated as a “reorganization” under the Code, non-U.S. Holders will generally be subject to U.S. federal income tax with respect to the mergers if Alpha is a USRPHC.
If Alpha is (or was during the relevant period) a USRPHC, then non-U.S. Holders (other than non-U.S. Holders who will own immediately following the mergers (or have owned during the five-year period preceding the mergers) actually or constructively more than 5% of the outstanding shares of Contura common stock and comply with certain U.S. federal income tax reporting requirements) will be subject to U.S. federal income tax on any gain recognized by them in the applicable merger assuming that shares of Contura common stock are regularly traded on the NYSE following the mergers.

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Each non-U.S. Holder should carefully read the discussion under “Material United States Federal Income Tax Consequences of the Mergers” and should consult its own tax advisor for a full understanding of the tax consequences of the mergers and the withholding consequences applicable to such non-U.S. Holder.
Certain provisions in the Code may prevent us from filing a consolidated U.S. federal income tax return as a combined company, which could affect our financial condition and increase our U.S. federal income tax liability.
Certain rules may prohibit us from filing a consolidated U.S. federal income tax return with Alpha or its subsidiaries. If we are required to file separate federal income tax returns, our overall federal income tax liability may be higher than if we were able to file a consolidated income tax return because of our inability to offset income with deductions and credits across the separate federal income tax returns.
Risks Relating to Our Industry and the Global Economy
Declines in coal prices would reduce our revenues and adversely affect our operating results, cash flows, financial condition, stock price and the value of our coal reserves.
The combined company’s results of operations will be substantially dependent upon the prices we receive for our coal. Those prices depend upon factors beyond our control (some of which are described in more detail in other risk factors below), including:
•
the demand for domestic and foreign coal and coke, which depends significantly on the demand for electricity and steel;
•
the price and availability of natural gas, other alternative fuels and alternative steel production technologies;
•
domestic and foreign economic conditions, including economic downturns and the strength of the global and U.S. economies;
•
the consumption pattern of industrial customers, electricity generators and residential users;
•
the legal, regulatory and tax environment for our industry and those of our customers;
•
adverse weather, climactic or other natural conditions, including natural disasters;
•
the quantity, quality and pricing of coal available in the resale market;
•
the effects of worldwide energy conservation or emissions measures;
•
competition from other suppliers of coal and other energy sources; and
•
the proximity to and availability, reliability and cost of transportation and port facilities.
Declines in coal prices in the U.S. and other countries may materially adversely affect our operating results and cash flows, as well as the value of our coal reserves and may cause the number of risks that we face to increase in likelihood, magnitude and duration.
Lower demand for metallurgical coal (or “met coal”) by U.S. and foreign steel producers, including negative effects resulting from the imposition of tariffs, could reduce the price of our met coal, which would reduce our revenues.
Contura produces met coal that is directly sold to both U.S. and foreign steel industry customers, and Alpha produces met coal that is directly sold to U.S. steel industry customers and indirectly sold to foreign steel industry customers through U.S.-based companies. Met coal accounted for approximately 70% and 76% of the combined company’s coal revenues (excluding freight and handling revenues) for the year ended December 31, 2017 and the six months ended June 30, 2018, respectively, on a pro forma basis. Any deterioration in conditions in the U.S. or foreign steel industries, including the demand for steel and the continued financial viability of the industry, could reduce the demand for our met coal and could impact the collectability of our accounts receivable from U.S. or foreign steel industry customers.

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The demand for foreign-produced steel both in foreign markets and in the U.S. market also depends on factors such as tariff rates on steel. On March 8, 2018, President Trump signed proclamations imposing a 25 percent tariff on imports of steel mill products and a 10 percent tariff on imports of wrought and unwrought aluminum. It is too early to know the impact these tariffs will have on demand for our met coal. Contura’s export customers include foreign steel producers who may be affected by the tariffs to the extent their production is imported into the U.S. Conversely, demand for met coal from our domestic customers may increase. Retaliatory threats by foreign nations to these tariffs may limit international trade and adversely impact global economic conditions.
In addition, the steel industry’s demand for met coal is affected by a number of factors, including the variable nature of that industry’s business, technological developments in the steel-making process and the availability of substitutes for steel, such as aluminum, composites and plastics. The U.S. steel industry increasingly relies on processes to make steel that do not use coke, such as electric arc furnaces or pulverized coal processes. If this trend continues, the amount of met coal that we sell and the prices that we receive for it could decrease, thereby reducing our revenues and adversely impacting our earnings and the value of our coal reserves. Lower demand for met coal in international markets could reduce the amount of met coal that we sell and the prices that we receive for it, thereby reducing our revenues and adversely impacting our earnings and the value of our coal reserves. Foreign government policies related to coal production and consumption could negatively impact pricing and demand for our products.
Lower demand for steam coal by North American electric power generators could reduce the price of our steam coal, which would reduce our revenues.
Steam coal accounted for approximately 30% and 24% of the combined company’s coal revenues (excluding freight and handling revenues) for the year ended December 31, 2017 and the six months ended June 30, 2018, respectively, on a pro forma basis. The majority of our sales of steam coal were to U.S. electric power generators. The North American demand for steam coal is affected primarily by:
•
the overall demand for electricity, which is in turn influenced by the global economy and the weather, among other factors (for example, mild North American winters typically result in lower demand);
•
the availability, quality and price of competing fuels, such as natural gas, nuclear fuel, oil and alternative energy sources such as wind, solar, and hydroelectric power, which may change over time as a result of, among other things, technological developments and state or federal regulatory or statutory fuel subsidies or energy use mandates;
•
increasingly stringent environmental and other governmental regulations, including air emission standards for coal-fired power plants; and
•
the coal inventories of utilities.
Many North American electric power generators have shifted from coal to natural gas-fired power plants. Despite ongoing advancements in the availability and deployment of advanced coal and emissions reduction technologies, we expect that new power plants in the near-term will be fired by natural gas because natural gas-fired plants are less expensive to construct than coal-fired plants and natural gas is a cleaner-burning fuel, with plentiful supplies and low cost at the current time. Increasingly stringent regulations have also reduced the number of new power plants being built, particularly coal-fired power plants. A reduction in the amount of coal consumed by North American electric power generators would reduce the amount of steam coal that we sell and the price that we receive for it, thereby reducing our revenues and adversely impacting our earnings and the value of our coal reserves. In addition, uncertainty caused by federal and state regulations could cause steam coal customers to be uncertain of their coal requirements in future years, which could adversely affect our ability to sell coal to such customers under multi-year sales contracts.
Competition within the coal industry may adversely affect our ability to sell coal, and excess production capacity in the industry could put downward pressure on coal prices.
We compete with numerous other coal producers in various regions of the U.S. for domestic and international sales. We also compete in international markets against coal producers in other countries. International demand for U.S. coal exports also affects coal demand in the U.S. This competition affects domestic and foreign coal prices and our ability to retain or

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attract coal customers. Increased competition from the Illinois basin, the threat of increased production from competing mines, and natural gas price declines with large basis differentials have all historically contributed to soft market conditions.
In the past, high demand for coal and attractive pricing brought new investors to the coal industry, leading to the development of new mines and added production capacity. Subsequent overcapacity in the industry contributed, and may in the future contribute, to lower coal prices.
Potential changes to international trade agreements, trade concessions, foreign currency fluctuations or other political and economic arrangements may benefit coal producers operating in countries other than the United States. Additionally, North American steel producers face competition from foreign steel producers, which could adversely impact the financial condition and business of our customers. We cannot assure you that we will be able to compete on the basis of price or other factors with companies that in the future may benefit from favorable foreign trade policies or other arrangements. Coal is sold internationally in U.S. dollars and, as a result, general economic conditions in foreign markets and changes in foreign currency exchange rates may provide our foreign competitors with a competitive advantage. If our competitors’ currencies decline against the U.S. dollar or against our foreign customers’ local currencies, those competitors may be able to offer lower prices for coal to customers. Furthermore, if the currencies of our overseas customers were to significantly decline in value in comparison to the U.S. dollar, those customers may seek decreased prices for the coal we sell to them. Consequently, currency fluctuations could adversely affect the competitiveness of our coal in international markets, which could have a material adverse effect on our business, financial condition, results of operations and cash flows. See “Business—Competition.” Similarly, currency fluctuations could adversely affect demand for U.S. steel.
Competition with natural gas and renewable energy sources, and factors affecting these industries could have an adverse impact on coal demand.
Our coal competes with natural gas and renewable energy sources, and the price of these sources can therefore affect coal sales. The natural gas market has been volatile historically and prices in this market are subject to wide fluctuations in response to relatively minor changes in supply and demand. Changes in supply and demand could be prompted by any number of factors, such as worldwide and regional economic and political conditions; the level of global exploration, production and inventories; natural gas prices; and transportation availability. If natural gas prices decline significantly, it could lead to reduced coal sales and have a material adverse effect on our financial condition, results of operations and cash flows.
In addition, state and federal mandates for increased use of electricity from renewable energy sources also have an impact on the market for our coal. Several states have enacted legislative mandates requiring electricity suppliers to use renewable energy sources to generate a certain percentage of power. There have been numerous proposals to establish a similar uniform, national standard although none of these proposals have been enacted to date. Possible advances in technologies and incentives, such as tax credits, to enhance the economics of renewable energy sources could make these sources more competitive with coal. Any reduction in the amount of coal consumed by electric power generators could reduce the price of coal that we mine and sell, thereby reducing our revenues and materially and adversely affecting our business and results of operations.
Lower demand for U.S. coal exports would reduce our foreign sales, could negatively impact our revenues and could result in downward pressure on domestic coal prices.
Coal exports revenues accounted for approximately 55% and 66% of the combined company’s total coal revenues (excluding freight and handling revenues) for the year ended December 31, 2017 and the six months ended June 30, 2018, respectively. In addition to the factors described above, demand for and viability of U.S. coal exports is dependent upon a number of factors outside of our control, including ocean freight rates and port and shipping capacity. Additionally, China is the world’s largest importer of coal, and decreases in its demand could cause decreases in the prices we receive for our export shipments. Furthermore, if the amount of coal exported from the U.S. were to decline, increased domestic supply could cause competition among coal producers in the U.S. to intensify, potentially resulting in additional downward pressure on domestic coal prices.

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Future governmental policy changes in China may be detrimental to the global coal market and impact our business, financial condition or results of operations.
The Chinese government has from time to time implemented regulations and promulgated new laws or restrictions on their domestic coal industry, sometimes with little advance notice, which may impact worldwide coal demand, supply and prices. The recent rise from historic lows in prices was driven in part by government policies in China that curbed domestic supply. In early 2016, the Chinese government announced a 276-work day limitation on the annual operating days for coal mines, as well as a plan to close over 1,000 coal mines within the year. In early 2017, the Chinese government set its capacity reduction target to 165 million tons for the year. It is possible that policy changes from Beijing may be detrimental to the global coal market and, thus, impact our business, financial condition or results of operations.
In addition, similar actions by government entities in countries that produce and/or consume large quantities of coal and other energy related commodities, such as India, may have a material impact on the prices at which we sell our product.
The loss of, or significant reduction in, purchases by our largest customers could adversely affect our revenues and profitability.
Contura’s largest customer during the year ended December 31, 2017 accounted for approximately 16% of its total coal revenues, and coal sales to its 10 largest customers (other than Alpha) accounted for approximately 64% of its total coal revenues (excluding coal revenues from sales to Alpha). Alpha’s largest customer (other than Contura) during the year ended December 31, 2017 accounted for approximately 30% of its total coal revenues (excluding coal revenues from sales to Contura), and coal sales to its 10 largest customers (other than Contura) accounted for approximately 87% of its total coal revenues (excluding coal revenues from sales to Contura). These customers may not continue to purchase coal from us as they have previously, or at all. If these customers were to reduce their purchases of coal significantly or if we were unable to sell coal to them on terms as favorable to us, our revenues and profitability could suffer.
We may not be able to extend our existing long-term supply contracts or enter into new ones, and our existing supply contracts may contain certain provisions that may reduce protection from short-term coal price volatility, which could adversely affect the profitability of our operations.
A substantial portion of our steam coal is sold under long-term contracts. When our current contracts with customers expire or are otherwise renegotiated, our customers may decide to purchase fewer tons of coal than in the past or on terms, including pricing terms, that are not as favorable to us as the terms under our current agreements.
Further, in large part as a result of increasing and frequently changing regulation, and natural gas pricing, electric power generators are increasingly less willing to enter into long-term coal supply contracts, instead purchasing higher percentages of coal under short-term supply contracts. This industry shift away from long-term supply contracts could adversely affect us and the level of our revenues. For example, our having fewer customers with a contractual obligation to purchase coal from us increases the risk that we will not have a consistent market for our production and may require us to sell more coal in the spot market, where prices may be lower than we would expect a customer to pay for a contractually committed supply. Spot market prices also tend to be more volatile than contractual prices, which could result in decreased revenues. Our met coal supply contracts are typically priced on an annual, quarterly or spot basis, and therefore our met coal sales are particularly sensitive to re-pricing risk.
Generally, our long-term steam coal agreements contain committed volumes and fixed prices for a certain number of periods during which steam coal will be delivered. However, some of our long-term steam coal agreements do not provide for a fixed price through the life of the agreement. Those agreements contain price negotiation and similar provisions for upcoming unpriced contract periods, with negotiations generally considering either then current market prices and/or relevant market indices. Failure of the parties to agree on a price can lead to termination of the contract or litigation, the outcome of which would be uncertain. Further, during periods of economic weakness, some of our customers experience lower demand for their products and services and may be unwilling to take all of their contracted tonnage or may request a lower price. Customers may make similar requests when market prices drop significantly. Any adjustment or negotiation leading to a significantly lower contract price could result in decreased revenues. Accordingly, supply contracts with terms of one year or more may provide only limited protection during adverse or volatile market conditions.

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Our ability to collect payments from our customers could be impaired if their creditworthiness and financial health deteriorate.
Our ability to receive payment for coal sold and delivered depends on the continued creditworthiness and financial health of our customers. Competition with other coal suppliers could force us to extend credit to customers and on terms that could increase the risk we bear on payment default. In recent years, downturns in the economy and disruptions in the global financial markets have, from time to time, affected the creditworthiness of our customers and limited their liquidity and credit availability. In addition, our customer base may change with deregulation as utilities sell or transfer their power plants to their non-regulated affiliates or third parties that may be less creditworthy, thereby increasing the risk we bear for customer payment default. These new power plant owners or operators may have credit ratings that are below investment grade, or may become below investment grade after we enter into contracts with them.
Customers in other countries may be subject to other pressures and uncertainties that may affect their ability to pay, including trade barriers, exchange controls and local economic and political conditions. On a pro forma basis, for the year ended December 31, 2017 and the six months ended June 30, 2018, the combined company derived 55% and 66%, respectively, of its total coal revenues, excluding freight and handling revenues, from coal sales made to customers outside the U.S.
Economic downturns and disruptions in the global financial markets have had and could in the future have a material adverse effect on the demand for and price of coal, which could have a material negative effect on our sales, margins and profitability and ability to obtain financing, as well as our costs.
Economic downturns and disruptions in the global financial markets have from time to time resulted in, among other things, extreme volatility in securities prices, severely diminished liquidity and credit availability, rating downgrades of certain investments and declining valuations of others, including real estate. These sorts of disruptions, and in particular the tightening of credit in financial markets, could adversely affect our customers’ ability to obtain financing for operations and result in a decrease in demand, lower coal prices, the cancellation of some orders for our coal and the restructuring of agreements with some of our customers. Changes in the value of the U.S. dollar relative to other currencies, particularly where imported products are required for the mining process, could result in materially increased operating expenses. Any prolonged global, national or regional economic recession or other similar events could have a material adverse effect on the demand for and price of coal, on our sales, margins and profitability, and on our own ability to obtain financing. We are unable to predict the timing, duration and severity of any potential future disruptions in financial markets and potential future adverse economic conditions in the U.S. and other countries and the impact these events may have on our operations and the industry in general. Furthermore, because we seek to enter into long-term arrangements for the sale of a substantial portion of our coal, it is likely that the average sales price we receive for our coal will lag behind any general economic recovery.
Risks Relating to Regulatory and Legal Developments
The extensive regulation of the mining industry imposes significant costs on us, and future regulations or violations could increase those costs or limit our ability to produce coal.
Our operations are subject to a wide variety of federal, state and local environmental, health and safety, transportation, labor and other laws and regulations relating to matters such as:
•
blasting;
•
controls on emissions and discharges;
•
the effects of operations on surface water and groundwater quality and availability;
•
the storage, treatment and disposal of wastes;
•
the remediation of contaminated soil, surface water and groundwater;
•
surface subsidence from underground mining;

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•
the classification of plant and animal species near our mines as endangered or threatened species;
•
the reclamation of mined sites; and
•
employee health and safety, and benefits for current and retired coal miners (described in more detail below).
These laws and regulations are becoming increasingly stringent. For example:
•
federal and state agencies and citizen groups have increasingly focused on the amount of selenium and other constituents in mine-related water discharges;
•
Mine Safety and Health Administration (“MSHA”) and the states of Pennsylvania, Virginia and West Virginia have implemented and proposed changes to mine safety and health requirements to impose more stringent health and safety controls, enhance mine inspection and enforcement practices, increase sanctions, and expand monitoring and reporting; and
•
more stringent regulation of greenhouse gas (“GHG”) emissions is being considered that could increase our costs, require additional controls, or compel us to limit our current operations.
In addition, these laws and regulations require us to obtain numerous governmental permits and comply with the requirements of those permits (described in more detail below).
We incur substantial costs to comply with the laws, regulations and permits that apply to our mining and other operations, and to address the outcome of inspections. The required compliance and actions to address inspection outcomes are often time-consuming and may delay commencement or continuation of exploration or production. In addition, due in part to the extensive and comprehensive regulatory requirements, violations of laws, regulations and permits occur at our operations from time to time and may result in significant costs to us to correct the violations, as well as substantial civil or criminal penalties and limitations or shutdowns of our operations. We and Alpha are also required to comply with a November 2014 Consent Decree with several government agencies with regard to our Cumberland and Emerald mines and Alpha’s mining operations. See “Environmental and Other Regulatory Matters—Clean Water Act—Wastewater Discharge.”
MSHA and state regulators may also order the temporary or permanent closing of a mine in the event of certain violations of safety rules, accidents or imminent dangers. In addition, regulators may order changes to mine plans or operations due to their interpretation or application of existing or new laws or regulations. Any required changes to mine plans or operations may result in temporary idling of production or addition of costs.
These factors have had and will continue to have a significant effect on our costs of production and competitive position, and as a result on our results of operations, cash flows and financial condition. New laws and regulations, as well as future interpretations or different enforcement of existing laws and regulations, may have a similar or more significant impact on us, including delays, interruptions or a termination of operations.
Climate change or carbon dioxide emissions reduction initiatives could significantly reduce the demand for coal and reduce the value of our coal assets.
Global climate issues continue to attract considerable public and scientific attention. Numerous reports, such as the Fourth and Fifth Assessment Report of the Intergovernmental Panel on Climate Change, have also engendered concern about the impacts of human activity, and in particular the emissions of GHG, such as carbon dioxide and methane, on global climate issues. Combustion of fossil fuels like coal results in the creation of carbon dioxide, which is emitted into the atmosphere by coal end users such as coal-fired electric power generators, coke plants and steelmaking plants, and, to a lesser extent, by the combustion of fossil fuels by the mining equipment we use. In addition, coal mining can release methane from the mine, directly into the atmosphere. Concerns associated with global climate change, and GHG emissions reduction initiatives designed to address them, have resulted, and are expected to continue to result, in decreased coal-fired power plant capacity and utilization, phasing out and closing many existing coal-fired power plants, reducing or eliminating construction of new coal-fired power plants in the United States and certain other countries, increased costs to mine coal, and decreased demand and prices for coal.

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Emissions from coal consumption and production are subject to pending and proposed regulations as part of regulatory initiatives to address global climate change and global warming. Various international, federal, regional, foreign and state proposals are currently in place or being considered to limit emissions of GHGs, including possible future U.S. treaty commitments, new federal or state legislation, and regulation under existing environmental laws by the EPA and other regulatory agencies and litigation by private parties. These include:
•
the 2015 Paris climate summit agreement, which resulted in voluntary commitments by 197 countries (although on June 1, 2017, the Trump administration announced that the U.S. will withdraw from the agreement) to reduce their GHG emissions and could result in additional firm commitments by various nations with respect to future GHG emissions;
•
federal regulations such as the Clean Power Plan (“CPP”), which is currently stayed by the U.S. Supreme Court and would have required reductions in emissions from existing fossil fuel-fired power plants, and new source performance standards for GHG emissions for new, modified or reconstructed fossil fuel-fired power plants (“Power Plant NSPS”), which requires the use of partial carbon capture and sequestration for fossil fuel-fired steam generating units, or any regulation that replaces them;
•
state and regional climate change initiatives implementing renewable portfolio standards or cap-and-trade schemes;
•
challenges to or denials of permits for new coal-fired power plants or retrofits to existing plants by state regulators and environmental organizations due to concerns related to GHG emissions from the new or existing plants; and
•
private litigation against coal companies or power plant operators based on GHG-related concerns.
On March 28, 2017, President Trump signed the Executive Order for Promoting Energy Independence and Economic Growth (“March 2017 Executive Order”) that directed the United States Environmental Protection Agency (the “EPA”) to review and, if appropriate, suspend, revise or rescind, both the CPP and the Power Plant NSPS as necessary to ensure consistency with the goals of energy independence, economic growth and cost-effective environmental regulation. On April 4, 2017, the EPA announced in the Federal Register that it is initiating its review of the CPP and the Power Plant NSPS. The EPA will also review the compliance dates set by the CPP, since some of these dates “have passed or will likely pass while the CPP continues to be stayed.” On April 28, 2017, the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) paused legal challenges to both the CPP and the Power Plant NSPS for 60 days to allow parties in each of those cases to brief the court on whether the case should be remanded to the agency or kept on hold and in a series of orders since, has continued to hold the cases in abeyance while the EPA rulemaking regarding the CPP and the Power Plant NSPS continues. In October 2017, the EPA issued a proposed rule to rescind the CPP, and in December 2017, the EPA published an Advanced Notice of Proposed Rulemaking announcing an intent to commence a new rulemaking to replace the CPP with an alternative. The period for comment closed in April 2018. On July 9, 2018, the EPA sent a draft notice of proposed rulemaking to the White House Office of Management and Budget for review which will need to undergo a public comment period before being finalized. The outcome of these rulemakings is uncertain and likely to be subject to extensive notice and comment and litigation. More stringent standards for carbon dioxide pollution as a result of these rulemakings could further reduce demand for coal, and our business would be adversely impacted.
In addition, certain banks and other financing sources have taken actions to limit available financing for the development of new coal-fueled power plants, which also may adversely impact the future global demand for coal. Further, there have been recent efforts by members of the general financial and investment communities, such as investment advisors, sovereign wealth funds, public pension funds, universities and other groups, to divest themselves and to promote the divestment of securities issued by companies involved in the fossil fuel extraction market, such as coal producers. Those entities also have been pressuring lenders to limit financing available to such companies. These efforts may adversely affect the market for our securities and our ability to access capital and financial markets in the future.
Furthermore, several well-funded non-governmental organizations have explicitly undertaken campaigns to minimize or eliminate the use of coal as a source of electricity generation. These efforts, as well as concerted conservation and efficiency efforts that result in reduced electricity consumption, and consumer and corporate preferences for non-coal fuel sources, could cause coal prices and sales of our coal to materially decline and could cause our costs to increase.

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Any future laws, regulations or other policies or initiatives of the nature described above may adversely impact our business in material ways. The degree to which any particular law, regulation or policy impacts us will depend on several factors, including the substantive terms involved, the relevant time periods for enactment and any related transition periods. Considerable uncertainty is associated with these regulatory initiatives and legal developments, as the content of proposed legislation and regulation is not yet fully determined, many of the new regulatory initiatives remain subject to governmental and judicial review, and, with respect to federal initiatives, the current U.S. Presidential administration and/or Congress may further impact their development. We routinely attempt to evaluate the potential impact on us of any proposed laws, regulations or policies, which requires that we make several material assumptions. From time to time, we determine that the impact of one or more such laws, regulations or policies, if adopted and ultimately implemented as proposed, may result in materially adverse impacts on our operations, financial condition or cash flow; however, we often are not able to reasonably quantify such impacts.
In general, any laws, regulations or other policies aimed at reducing GHG emissions have imposed and are likely to continue to impose significant costs on many coal-fired power plants, steel-making plants and industrial boilers, which may make them unprofitable. Accordingly, some existing power generators have switched to other fuels that generate fewer emissions and others are likely to switch, some power plants have closed and others are likely to close, and fewer new coal-fired plants are being constructed, all of which reduce demand for coal and the amount of coal that we sell and the prices that we receive for it, thereby reducing our revenues and adversely impacting our earnings and the value of our coal reserves.
Other extensive environmental laws, including existing and potential future legislation, treaties and regulatory requirements relating to air emissions, waste management and water discharges, affect our customers and could further reduce the demand for coal as a fuel source and cause prices and sales of our coal to materially decline.
Our customers’ operations are subject to extensive laws and regulations relating to environmental matters, including air emissions, wastewater discharges and the storage, treatment and disposal of wastes; and operational permits. In particular, the Clean Air Act and similar state and local laws extensively regulate the amount of sulfur dioxide, particulate matter, nitrogen oxides, mercury and other compounds emitted into the air from fossil-fuel fired power plants, which are the largest end-users of our steam coal. A series of more stringent requirements will or may become effective in coming years, including:
•
implementation of the current and more stringent proposed ambient air quality standards for sulfur dioxide, nitrogen oxides, particulate matter and ozone, including the EPA’s issuance in October 2015 of a more stringent ambient air quality standard for ozone and the EPA’s determinations of attainment designations with respect to these rules;
•
implementation of the EPA’s Cross-State Air Pollution Rule (“CSAPR”) to significantly reduce nitrogen oxide and sulfur dioxide emissions from power plants in 28 states, and the CSAPR Update Rule, issued in September 2016, requiring further reductions in nitrogen oxides in 2017 in 22 states subject to CSAPR during the summertime ozone season;
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continued implementation of the EPA’s Mercury and Air Toxics Standards (“MATS”), which impose stringent limits on emissions of mercury and other toxic air pollutants from electric power generators, issued in December 2011 and in effect pending completion of judicial review proceedings;
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implementation of the EPA’s August 2014 final rule on cooling water intake structures for power plants;
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more stringent EPA requirements governing management and disposal of coal ash pursuant to a rule finalized in December 2014; and
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implementation of the EPA’s November 2015 final rule setting effluent discharge limits on the levels of metals that can be discharged from power plants (currently delayed pursuant to recent EPA rulemaking).
These environmental laws and regulations impose significant costs on our customers, which are increasing as these requirements become more stringent. These costs make coal more expensive to use and make it a less attractive fuel source of energy for our customers. Accordingly, some existing power generators have switched to other fuels that generate fewer emissions and others are likely to switch, some power plants have closed and others are likely to close, and fewer coal-fired plants are being constructed, all of which reduce demand for coal, the amount of coal that we sell and the prices that we receive for it, thereby reducing our revenues and adversely impacting our earnings and the value of our coal reserves.

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In addition, regulations regarding sulfur dioxide emissions under the Clean Air Act, including caps on emissions and the price of emissions allowances, have a potentially significant impact on the demand for our coal based on its sulfur content. We sell both higher sulfur and low sulfur coal. More widespread installation by power generators of technology that reduces sulfur emissions may make high sulfur coal more competitive with our low sulfur coal. Decreases in the price of emissions allowances could have a similar effect. Significant increases in the price of emissions allowances could reduce the competitiveness of higher sulfur coal compared to low sulfur coal and possibly natural gas at power plants not equipped to reduce sulfur dioxide emissions. Any of these consequences could result in a decrease in revenues from some of our operations, which could adversely affect our business and results of operations.
Our long-term growth, and particularly that of our steam coal platform, may be materially adversely impacted if economic, commercially available carbon mitigation technologies are not developed and adopted in a timely manner.
Federal or state laws or regulations may be adopted that would impose new or additional limits on the emissions of GHGs, including, but not limited to, CO 2 from electric generating units using fossil fuels such as coal or natural gas. In order to comply with such regulations, electric generating units using fossil fuels may be required to implement carbon capture or other emissions control technologies. For example, pursuant to the Power Plant NSPS finalized by the EPA in August 2015, the EPA has designated partial carbon capture and sequestration as the best system of emission reduction for newly constructed fossil fuel-fired steam generating units at power plants to employ to meet the standard. However, there is a risk that such technology, which may include storage, conversion, or other commercial use for captured carbon, may not be commercially practical in limiting emissions as otherwise required by the rule or similar rules that may be proposed in the future. The Power Plant NSPS is undergoing judicial and administrative review and may be revised or rescinded in whole or in part pursuant to the March 2017 Executive Order. If such legislative or regulatory programs are adopted or remain in place, and economic, commercially available carbon capture or other carbon mitigation technologies for power plants are not developed or adopted in a timely manner, it would negatively affect our customers and would further reduce the demand for coal as a fuel source, causing coal prices and sales of our coal to decline, perhaps materially.
Decreases in consumer demand for electricity and changes in general energy consumption patterns attributable to energy conservation trends could adversely affect our business, financial condition and results of operations.
Due to efforts to promote energy conservation in recent years, there is a risk that both the demand for electricity and the general energy consumption patterns of consumers worldwide will decrease. The ability of energy conservation technologies, public initiatives and government incentives to reduce electricity consumption or to support other forms of renewable energy could also lead to a reduction in the price of coal. If prices for coal are not competitive, our business, financial condition and results of operations may be materially harmed.
Our operations may impact the environment or cause exposure to hazardous substances, and our properties may have environmental contamination, which could result in material liabilities to us.
Our operations use certain hazardous materials, and from time to time we generate limited quantities of hazardous wastes. We may be subject to claims under federal or state law for toxic torts, natural resource damages and other damages as well as for the investigation and clean-up of soil, surface water, sediments, groundwater and other natural resources. Such claims may arise out of current or former conditions at sites that we own or operate, or formerly owned or operated, and at contaminated sites owned or operated by third parties to which we sent wastes for treatment, storage or disposal. Our liability for such claims may be joint and several, so that we may be held responsible for more than our share of the contamination or other damages, or even for the entire share.
We operate and maintain coal slurry impoundments at a number of our mining complexes. These impoundments are subject to extensive regulation. Some slurry impoundments maintained by other coal mining operations have failed, causing extensive damage to the environment and natural resources, as well as liability for related personal injuries and property damages. Some of our impoundments overlie mined out areas, which can pose a heightened risk of failure and of resulting damages. If one of our impoundments were to fail, we could be subject to substantial claims for the resulting environmental contamination and associated liability, as well as for fines and penalties, and potential third-party claims for personal injury, property damage or other losses. In addition, we may become subject to such claims related to surface expressions of methane gas, which can result from underground coal mining activities.

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These and other environmental impacts that our operations may have, as well as exposures to hazardous substances or wastes associated with our operations, could result in costs and liabilities that could render continued operations at certain mines economically unfeasible or impractical or otherwise materially and adversely affect our financial condition and results of operations.
We may be unable to obtain and renew permits, mine plan modifications and approvals, leases or other rights necessary for our operations, which would reduce our production, cash flows and profitability.
Mining companies must obtain numerous regulatory permits that impose strict conditions on various environmental and safety matters in connection with coal mining. The permitting rules are complex and change over time, potentially in ways that may make our ability to comply with the applicable requirements more difficult or impractical or even preclude the continuation of ongoing operations or the development of future mining operations. The public, including special interest groups and individuals, have certain rights under various statutes to comment upon, submit objections to and otherwise engage in the permitting process, including bringing citizens’ lawsuits or administrative actions to challenge permits or mining activities. In states where we operate, applicable laws and regulations also provide that a mining permit or modification can, under certain circumstances, be delayed, refused or revoked if we or any entity that owns or controls or is under common ownership or control with us have unabated permit violations or have been the subject of permit or reclamation bond revocation or suspension. These regulations define certain relationships, such as owning over 50% of stock in an entity or having the authority to determine the manner in which the entity conducts mining operations, as constituting ownership and control. Certain other relationships are presumed to constitute ownership or control, including being an officer or director of an entity or owning between 10% and 50% of the mining operator. This presumption, in some cases, can be rebutted where the person or entity can demonstrate that it in fact does not or did not have authority directly or indirectly to determine the manner in which the relevant coal mining operation is conducted. Thus, past or ongoing violations of federal and state mining laws by us or by coal mining operations owned or controlled by our significant stockholders, directors or officers could provide a basis to revoke existing permits and to deny the issuance of additional permits or modification or amendment of existing permits. This is known as being “permit-blocked.” In recent years, the permitting required for coal mining has been the subject of increasingly stringent regulatory and administrative requirements and extensive litigation by environmental groups.
As a result, the permitting process is costly and time-consuming, required permits may not be issued or renewed in a timely fashion (or at all), and permits that are issued may be conditioned in a manner that may restrict our ability to conduct our mining activities efficiently. In some circumstances, regulators could seek to revoke permits previously issued. We are required under certain permits to provide data on the impact on the environment of proposed exploration for or production of coal to governmental authorities.
In particular, certain of our activities require a dredge and fill permit from the Army Corps of Engineers (the “COE”) under Section 404 of the Clean Water Act (“CWA”). In recent years, the Section 404 permitting process has been subject to increasingly stringent regulatory and administrative requirements and a series of court challenges, which have resulted in increased costs and delays in the permitting process.
In addition, in 2015, the EPA and the COE issued a final rule, now known as the Clean Water Rule (“CWR”) under the CWA that would further expand the circumstances when a Section 404 permit is needed. The CWR is the subject of extensive ongoing litigation and administrative proceedings and its current and future impact on our operations are the subject of significant uncertainty. The rule was subsequently stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit during the pendency of several lawsuits challenging the CWR in the Sixth Circuit and several federal district courts. On January 22, 2018, the Supreme Court reversed the Sixth Circuit's decision, ruling that jurisdiction over challenges to the CWR rests with the federal district courts and not with the appellate courts, which was followed by the dissolution of the stay by the Sixth Circuit. On February 6, 2018, the EPA and COE published a rule that delayed applicability of the CWR for two years. However, on August 16, 2018, the federal court in South Carolina enjoined the rule, effectively reinstating the CWR in Virginia and Pennsylvania (where we have operations) and in 24 other states. The injunction is being challenged on appeal. However, our West Virginia operations remain unaffected by the CWR, due to separate injunctions issued by federal courts in Georgia and North Dakota applicable to West Virginia and 23 other states. On February 28, 2017, while challenges to the CWR were pending, President Trump signed an executive order directing the EPA and the COE to review the CWR for consistency with the goals of “promoting economic growth and minimizing regulatory uncertainty” and to consider a new rule that reflects Justice Scalia’s plurality opinion in the 2006 Supreme Court decision, Rapanos v. United States , that CWA

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jurisdiction attaches only to “navigable waters” and other waters with a relatively permanent flow, such as rivers or lakes. On March 6, 2017, the EPA and the COE published a Notice of Intent to review and rescind or revise the rule. On February 6, 2018, the EPA and the COE published an amendment to the CWR which delays its applicability until February 6, 2020 and on June 29, 2018 the EPA and the COE published a supplemental notice indicating their intention to repeal the CWR and providing a variety of reasons to support such a repeal. The process to rescind or revise the CWR will likely be subject to extensive notice and comment and litigation.
Additionally, we may rely on nationwide permits under the CWA Section 404 program for some of our operations. These nationwide permits are issued every five years, and the 2017 nationwide permit program was recently reissued in January 2017. If we are unable to use the nationwide permits and require an individual permit for certain work, that could delay operations.
Many of our permits are subject to renewal from time to time, and renewed permits may contain more restrictive conditions than our existing permits. For example, many of our permits governing surface stream and groundwater discharges and impacts will be subject to new and more stringent conditions to address various new water quality requirements upon renewal over the next several years. Although we have no estimates at this time, our costs to satisfy these conditions could be substantial.
Future changes or challenges to the permitting and mine plan modification and approval process could cause additional increases in the costs, time, and difficulty associated with obtaining and complying with the permits, and could delay or prevent commencing or continuing exploration or production operations, and as a result, adversely affect our coal production, cash flows and profitability.
Federal and state regulatory agencies have the authority to order any of our facilities to be temporarily or permanently closed under certain circumstances, which could materially adversely affect our ability to meet our customers’ demands.
Federal and state regulatory agencies have the authority following significant health and safety incidents, such as fatalities, to order a facility to be temporarily or permanently closed. If this were to occur, we may be required to incur capital expenditures to re-open the facility. In the event that these agencies order the closing of our facilities, our coal sales agreements and our take-or-pay contracts related to our export terminals may permit us to issue force majeure notices, which suspend our obligations to deliver coal under these contracts. However, our customers may challenge our issuances of force majeure notices. If these challenges are successful, we may have to purchase coal from third-party sources, if it is available, to fulfill these obligations, incur capital expenditures to re-open the facilities and/or negotiate settlements with the customers, which may include price reductions, the reduction of commitments or the extension of time for delivery or terminate customers’ contracts. Any of these actions could have a material adverse effect on our business and results of operations.
We have obligations under various settlement agreements with state and federal agencies in relation to the Alpha Restructuring settlement and the failure to meet these obligations could result in the termination of such settlement agreements, the revocation of permits and regulatory or enforcement actions, among other things.
In connection with the Alpha Restructuring settlement, Alpha and Contura entered into a number of agreements with state and federal agencies regarding the funding, performance and bonding of reclamation and other environmental restoration obligations with respect to mine properties retained by Alpha under the Alpha Restructuring. These agreements have been amended from time to time in connection with sales by Alpha of certain of these properties. These agreements require Alpha and Contura to make periodic payments to certain accounts designated to fund reclamation and other activities at various Alpha and Contura facilities and also impose bonding, reporting and other obligations on Alpha. A failure by Alpha and Contura to fulfill their obligations under these agreements could be considered an event of default which could result in, among other things, the cancellation of Alpha’s permits, a termination of the agreement, termination of the right to use the funds in the Restricted Cash Reclamation Account, the Water Treatment Restricted Cash Account or the Mitigation Account and the taking of any regulatory or enforcement action that an agency enforcing such default is permitted to take. See “The Mergers — Material Contracts Between Contura and Alpha” for a detailed discussion of these obligations.
We are in the process of developing and maintaining proper and effective disclosure controls and procedures and internal control over financial reporting. We may not complete our development or implementation of our disclosure controls and procedures or internal control over financial reporting in a timely manner, or our disclosure controls and

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procedures or internal control may have one or more material weaknesses, which may adversely affect the value of our common stock.
We are in the costly and challenging process of compiling the systems and processing the documentation necessary to implement and evaluate the effectiveness of our disclosure controls and procedures and internal control over financial reporting. These activities may divert management’s attention from other business concerns. Further, during the development of these systems, it is possible that our financial statements could contain errors, which could have a material adverse effect on our business, financial condition, results of operations and cash flows, and cause investors to lose confidence in our reported results, thus affecting our ability to finance our business. To design, maintain and improve the effectiveness of our disclosure controls and procedures, we must commit significant resources, may be required to hire additional staff and need to continue to provide effective management oversight, which could have a material adverse effect on our business, financial condition, results of operations and cash flows.
Certain U.S. federal income tax provisions currently available with respect to coal percentage depletion and exploration and development may be eliminated by future legislation.
From time to time, legislation is proposed that could result in the reduction or elimination of certain U.S. federal income tax provisions currently available to companies engaged in the exploration, development, and production of coal reserves. These proposals have included, but are not limited to: (1) the elimination of current deductions, the 60-month amortization period and the 10-year amortization period for exploration and development costs relating to coal and other hard mineral fossil fuels, (2) the repeal of the percentage depletion allowance with respect to coal properties and (3) the repeal of capital gains treatment of coal and lignite royalties. The passage of these or other similar proposals could increase our taxable income and negatively impact our cash flows and the value of an investment in our common stock.
Changes in tax laws, particularly in the areas of non-income taxes, or obligations arising from audits of royalties previously paid to government entities, could cause our financial position and profitability to deteriorate.
We pay non-income taxes on the coal we produce. A substantial portion of our non-income taxes are levied as a percentage of gross revenues, while others are levied on a per ton basis. Further, liabilities could arise in connection with audits of royalties previously paid to government entities in connection with our former PRB operations. If such liabilities were to arise, or if non-income tax rates were to increase significantly, our results of operations could be materially and adversely affected.
Federal healthcare legislation could adversely affect our financial condition and results of operations.
In March 2010, the Patient Protection and Affordable Care Act (“PPACA”) was enacted, impacting our costs of providing healthcare benefits to our eligible active and certain retired employees and workers’ compensation benefits related to occupational disease resulting from coal workers’ pneumoconiosis (black lung). The PPACA has both short-term and long-term implications on benefit plan standards. Implementation of this legislation is expected to extend through 2022. In the short term, our healthcare costs could increase due to, among other things, an increase in the maximum age for covered dependents to receive benefits, changes to benefits for occupational disease related illnesses, the elimination of lifetime dollar limits per covered individual and restrictions on annual dollar limits per covered individual. In the long term, our healthcare costs could increase due to, among other things, an excise tax on “high cost” plans and the elimination of annual dollar limits per covered individual.
Beginning in 2022, the PPACA will impose a 40% excise tax on employers to the extent that the value of their healthcare plan coverage exceeds certain dollar thresholds. We anticipate that certain governmental agencies will provide additional regulations or interpretations concerning the application of this excise tax. We will continue to evaluate the impact of the PPACA, including any new regulations or interpretations, as well as efforts to limit or repeal the PPACA.
Risks Relating to Our Operations
Our coal mining production and delivery is subject to conditions and events beyond our control that could result in higher operating expenses and decreased production and sales. The occurrence of a significant accident or other event

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that is not fully insured could adversely affect our business and operating results and could result in impairments to our assets.
Our coal production at our mines is subject to operating conditions and events beyond our control that could disrupt operations, affect production and the cost of mining for varying lengths of time and have a significant impact on our operating results. Adverse operating conditions and events that we have experienced in the past and/or may experience in the future include:
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changes or variations in geologic, hydrologic or other conditions, such as the thickness of the coal deposits and the amount of rock, clay or other non-coal material embedded in or overlying the coal deposit;
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mining, processing and loading equipment failures and unexpected maintenance problems;
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limited availability or increased costs of mining, processing and loading equipment and parts and other materials from suppliers;
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difficulties associated with mining under or around surface obstacles;
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unfavorable conditions with respect to proximity to and availability, reliability and cost of transportation facilities;
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adverse weather and natural disasters, such as heavy snows, heavy rains and flooding, lightning strikes, hurricanes or earthquakes;
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accidental mine water discharges, coal slurry releases and failures of an impoundment or refuse area;
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mine safety accidents, including fires and explosions from methane and other sources;
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hazards or occurrences that could result in personal injury and loss of life;
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a shortage of skilled and unskilled labor;
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security breaches or terroristic acts;
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strikes and other labor-related interruptions;
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delays or difficulties in, the unavailability of, or unexpected increases in the cost of acquiring, developing or permitting new acquisitions from the federal government and other new mining reserves and surface rights;
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competition and/or conflicts with other natural resource extraction activities and production within our operating areas;
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the termination of material contracts by state or other governmental authorities; and
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fatalities, personal injuries or property damage arising from train derailments, mined material or overburden leaving permit boundaries, underground mine blowouts, impoundment failures, subsidence or other unexpected incidents.
If any of these or other conditions or events occur in the future at any of our mines or affect deliveries of our coal to customers, they may increase our cost of mining, delay or halt production or sales to our customers, result in regulatory action or lead to customers initiating claims against us. Any of these consequences could adversely affect our operating results or result in impairments to our assets. For example, on July 2, 2018, we announced that due to unforeseen geologic conditions due to reduced steam thickness and localized soft clay influences within the coal seam, both production and processing at our Cumberland line, our longwall mine located in NAPP, have slowed. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Management’s Discussion and Analysis of Financial Condition and Results of Operations of Contura — Business Developments — Cumberland Outlook Update.”
In addition, our mining operations are concentrated in a small number of mines. As a result, the effects of any of these conditions or events may be exacerbated and may have a disproportionate impact on our results of operations and assets.
We maintain insurance policies that provide limited coverage for some, but not all, of these risks. Even where covered by insurance, these risks may not be fully covered and insurers may contest their obligations to make payments. Failures by insurers to make payments could have a material adverse effect on our cash flows, results of operations or financial condition.

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A decline in demand for met coal would limit our ability to sell our high quality steam coal as higher priced met coal, which would reduce our revenues and profitability, and could affect the economic viability of some of our mines with higher operating costs.
We are able to mine, process and market some of our coal reserves as either met coal or high quality steam coal. In deciding our approach to these reserves, we assess the conditions in the met and steam coal markets, including factors such as the current and anticipated future market prices of steam coal and met coal, the generally higher price of met coal as compared to steam coal, the lower volume of saleable tons that results when producing coal for sale in the met market rather than the steam market, the increased costs of producing met coal, the likelihood of being able to secure a longer term sales commitment for steam coal and our contractual commitments to deliver different types of coal to our customers. A decline in demand for met coal relative to steam coal could cause us to shift coal from the met market to the steam market, thereby reducing our revenues and profitability.
Mining in Central and Northern Appalachia is more complex and involves more regulatory constraints than mining in other areas of the U.S., which could affect our mining operations and cost structures in these areas.
The geological characteristics of Northern and Central Appalachian coal reserves, such as depth of overburden and coal seam thickness, make them complex and costly to mine. As mines become depleted, replacement reserves may not be available or, if available, may not be able to be mined at costs comparable to those of the depleting mines. In addition, compared to mines in other areas of the country, permitting, licensing and other environmental and regulatory requirements are more costly and time consuming to satisfy. These factors could materially adversely affect the mining operations and cost structures of, and our customers’ ability to use coal produced by, our mines in Northern and Central Appalachia.
Disruptions in transportation services and increased transportation costs could impair our ability to supply coal to our customers, reduce demand and adversely affect our business.
On a pro forma basis, for the year ended December 31, 2017 and the six months ended June 30, 2018, 55% and 63%, respectively, of the combined company’s captive coal volume was transported from its mines to the customer by rail. Deterioration in the reliability of the service provided by rail carriers would result in increased internal coal handling costs and decreased shipping volumes, and if we are unable to find alternatives our business could be adversely affected. Some of our operations are serviced by a single rail carrier. Due to the difficulty in arranging alternative transportation, these operations are particularly at risk to disruptions, capacity issues or other difficulties with that carrier’s transportation services, which could adversely impact our revenues and results of operations.
We also depend upon trucks, beltlines, ocean vessels and barges to deliver coal to our customers. In addition, much of our eastern coal is transported from our mines to our loading facilities by trucks owned and operated by third parties. Disruption of any of these transportation services due to weather-related problems, mechanical difficulties, strikes, lockouts, bottlenecks, terrorist attacks and other events could impair our ability to supply coal to our customers, resulting in decreased shipments and revenue. Disruption in shipment levels over longer periods of time could cause our customers to look to other sources for their coal needs, negatively affecting our revenues and results of operations.
An increase in transportation costs could have an adverse effect on our ability to increase or to maintain production on a profit-making basis and could therefore adversely affect our revenues and earnings. Because transportation costs represent a significant portion of the total cost of coal for our customers, increases in transportation costs could also reduce overall demand for coal or make our coal production less competitive than coal produced from other sources or other regions.
Certain provisions in our coal supply agreements may result in economic penalties upon our failure to meet specifications.
Most of our coal supply agreements contain provisions requiring us to deliver coal meeting quality thresholds for certain characteristics such as BTU, sulfur content, ash content, grindability, moisture and ash fusion temperature. Failure to meet these specifications could result in economic penalties, including price adjustments, the rejection of deliveries or termination of the contracts. Further, some of our coal supply agreements allow our customers to terminate the contract in the event of regulatory changes that restrict the type of coal the customer may use at its facilities or the use of that coal or increase the price of coal or the cost of using coal beyond specified limits. In addition, our coal supply agreements typically contain force majeure provisions allowing temporary suspension of performance by us or the customer during specified events beyond the control of the affected party. As a result of these issues, we may not achieve the revenue or profit we expect to achieve from our coal supply agreements.

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Expenditures for certain employee benefits could be materially higher than we have anticipated, which could increase our costs and adversely affect our financial results.
The combined company will be responsible for certain liabilities under a variety of benefit plans and other arrangements with employees. The unfunded status of these obligations for the combined company as of June 30, 2018, on a pro forma basis, included $171.0 million of workers’ compensation obligations, $211.5 million of pension and post-retirement medical benefit obligations, and $106.2 million of black lung obligations. These obligations have been estimated based on assumptions including actuarial estimates, discount rates, and changes in health care costs. We could be required to expend greater amounts than anticipated. In addition, future regulatory and accounting changes relating to these benefits could result in increased obligations or additional costs, which could also have a material adverse effect on our financial results. Several states in which we operate consider changes in workers’ compensation laws from time to time, which, if enacted, could adversely affect us.
We require a skilled workforce to run our business. If we cannot hire qualified persons to meet replacement or expansion needs, we may not be able to achieve planned results.
Efficient coal mining using modern techniques and equipment requires skilled laborers with mining experience and proficiency as well as qualified managers and supervisors. The demand for skilled employees sometimes causes a significant constriction of the labor supply resulting in higher labor costs. When coal producers compete for skilled miners, recruiting challenges can occur and employee turnover rates can increase, which negatively affect operating efficiency and costs. If a shortage of skilled workers exists and we are unable to train or retain the necessary number of miners, it could adversely affect our productivity, costs and ability to expand production.
If the assumptions underlying our accruals for reclamation and mine closure obligations prove to be inaccurate, we could be required to expend greater amounts than anticipated.
The Surface Mining Control and Reclamation Act (“SMCRA”) establishes operational, reclamation and closure standards for all aspects of surface mining as well as deep mining. We accrue for the costs of current mine disturbance and final mine closure, including the cost of treating mine water discharge where necessary. The combined company's pro forma estimated total reclamation and mine-closing liabilities total $266.5 million and $273.0 million as of December 31, 2017 and June 30, 2018, respectively, based upon permit requirements and the historical experience at our operations, and depend on a number of variables involving assumptions and estimation and therefore may be subject to change, including the estimated future asset retirement costs and the timing of such costs, estimated proven reserves, assumptions involving profit margins of third-party contractors, inflation rates and discount rates. Furthermore, these obligations are primarily unfunded. If these accruals are insufficient or our liability in a particular year is greater than currently anticipated, our future operating results and financial position could be adversely affected. In addition, significant changes from period to period could result in significant variability in our operating results, which could reduce comparability between periods and impact our liquidity. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Management’s Discussion and Analysis of Financial Condition and Results of Operations of Contura” for a description of Contura’s estimated costs of these liabilities. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations —Management’s Discussion and Analysis of Financial Condition and Results of Operations of ANR” for a description of ANR’s estimated costs of these liabilities.
Estimates of our economically recoverable coal reserves involve uncertainties, and inaccuracies in our estimates could result in lower than expected revenues, higher than expected costs, decreased profitability and asset impairments.
We base our estimates of our economically recoverable coal reserves on engineering, economic and geological data assembled and analyzed by our staff, including various engineers and geologists, and periodically reviewed by outside firms. Our estimates as to the quantity and quality of the coal in our reserves are updated annually to reflect production of coal from the reserves and new drilling, engineering or other data. These estimates depend upon a variety of factors and assumptions, many of which involve uncertainties and factors beyond our control and may vary considerably from actual results, such as:
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geological and mining conditions that may not be fully identified by available exploration data or that may differ from experience in current operations;
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historical production from the area compared with production from other similar producing areas;
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the assumed effects of regulation and taxes by governmental agencies; and
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assumptions about coal prices, operating costs, mining technology improvements, development costs and reclamation costs.

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For these reasons, estimates of the economically recoverable quantities and qualities attributable to any particular group of properties, classifications of reserves based on risk of recovery and estimates of net cash flows expected from particular reserves prepared by different engineers or by the same engineers at different times may vary substantially. In addition, actual coal tonnage recovered from identified reserve areas or properties and revenues and expenditures with respect to our reserves may vary materially from estimates. Accordingly, our estimates may not accurately reflect our actual reserves. Any inaccuracy in our reserve estimates could result in lower than expected revenues, higher than expected costs, decreased profitability and asset impairments.
Our business will be adversely affected if we are unable to timely develop or acquire additional coal reserves that are economically recoverable.
Our profitability depends substantially on our ability to mine in a cost-effective manner coal reserves of the quality our customers need. Although we have coal reserves that we believe could support current production levels for more than 35 years, we have not yet developed the mines for all our reserves. We may not be able to mine all of our reserves as profitably as we do at our current operations. Under adverse market conditions, some reserves could not be mined profitably at all. In addition, in order to develop our reserves, we must receive various governmental permits. As discussed above, some of these permits are becoming increasingly more difficult and expensive to obtain and the review process continues to lengthen. We may be unable to obtain the necessary permits on terms that would permit us to operate profitably or at all.
Because our reserves are depleted as we mine our coal, our future success and growth depend in part on our ability to timely acquire additional coal reserves that are economically recoverable. Our planned development projects and acquisition activities may not result in significant additional reserves, and we may not succeed in developing new mines or expanding existing mines beyond our existing reserves. Replacement reserves may not be available when required or, if available, may not be able to be mined at costs comparable to those of the depleting mines. We may not be able to accurately assess the geological characteristics of any reserves that we now own or subsequently acquire, which may adversely affect our profitability and financial condition. Exhaustion of reserves at particular mines also may have an adverse effect on our operating results due to lost production capacity from diminished or discontinued operations at those mines, as well as lay-offs, write-off charges and other costs, potentially causing an adverse effect that is disproportionate to the percentage of overall production represented by those mines. Our ability to acquire other reserves in the future could be limited by restrictions under our existing or future debt agreements, competition from other coal companies for attractive properties or the lack of suitable acquisition candidates available on commercially reasonable terms, among other factors. If we are unable to replace or increase our coal reserves on acceptable terms, our production and revenues will decline as our reserves are depleted.
If we are unable to acquire surface rights to access our coal reserves, we may be unable to obtain a permit to mine coal we own and may be required to employ expensive techniques to mine around those sections of land we cannot access in order to access other sections of coal reserves, which could materially and adversely affect our business and our results of operations.
After we acquire coal reserves, we are required to obtain a permit to mine the reserves through the applicable state agencies prior to mining the acquired coal. In part, permitting requirements provide that, under certain circumstances, we must obtain surface owner consent if the surface estate has been severed from the mineral estate, which is commonly known as a “severed estate.” At certain of our mines where we have obtained the underlying coal and the surface is held by one or more owners, we are engaged in negotiations for surface access with multiple parties. If we are unable to successfully negotiate surface access with any or all of these surface owners, or to do so on commercially reasonable terms, we may be denied a permit to mine some or all of our coal or may find that we cannot mine the coal at a profit. If we are denied a permit, this would create significant delays in our mining operations and materially and adversely impact our business and results of operations. Furthermore, if we decide to alter our plans to mine around the affected areas, we could incur significant additional costs to do so, which could increase our operating expenses considerably and could materially and adversely affect our results of operations.
If Contura or Alpha is unable to complete the permit transfers as expected or if there are complications in connection with the permit transfer process, it could materially and adversely affect the combined company’s business and results of operations.
On December 8, 2017, Contura closed a transaction (“PRB Transaction”) with Blackjewel L.L.C. (“Blackjewel”) to sell the Eagle Butte and Belle Ayr mines located in the Powder River Basin, including applicable permits. Alpha has similarly sold permits that are in the process of being transferred. During the permit transfer period, Contura and Alpha, as applicable, must maintain the required reclamation bonds and related collateral, which are off-balance sheet arrangements. If the permit transfer process is not completed as expected, or if there are complications in connection with the process, Contura and Alpha, as

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applicable, will remain obligated to maintain such bonds and collateral, which could materially and adversely affect the combined company’s business and our results of operations.
Our work force could become increasingly unionized in the future and our unionized or union-free work force could strike, which could adversely affect the stability of our production and reduce our profitability.
Approximately 85% of the combined company’s total workforce and approximately 78% of the combined company’s hourly workforce was union-free as of June 30, 2018. However, under the National Labor Relations Act, employees have the right at any time to form or affiliate with a union. Any further unionization of our employees or the employees of third-party contractors who mine coal for us could adversely affect the stability of our production and reduce our profitability.
Certain of Contura’s subsidiaries have wage agreements with the United Mine Workers of America (“UMWA”) that are subject to termination by either the employer or the UMWA, without cause, on July 31, 2020. Either party may also reopen the wage agreements on July 26, 2018, for the sole purpose of renegotiating changes in the hourly wage rates, by giving written notice to the other party during the period from May 1, 2018 through June 1, 2018. On May 1, 2018, the UMWA issued such notice to the signatory employers.
Certain of Alpha’s subsidiaries have wage agreements with the UMWA that are subject to termination by either the employer or the UMWA, without cause, on July 31, 2020. Either party may also reopen the wage agreements on July 15, 2018, for the sole purpose of renegotiating changes in the hourly wage rates, by giving written notice to the other party during the period from May 1, 2018 through June 1, 2018. On May 2, 2018, the UMWA issued such notice to the signatory employers.
As is the case with our union-free operations, the union-represented employees could strike, which would disrupt our production, increase our costs and disrupt shipments of coal to our customers, and could result in the closure of affected mines, all of which could reduce our profitability.
Conflicts with competing holders of mineral rights and rights to use adjacent, overlying or underlying lands could materially and adversely affect our ability to mine coal or do so on a cost-effective basis.
Our operations at times face potential conflicts with holders of other mineral interests such as coalbed methane, natural gas and oil reserves. Some of these minerals are located on, or are adjacent to, some of our coal reserves and active operations, potentially creating conflicting interests between us and the holders of those interests. From time to time we acquire these minerals ourselves to prevent conflicting interests from arising. If, however, conflicting interests arise and we do not acquire the competing mineral rights, we may be required to negotiate our ability to mine with the holder of the competing mineral rights. Furthermore, the rights of third parties for competing uses of adjacent, overlying or underlying lands, such as oil and gas activity, coalbed methane, pipelines, roads, easements and public facilities, may affect our ability to operate as planned if our title is not superior or arrangements cannot be negotiated. If we are unable to reach an agreement with these holders of such rights, or to do so on a cost-effective basis, we may incur increased costs and our ability to mine could be impaired, which could materially and adversely affect our business and results of operations.
Provisions in our lease agreements, defects in title in our mine properties or loss of leasehold rights could limit our ability to recover coal from our properties or result in significant unanticipated costs.
We conduct a significant part of our mining operations on properties that we lease. Title to most of our leased properties and mineral rights is not thoroughly verified until a permit to mine the property is obtained, and in some cases, title is not verified at all. Accordingly, actual or alleged defects in title or boundaries may exist, which may result in the loss of our right to mine on the property or in unanticipated costs to obtain leases or mining contracts to allow us to conduct our mining operations on the property, which could adversely affect our business and profitability. Furthermore, some leases require us to produce a minimum quantity of coal and/or pay minimum production royalties. If those requirements are not met, the leasehold interest may terminate.
Decreased availability or increased costs of key equipment and materials could impact our cost of production and decrease our profitability.
We depend on reliable supplies of mining equipment, replacement parts and materials such as explosives, diesel fuel, tires, steel, magnetite and other raw materials and consumables which, in some cases, do not have ready substitutes. The supplier base providing mining materials and equipment has been relatively consistent in recent years, although there continues to be consolidation, which has resulted in a limited number of suppliers for certain types of equipment and supplies. Any significant reduction in availability or increase in cost of any mining equipment or key supplies could adversely affect our operations and increase our costs, which could adversely affect our operating results and cash flows.

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Some equipment and materials are needed to comply with regulations. For example, MSHA and other regulatory agencies sometimes make changes with regards to requirements for pieces of equipment. In 2015, MSHA promulgated a new regulation requiring the implementation of proximity detection devices on continuous mining machines. Such changes could cause delays if manufacturers and suppliers are unable to make the required changes in compliance with mandated deadlines.
In addition, the prices we pay for these materials are strongly influenced by the global commodities markets. Coal mines consume large quantities of commodities such as steel, copper, rubber products, explosives and diesel and other liquid fuels. If the value of the U.S. dollar declines relative to foreign currencies with respect to certain imported supplies or other products, our operating expenses will increase, which could materially adversely impact our profitability. Some materials, such as steel, are needed to comply with regulatory requirements. Furthermore, operating expenses at our mining locations are sensitive to changes in certain variable costs, including diesel fuel prices, which is one of our largest variable costs. Our results depend on our ability to adequately control our costs. Any increase in the price we pay for diesel fuel will have a negative impact on our results of operations. A rapid or significant increase in the cost of these commodities could increase our mining costs because we have limited ability to negotiate lower prices.
Some of the combined company’s mines will be operated by third-party contract mine operators, and our results of operations could be adversely affected if these operators fail to operate the mines effectively.
Some of the combined company’s mines will be operated by third-party contract mine operators. While we have certain contractual rights of oversight over these mines, which are operated under our permits, we do not control, and our employees do not participate in, the day-to-day operations of these mines. Operational difficulties at these mines, increased competition for contract miners from other coal producers and other factors beyond our control could affect the availability, cost and quality of coal produced for us by contractors. Disruption in our supply of contractor-produced coal could impair our ability to fill our customers’ orders or require us to pay higher prices to obtain the required coal from other sources. Any increase in the per-ton compensation for services we pay for the production of contractor-produced coal could increase our costs and therefore lower our earnings and adversely affect our results of operations.
Strategic transactions, including acquisitions, involve a number of risks, any of which could result in a material adverse effect on our business, financial condition or results of operations.
In the future, we may undertake strategic transactions such as the acquisition or disposition of coal mining and related infrastructure assets, interests in coal mining companies, joint ventures or other strategic transactions involving companies with coal mining or other energy assets. Our ability to complete these transactions is subject to the availability of attractive opportunities, including potential acquisition targets that can be successfully integrated into our existing business and provide us with complementary capabilities, products or services on terms acceptable to us, as well as general market conditions, among other things.
Risks inherent in these strategic transactions include:
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uncertainties in assessing the value, strengths, and potential profitability, and identifying the extent of all weaknesses, risks, contingent liabilities and other liabilities of acquisition candidates and strategic partners;
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the potential loss of key customers, management and employees of an acquired business;
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the ability to achieve identified operating and financial synergies from an acquisition or other strategic transactions in the amounts and on the time frame due to inaccurate assumptions underlying estimates of expected cost savings, the deterioration of general industry and business conditions, unanticipated legal, insurance and financial compliance costs, or other factors;
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the ability of management to manage successfully our exposure to pending and potential litigation and regulatory obligations;
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unanticipated increases in competition that limit our ability to expand our business or capitalize on expected business opportunities, including retaining current customers; and
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unanticipated changes in business, industry, market, or general economic conditions that differ from the assumptions underlying our rationale for pursuing the acquisition or other strategic transactions.
The ultimate success of any strategic transaction we may undertake will depend in part on our ability to continue to realize the anticipated synergies, business opportunities and growth prospects from those transactions. We may not be able to

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successfully integrate the companies, businesses or properties that we acquire, invest in or partner with. Problems that could arise from the integration of an acquired business may involve:
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coordinating management and personnel and managing different corporate cultures;
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applying our safety program at acquired mines and facilities;
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establishing, testing and maintaining effective internal control processes and systems of financial reporting for the acquired business;
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the diversion of our management’s and our finance and accounting staff’s resources and time commitments, and the disruption of either our or the acquired company’s ongoing businesses;
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tax costs or inefficiencies; and
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inconsistencies in standards, information technology systems, procedures or policies.
Any one or more of these factors could cause us not to realize the benefits anticipated from a strategic transaction, adversely affect our ability to maintain relationships with clients, employees or other third parties or reduce our earnings.
Moreover, any strategic transaction we pursue could materially affect our liquidity and capital resources and may require us to incur indebtedness, seek equity capital or do both. Future transactions could also result in our assuming more long-term liabilities relative to the value of the acquired assets. Further, acquisition accounting rules require changes in certain assumptions made subsequent to the measurement period, as defined in current accounting standards, to be recorded in current period earnings, which could affect our results of operations.
We may be unable to generate sufficient taxable income from future operations, or other circumstances could arise, which may limit our ability to utilize our tax net operating loss carryforwards or maintain our deferred tax assets.
We acquired the core coal assets of Alpha as part of Alpha’s bankruptcy restructuring in transactions intended to be treated as a tax-free reorganization for U.S. federal income tax purposes. As a result of these transactions, we inherited the tax basis of the core assets and the net operating loss and other carryforwards of Alpha. These carryforwards and tax basis were subject to reduction on December 31, 2016 due to the cancellation of indebtedness resulting from Alpha’s bankruptcy restructuring. Due to the change in ownership, the net operating loss and other carryforwards will be subjected to limitations on their use in future years. In addition, we do not have a long history of operating results, and if we are unable to generate profits in the future, we may be unable to utilize these carryforwards. As of June 30, 2018, we recorded a full valuation allowance against our net deferred tax assets, excluding the alternative minimum tax credit carryforwards (“AMT Credits”).
Negative or unexpected consequences of the Tax Cuts and Jobs Act could affect the business of the combined company.
On December 22, 2017, legislation commonly referred to as the Tax Cuts and Jobs Act (the “TCJA”) significantly revised U.S. federal corporate tax law by, among other things, reducing the U.S. federal corporate income tax rate to 21%, eliminating the corporate alternative minimum tax, providing a mechanism for corporations to monetize alternative minimum tax credits (“AMT Credits”) during the 2018 to 2021 tax years, limiting the tax deduction for interest expense to 30% of adjusted earnings, allowing immediate expensing for certain new investments, and, effective for net operating losses arising in taxable years beginning after December 31, 2017, eliminating net operating loss carrybacks, permitting indefinite net operating loss carryforwards, and limiting the use of net operating loss carryforwards to 80% of current year taxable income.
There are a number of uncertainties and ambiguities as to the interpretation and application of many of the provisions in the TCJA. In the absence of guidance of these issues, we will use what we believe are reasonable interpretations and assumptions in interpreting and applying the TCJA for purposes of determining our cash tax liabilities and results of operations, which may change as we receive additional clarification and implementation guidance and as the interpretation of the TCJA evolves over time. It is possible that the IRS could issue subsequent guidance or take positions on audit that differ from the interpretations and assumptions that we previously made, which could have a material adverse effect on our cash tax liabilities, results of operations and financial condition.
Our business requires substantial capital investment and maintenance expenditures, which we may be unable to provide.
Our business plan and strategy require substantial capital expenditures. We require capital for, among other purposes, acquisition of surface rights, equipment and the development of our mining operations, capital renovations, maintenance and expansions of plants and equipment and compliance with environmental laws and regulations. Future debt or equity financing may not be available or, if available, may result in dilution or not be available on satisfactory terms. If we are unable to obtain

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additional capital, we may not be able to maintain or increase our existing production rates and we could be forced to reduce or delay capital expenditures or change our business strategy, sell assets or restructure or refinance our indebtedness, all of which could have a material adverse effect on our business or financial condition.
Changes in the fair value of derivative instruments and other assets or liabilities that are marked to market could cause volatility in our earnings.
Pursuant to the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, dated May 27, 2016, as modified and confirmed by the Order Confirming Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as Modified (Docket No. 3038), entered by the Bankruptcy Court on July 12, 2016, Alpha has contingent revenue payment obligations to certain of Alpha Natural Resources, Inc.’s (“Predecessor Alpha”) creditors, which are recorded at fair market value and marked to market in each reporting period, with changes in value reflected in earnings. Any change in fair value can have a significant impact on our earnings from period to period, including in the future.
Cybersecurity attacks, natural disasters, terrorist attacks and other similar crises or disruptions may negatively affect our business, financial condition and results of operations, or those of our customers and suppliers.
Our business, or the businesses of our customers and suppliers, may be impacted by disruptions such as cybersecurity attacks or failures, threats to physical security, and extreme weather conditions or other natural disasters. Strategic targets, such as energy-related assets, may be at greater risk of future terrorist or cybersecurity attacks than other targets in the U.S. These disruptions or any significant increases in energy prices that follow could result in government-imposed price controls. Our insurance may not protect us against such occurrences. It is possible that any of these occurrences, or a combination of them, could have a material adverse effect on our business, financial condition and results of operations. Further, as cybersecurity attacks continue to evolve, we may be required to expend additional resources to continue to modify or enhance our protective measures or to investigate and remediate any vulnerability to cybersecurity attacks.
Risks Relating to Our Liquidity
Our indebtedness exposes us to various risks.
At June 30, 2018, we had $569.6 million of indebtedness outstanding, on a pro forma basis, before discounts and issuance costs applied for financial reporting, of which $124.4 million will mature in the next three years.
Our indebtedness could have important consequences to our business. For example, it could:
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make it more difficult for us to pay or refinance our debts as they become due during adverse economic and industry conditions because any related decrease in revenues could cause us to not have sufficient cash flows from operations to make our scheduled debt payments;
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force us to seek additional capital, restructure or refinance our debts, or sell assets;
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cause us to be less able to take advantage of significant business opportunities such as acquisition opportunities and to react to changes in market or industry conditions;
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cause us to use a portion of our cash flow from operations for debt service, reducing the availability of working capital and delaying or preventing investments, capital expenditures, research and development and other business activities;
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cause us to be more vulnerable to general adverse economic and industry conditions;
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expose us to the risk of increased interest rates because certain of our borrowings are at variable rates of interest;
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expose us to the risk of foreclosure on substantially all of our assets and those of most of our subsidiaries, which secure certain of our indebtedness if we default on payment or are unable to comply with covenants or restrictions in any of the agreements;
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limit our ability to borrow additional monies in the future to fund working capital, capital expenditures and other general corporate purposes; and
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result in a downgrade in the credit ratings of our indebtedness, which could harm our ability to incur additional indebtedness and result in more restrictive borrowing terms, including increased borrowing costs and more

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restrictive covenants, all of which could affect our internal cost of capital estimates and therefore impact operational and investment decisions.
Our ability to meet our debt service obligations will depend on our future cash flow from operations and our ability to restructure or refinance our debt, which will depend on the condition of the capital markets and our financial condition at that time. We may incur additional secured or unsecured indebtedness in the future, subject to compliance with covenants in our existing debt agreements. Any refinancing of our debt could be at higher interest rates and may require us to comply with more onerous covenants, which could further restrict our business operations. These alternative measures may not be successful and may not permit us to meet our scheduled debt service obligations, and the terms of existing or future debt instruments may restrict us from adopting some of these alternatives.
Pressure on our business, cash flow and liquidity could materially and adversely affect our ability to fund our business operations or react to and withstand changing market and industry conditions. Additional sources of funds may not be available.
A significant source of liquidity is our cash balances. Access to additional funds from liquidity-generating transactions or other sources of external financing may not be available to us and, if available, would be subject to market conditions and certain limitations including our credit rating and covenant restrictions in our credit facility and indentures.
Our ability to make the required payments on our indebtedness depends on the cash flow generated by our subsidiaries, which may be constrained by legal, contractual, market or operating conditions from paying dividends to us.
We will depend to a significant extent on the generation of cash flow by our subsidiaries and their ability to make that cash available to us, by dividend, debt repayment or otherwise. These subsidiaries may not be able to, or be permitted to, make distributions to enable us to make payments in respect of our indebtedness. Each of these subsidiaries is a distinct legal entity and, under certain circumstances, legal and contractual restrictions, as well as the financial condition and operating requirements of our subsidiaries, may limit our ability to obtain cash from our subsidiaries. In the event that we do not receive distributions from our subsidiaries, we may be unable to make required payments of principal, premium, if any, and interest on our indebtedness.
Failure to obtain or renew surety bonds on acceptable terms could affect our ability to secure reclamation and coal lease obligations, which could adversely affect our ability to mine or lease coal.
Federal and state laws require us to obtain surety bonds to secure payment of certain long-term obligations such as mine closure or reclamation costs, federal and state workers’ compensation costs (including related to black lung), coal leases and other obligations. These bonds are typically renewable annually. Under applicable regulations, self-bonding may not be available to us as a means to comply with our reclamation bonding obligations for the foreseeable future. Surety bond issuers and holders may not continue to renew the bonds, may demand less favorable terms upon renewal or may impose new or increased collateral requirements. As of December 31, 2017 and June 30, 2018, on a pro forma basis, the combined company had outstanding surety bonds with third parties of approximately $669.0 million and $575.2 million, respectively. Surety bond issuers and holders may demand additional collateral, unfavorable terms or higher fees. Our failure to retain, or inability to acquire, surety bonds or to provide a suitable alternative could adversely affect our ability to mine or lease coal, which would materially adversely affect our business and results of operations. That failure could result from a variety of factors, including lack of availability, higher expense or unfavorable market terms, the exercise by third-party surety bond issuers of their right to refuse to renew the surety bonds, restrictions on availability of collateral for current and future third-party surety bond issuers under the terms of any credit arrangements then in place, or our inability to comply with our reclamation bonding obligations through self-bonding. In addition, as a result of increasing credit pressures on the coal industry, it is possible that surety bond providers could demand cash collateral as a condition to providing or maintaining surety bonds. Any such demands, depending on the amount of any cash collateral required, could have a material adverse impact on our liquidity and financial position. If we are unable to meet cash collateral requirements and cannot otherwise obtain or retain required surety bonds, we may be unable to satisfy legal requirements necessary to conduct our mining operations.
Difficulty in acquiring surety bonds, or additional collateral requirements, would increase our costs and likely require greater use of alternative sources of funding for this purpose, which would reduce our liquidity. If we are unable to provide

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the financial assurance that is required by state and federal law to secure our reclamation and coal lease obligations, our ability to mine or lease coal and, as a result, our results of operations could be materially and adversely affected.
The terms of our borrowing arrangements limit our and our subsidiaries’ ability to take certain actions, which may limit our operating and financial flexibility and adversely affect our business.
Our borrowing arrangements contain, and any future borrowing arrangements are also likely to contain, a number of significant restrictions and covenants that limit our ability and our subsidiaries’ ability to, among other things, incur additional indebtedness, enter into sale and leaseback transactions, pay dividends, make redemptions and repurchases of certain capital stock, make loans and investments, create liens, sell certain assets, engage in transactions with affiliates, and merge or consolidate with other companies or sell substantially all of our assets. These covenants could adversely affect our ability to finance our future operations or capital needs or to execute preferred business strategies. In addition, complying with these covenants may make it more difficult for us to successfully execute our business strategy and compete against companies who are not subject to such restrictions. We regularly evaluate opportunities to enhance our capital structure and financial flexibility through a variety of methods, including repayment or repurchase of outstanding debt, amendment of our credit facility and other facilities, and other methods. As a result of any of these actions, the restrictions and covenants that apply to us may become more restrictive or otherwise change.
Operating results below current levels, or other adverse factors, including a significant increase in interest rates, could result in our being unable to comply with our covenants and payment obligations contained in our borrowing arrangements. If we violate these covenants or obligations under any of these agreements and are unable to obtain waivers from our lenders, our debt under all of these agreements would be in default and could be accelerated by our lenders. If our indebtedness is accelerated, we may not be able to repay our debt or borrow sufficient funds to refinance it. Even if we were able to obtain new financing, it may not be on commercially reasonable terms or on terms that are acceptable to us. If our debt is in default for any reason, our business, financial condition, results of operations and cash flows could be materially and adversely affected.
The need to maintain capacity for required letters of credit could limit our ability to provide financial assurance for self-insured obligations and negatively impact our ability to fund future working capital, capital expenditure or other general corporate requirements.
On April 3, 2017, Contura entered into the Asset-Based Revolving Credit Agreement, amended on June 9, 2017, which among other things includes a letter of credit facility that provides for the issuance of letters of credit. Obligations secured by letters of credit may increase in the future. If we do not maintain sufficient borrowing capacity under our letter of credit facility, we may be unable to provide financial assurance for self-insured obligations and could negatively impact our ability to fund future working capital, capital expenditure or other general corporate requirements.
Risks Relating to the Ownership of our Common Stock
The requirements of being a public company, including compliance with the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the requirements of the Sarbanes-Oxley Act, may strain our resources, increase our costs and distract management, and we may be unable to comply with these requirements in a timely or cost-effective manner.
As a public company, we will need to comply with new laws, regulations and requirements, certain corporate governance provisions of the Sarbanes-Oxley Act of 2002, related regulations of the SEC and the requirements of the NYSE, with which we are not currently required to comply as a private company. Complying with these statutes, regulations and requirements will occupy a significant amount of time for our board of directors and management and will significantly increase our costs and expenses. We will need to:
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institute a more comprehensive compliance function;
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comply with rules promulgated by the NYSE;
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prepare and distribute periodic public reports in compliance with our obligations under the federal securities laws;

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•
establish new internal policies; and
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retain and involve to a greater degree outside counsel and accountants in the above activities.
Our independent registered public accounting firm may issue a report that is adverse in the event it is not satisfied with the level at which our controls are documented, designed, operated or reviewed. Compliance with these requirements may strain our resources, increase our costs and distract management, and we may be unable to comply with these requirements in a timely or cost-effective manner.
In addition, we expect that being a public company subject to these rules and regulations may make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified individuals to serve on our board of directors or as executive officers. We are currently evaluating these rules, and we cannot predict or estimate the amount of additional costs we may incur or the timing of such costs.
An active, liquid and orderly trading market for our common stock may not develop or be maintained, and our stock price may be volatile.
Contura’s common stock currently trades in over-the-counter markets and is quoted on the OTC Pink ® under the ticker symbol “CNTE.” An active, liquid and orderly trading market for our common stock may not develop or be maintained once it is listed on the NYSE. Active, liquid and orderly trading markets usually result in less price volatility and more efficiency in carrying out investors’ purchase and sale orders. The market price of our common stock could vary significantly as a result of a number of factors, some of which are beyond our control. In the event of a drop in the market price of our common stock, you could lose a substantial part or all of your investment in our common stock.
The following factors, among others, could affect our stock price:
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our operating and financial performance, including reserve estimates;
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quarterly variations in the rate of growth of our financial indicators, such as net income per share, net income and revenues;
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the public reaction to our press releases, our other public announcements and our filings with the SEC;
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strategic actions by our competitors;
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changes in revenue or earnings estimates, or changes in recommendations or withdrawal of research coverage, by equity research analysts;
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speculation in the press or investment community;
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research analysts’ coverage of our common stock, or their failure to cover our common stock;
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sales of our common stock by us, our directors or officers or the selling stockholders or the perception that such sales may occur;
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our payment of dividends;
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changes in accounting principles, policies, guidance, interpretations or standards;
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additions or departures of key management personnel;
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actions by our stockholders;
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general market conditions, including fluctuations in commodity prices;
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domestic and international economic, legal and regulatory factors unrelated to our performance; and

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•
the realization of any risks described under this “Risk Factors” section or described elsewhere in this document.
The stock markets in general have experienced extreme volatility that has often been unrelated to the operating performance of particular companies. These broad market fluctuations may adversely affect the trading price of our common stock. Securities class action litigation has often been instituted against companies following periods of volatility in the overall market and in the market price of a company’s securities. Such litigation, if instituted against us, could result in very substantial costs, divert our management’s attention and resources and harm our business, operating results and financial condition.
Future sales of our common stock in the public market, or the perception that such sales may occur, could reduce our stock price, and any additional capital raised by us through the sale of equity or convertible securities may dilute your ownership in us.
We may issue additional shares of common stock or convertible securities in subsequent public offerings. After the completion of the mergers, we estimate that we will have approximately [ Ÿ ] outstanding shares of common stock, assuming no exercise of outstanding options, no settlement of outstanding restricted stock units that by their terms are expected to settle after the listing on the NYSE and no exercise of outstanding warrants. This number includes an estimated [ Ÿ ] shares of common stock to be issued to Alpha stockholders in connection with the mergers.
Following our registration, we intend to file a registration statement with the SEC on Form S-8 providing for the registration of [ Ÿ ] shares of our common stock issued or reserved for issuance under our equity incentive plans. Upon satisfaction of vesting conditions, shares registered under the registration statement on Form S-8 will be available for resale immediately in the public market without restriction, subject to Rule 144 limitations with respect to affiliates. In addition, as described below, 9,357,844 shares of common stock and 801,983 warrants issued in reliance on Section 1145(a)(1) of the Bankruptcy Code pursuant to Alpha’s Plan of Reorganization (and the shares of common stock issuable upon exercise of such warrants) may be resold without registration unless the seller is an “underwriter” with respect to those securities, and 650,000 shares of common stock sold pursuant to Section 4(a)(2) of the Securities Act in connection with Alpha’s Plan of Reorganization may be resold without registration pursuant to Rule 144 under the Securities Act.
We cannot predict the size of future issuances of our common stock or securities convertible into common stock or the effect, if any, that future issuances and sales of shares of our common stock will have on the market price of our common stock or the dividend amount payable per share on our common stock. Sales of substantial amounts of our common stock (including shares issued in connection with an acquisition), or the perception that such sales could occur, may adversely affect prevailing market prices of our common stock or the dividend amount payable per share on our common stock. In addition, the issuance of shares of common stock upon the exercise of outstanding options will result in dilution to the interests of other stockholders. For additional information, see the section entitled “Description of Contura Capital Stock” beginning on page 269.
We may issue preferred stock whose terms could adversely affect the voting power or value of our common stock.
Our amended and restated certificate of incorporation authorizes us to issue, without the approval of our stockholders, one or more classes or series of preferred stock having such designations, preferences, limitations and relative rights, including preferences over our common stock respecting dividends and distributions, as our board of directors may determine. The terms of one or more classes or series of preferred stock could adversely impact the voting power or value of our common stock. For example, we might grant holders of preferred stock the right to elect some number of our directors in all events or on the happening of specified events or the right to veto specified transactions. Similarly, the repurchase or redemption rights or liquidation preferences we might assign to holders of preferred stock could affect the residual value of the common stock.
If securities or industry analysts do not publish research or reports about our business, if they adversely change their recommendations regarding our common stock or if our operating results do not meet their expectations, our stock price could decline.
The trading market for our common stock will be influenced by the research and reports that securities or industry analysts publish about us or our business. Securities and industry analysts currently publish research focused on Contura, but

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there is no guarantee they will continue to publish such research on the combined company in the future. If securities or industry analysts initiate coverage and one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline. Moreover, if one or more of the analysts who cover our company downgrades our common stock or if our operating results do not meet their expectations, our stock price could decline.
Provisions in our organizational documents and the instruments governing our debt may discourage a takeover attempt even if doing so might be beneficial to our stockholders.
Following the completion of the mergers, provisions contained in our amended and restated certificate of incorporation and amended and restated bylaws could impose impediments to the ability of a third-party to acquire us even if a change of control would be beneficial to our stockholders. Provisions of our amended and restated certificate of incorporation and amended and restated bylaws impose various procedural and other requirements, which could make it more difficult for stockholders to effect certain corporate actions. For example, our amended and restated certificate of incorporation authorizes our board of directors to determine the rights, preferences, privileges and restrictions of unissued series of preferred stock, without any vote or action by our stockholders. Thus, our board of directors can authorize the issuance of shares of preferred stock with voting or conversion rights that could adversely affect the voting or other rights of holders of our common stock. These provisions may have the effect of delaying or deterring a change of control of our company, and could limit the price that certain investors might be willing to pay in the future for shares of our common stock. See “Description of Contura Capital Stock — Anti-takeover Effects of Certain Provisions of Contura’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws.”
A Change of Control (as defined in the Term Loan Credit Agreement and the Asset-Based Revolving Credit Agreement) is an event of default under the Term Loan Credit Agreement and the Asset-Based Revolving Credit Agreement, permitting our lenders to accelerate the maturity of certain borrowings. Further, our borrowing arrangements impose other restrictions on us, including with respect to mergers or consolidations with other companies and the sale of substantially all of our assets. These provisions could prevent or deter a third-party from acquiring us even where the acquisition could be beneficial to our stockholders.
Our amended and restated bylaws will provide, subject to certain exceptions, that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for certain stockholder litigation matters, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, employees or stockholders.
Our amended and restated bylaws will provide, subject to limited exceptions, that the Court of Chancery of the State of Delaware will, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf; (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders; (iii) any action asserting a claim against us, any director or our officers or employees arising pursuant to any provision of the DGCL, our amended and restated certificate of incorporation (including any certificate of designations relating to any class or series of preferred stock) or our amended and restated bylaws; or (iv) any action asserting a claim against us, any director or our officers or employees that is governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to have notice of and to have consented to the provisions of our amended and restated bylaws described above. This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or any of our directors, officers, other employees or stockholders which may discourage lawsuits with respect to such claims. Alternatively, if a court were to find the choice of forum provision that will be contained in our amended and restated bylaws to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could materially adversely affect our business, financial condition and results of operations.
Non-U.S. Holders may be subject to U.S. federal income tax in connection with the disposition of shares of our common stock.
We believe that we currently are, and we expect that after the mergers we will continue to be, a USRPHC under the Code. As such, certain non-U.S. holders of our common stock may be subject to U.S. federal income tax on gain recognized upon the disposition of our shares. However, as long as our common stock is considered to be “regularly traded on an

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established securities market” (within the meaning of the Treasury regulations), only a non-U.S. holder that actually or constructively owns, or has owned, at any time during the five-year period preceding the disposition (or the non-U.S. holder’s holding period of the common stock, whichever of that period is shorter), more than 5% of our common stock will be taxable on gain realized on the disposition of our common stock as a result of our status as a USRPHC under the Code. If our common stock ceases to be regularly traded on an established securities market, then a non-U.S. holder (regardless of the percentage of common stock owned) would be subject to U.S. federal income tax on a taxable disposition of our common stock, and a 15% withholding tax would apply to the gross proceeds from such disposition.
Each Alpha stockholder that is a non-U.S. holder should carefully read the discussion under “Material United States Federal Income Tax Consequences of the Mergers” and should consult its own tax advisor regarding the implication of our USRPHC status.

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CAUTIONARY STATEMENT REGARDING FORWARD LOOKING STATEMENTS
This joint proxy statement and prospectus includes forward-looking statements. These forward-looking statements are based on Contura’s and Alpha’s expectations and beliefs concerning future events and involve risks and uncertainties that may cause actual results to differ materially from current expectations. These factors are difficult to predict accurately and may be beyond Contura’s and Alpha’s control. Forward-looking statements in this joint proxy statement and prospectus or elsewhere speak only as of the date made. New uncertainties and risks arise from time to time, and it is impossible for Contura or Alpha to predict these events or how they may affect Contura or Alpha. Except as required by law, neither Contura nor Alpha has any duty to, and does not intend to, update or revise the forward-looking statements in this joint proxy statement and prospectus or elsewhere after the date this joint proxy statement and prospectus is issued. In light of these risks and uncertainties, investors should keep in mind that results, events or developments discussed in any forward-looking statement made in this joint proxy statement and prospectus may not occur.
Uncertainties and risk factors that could affect Contura’s and/or Alpha’s future performance and cause results to differ from those referenced in, or implied by, forward-looking statements in this joint proxy statement and prospectus include, but are not limited to:
•
the parties’ ability to meet expectations regarding the timing, completion and accounting and tax treatments of the transaction;
•
the parties’ ability to consummate the transaction or satisfy the conditions to the completion of the transaction, including the receipt of stockholder approval and the receipt of regulatory approvals required for the transaction on the terms expected or on the anticipated schedule;
•
the failure of the proposed transaction to close for any other reason;
•
the possibility that any of the anticipated benefits of the proposed transaction will not be realized or will not be realized within the expected time period;
•
the risk that integration of Alpha’s operations with those of Contura will be materially delayed or will be more costly or difficult than expected;
•
the effect of the announcement of the transaction on customer relationships and operating results (including, without limitation, difficulties in maintaining relationships with employees or customers);
•
dilution caused by Contura’s issuance of additional shares of its common stock in connection with the transaction;
•
the possibility that the mergers may be more expensive to complete than anticipated, including as a result of unexpected factors or events;
•
any substantial or extended decline in coal pricing, demand and other factors beyond the parties’ control;
•
hazards and operating risks associated with coal mining and the dependence of coal mining upon many factors and conditions beyond the parties’ control;
•
significant competition, as well as changes in foreign markets or economics;
•
utilities switching to alternative energy sources such as natural gas, renewables and coal from basins where parties do not operate;
•
reductions or increases in customer coal inventories and the timing of those changes;
•
production capabilities and costs;
•
ability to develop or acquire coal reserves in an economically feasible manner;
•
geologic, equipment, site access and operational risks and new technologies related to mining;

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•
relationships with, and other conditions affecting, customers, including the inability to collect payments from customers if their creditworthiness declines;
•
changes in, renewal or acquisition of, terms of and performance of customers under coal supply arrangements and the refusal by customers to receive coal under agreed contract terms;
•
ability to obtain, maintain or renew any necessary permits or rights, and ability to mine properties due to defects in title on leasehold interests;
•
attracting and retaining key personnel and other employee workforce factors, such as labor relations;
•
funding for and changes in employee benefit obligations and workers’ compensation benefits;
•
litigation, including claims not yet asserted;
•
cybersecurity attacks or failures, threats to physical security, extreme weather conditions or other natural disasters;
•
climate change concerns and operations’ impact on the environment;
•
reclamation and mine closure obligations;
•
assumptions concerning economically recoverable coal reserve estimates;
•
ability to negotiate new union wage agreements on terms acceptable to the parties, increased unionization of the parties’ workforce in the future, and any strikes by the parties’ workforce;
•
disruptions in delivery or changes in pricing from third-party vendors of key equipment, components and materials that are necessary for operations, such as diesel fuel, steel products, explosives and tires;
•
inflationary pressures on supplies and labor and significant or rapid increases in commodity prices;
•
railroad, barge, truck and other transportation availability, performance and costs;
•
disruption in third-party coal supplies;
•
the consummation of financing or refinancing transactions, acquisitions or dispositions and the related effects on the parties’ business and financial position;
•
indebtedness and potential future indebtedness;
•
ability to generate sufficient cash or obtain financing to fund business operations;
•
ability to obtain or renew surety bonds on acceptable terms or maintain current bonding status; and
•
the impact of current or future environmental, health and safety, transportation, labor and other laws, regulations, agency actions and court decisions on the parties, including those directly affecting our coal mining and production, and those affecting our customers’ coal usage, including potential climate change initiatives;
•
successful implementation of business strategies;
•
liquidity, results of operations and financial condition; and
•
the diversion of management time on transaction related issues.
Additional risks, uncertainties and other factors include those discussed under the heading “Risk Factors.” You are cautioned not to place undue reliance on these forward‑looking statements, which speak only as of the date of this joint proxy statement and prospectus. Neither Contura nor Alpha undertakes, and each of them expressly disclaims, any duty to update any forward‑looking statement whether as a result of new information, future events or otherwise, except as required by law.

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ANR SPECIAL MEETING
This section contains information from ANR for ANR stockholders about the special meeting of ANR stockholders that ANR has called to consider and approve the ANR merger proposal, as discussed further below. ANR is mailing this joint proxy statement and prospectus to ANR stockholders on or about [●], 2018. Together with this joint proxy statement and prospectus, ANR is also sending to ANR stockholders a notice of the ANR special meeting and a form of proxy card that ANR’s board of directors is soliciting for use at the special meeting of ANR stockholders and at any adjournments of the meeting.
Date, Time and Place
The special meeting of ANR stockholders will be held at [●] on [●], 2018 at [●] [a.m.][p.m.] local time.
Matters to Be Considered
At the ANR special meeting, ANR stockholders as of the ANR record date will be asked to consider and vote on the following matters:
•
adoption of the ANR merger proposal;
•
approval of the ANR adjournment proposal; and
•
transaction of such other business as may properly come before the ANR special meeting and any adjournments or postponements thereof.
ANR stockholders are being asked to vote on the ANR merger proposal in order to satisfy the requirements of Section 251 of the DGCL and a condition to the mergers contained in the merger agreement.
Recommendation of ANR’s Board of Directors
ANR’s board of directors unanimously recommends that holders of ANR common stock vote “ FOR ” the ANR merger proposal and “ FOR ” the ANR adjournment proposal (if necessary or appropriate).
ANR Record Date and Quorum
ANR Record Date
ANR’s board of directors has fixed the close of business on [●], 2018 as the record date for determining the ANR stockholders entitled to receive notice of and to vote at the ANR special meeting. Each share of Class C-1 common stock held of record at the close of business on the ANR record date entitles the holder thereof to one vote on each matter considered and voted on at the ANR special meeting. Each share of Class C-2 common stock held of record at the close of business on the ANR record date entitles the holder thereof to 1.187 votes on each matter considered and voted on at the ANR special meeting. As of the ANR record date, [●] shares of Class C-1 common stock were issued and outstanding and held by approximately [●] record holders, and 4,223,400 shares of Class C-2 common stock were issued and outstanding, all of which are held by Holdings. Pursuant to the terms of the merger agreement, Holdings agreed to vote all such shares of Class C-2 common stock in favor of the ANR merger proposal if the Holdings merger proposal is approved at the Holdings special meeting. Such shares of Class C-2 common stock held by Holdings, in the aggregate, constitute 23.96% of the voting power of the outstanding shares of ANR common stock.
If you hold shares of ANR common stock that are registered in your name through ANR’s transfer agent, Computershare Trust Company, N.A., as of the ANR record date, you are the stockholder of record with respect to those shares. If you hold shares of ANR common stock indirectly through a broker, you are considered a beneficial owner of those shares but are not the stockholder of record. ANR sent copies of this joint proxy statement and prospectus directly to all ANR stockholders of record. If you are a beneficial owner whose shares are held in street name, these materials were sent to you by the broker through which you hold your shares. As the beneficial owner, you may direct your broker how to vote your shares at the ANR special meeting, and the broker is obligated to provide you with a voting instruction form for you to use for this purpose so a

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broker non-vote occurs when a broker holding shares for a beneficial owner does not receive voting instructions from the beneficial owner.
Quorum Requirements
A quorum is required to transact business at the ANR special meeting. The holders of a majority of the voting power of shares of ANR common stock on the ANR record date, present in person or represented by proxy and entitled to vote, will constitute a quorum for the transaction of business at the ANR special meeting. Abstentions and “broker non-votes” are treated as present for quorum purposes.
Vote Required; Treatment of Abstentions and Failure to Vote
ANR Merger Proposal
Approval of the ANR merger proposal requires approval by ANR stockholders holding a majority of the voting power of the outstanding shares of ANR common stock as of the ANR record date. As a result, if an ANR stockholder marks “ ABSTAIN ” with respect to the ANR merger proposal or fails to either submit a proxy card or vote in person at the ANR special meeting with respect to the ANR merger proposal, based on applicable voting standards, it will have the same effect as a vote “ AGAINST ” the ANR merger proposal. If an ANR stockholder holds its shares in street name and fails to instruct the stockholder’s broker with respect to the ANR merger proposal, the broker will not have discretionary authority to vote such ANR stockholder’s shares with respect to that proposal, which will also have the same practical effect as a vote “ AGAINST ” the ANR merger proposal.
In order to consummate the transactions contemplated by the merger agreement, including the mergers, the ANR merger and the Holdings merger must both be approved by applicable stockholders. If the ANR merger is not approved by ANR’s stockholders or if the Holdings merger is not approved by Holdings’ stockholders, then none of the ANR merger, the Holdings merger or the other transactions contemplated by the merger agreement will be consummated, and Alpha will remain a standalone company.
ANR Adjournment Proposal
Approval of the ANR adjournment proposal requires the affirmative vote of the ANR stockholders holding a majority of the voting power as of the ANR record date that is present in person or represented by proxy at the ANR special meeting and entitled to vote on the ANR adjournment proposal. If an ANR stockholder marks “ ABSTAIN ” with respect to the ANR adjournment proposal, it will be counted for purposes of determining whether there is a quorum and will have the same effect as a vote “ AGAINST ” the ANR adjournment proposal. If an ANR stockholder fails to vote in person or by proxy or holds its shares in street name and fails to instruct the stockholder’s broker with respect to the ANR adjournment proposal, it will have no effect on the ANR adjournment proposal.
Shares Held by Directors and Officers
As of the ANR record date, directors and officers of ANR and their affiliates beneficially owned and were entitled to vote an aggregate of [●] shares of Class C-1 common stock, representing approximately [●]% of the voting power of the outstanding shares of ANR common stock on that date. ANR currently expects that its directors and executive officers will vote their shares in favor of the ANR merger proposal and the ANR adjournment proposal (if necessary or appropriate), although none of them has entered into any agreements (including any voting agreements) obligating them to do so.
Holdings is the record holder of 4,223,400 shares of Class C-2 common stock, each of which is entitled to vote on the ANR merger proposal. Pursuant to the terms of the merger agreement, Holdings has agreed to vote all such shares of Class C-2 common stock in favor of the ANR merger proposal if the Holdings merger proposal is approved at the Holdings special meeting. Such shares of Class C-2 common stock held by Holdings, in the aggregate, constitute 23.96% of the voting power of the outstanding shares of ANR common stock.

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Solicitation of Proxies; Payment of Solicitation Expenses
Proxies are being solicited by ANR’s board of directors from ANR stockholders. Shares of ANR common stock represented by properly executed proxies, and that have not been revoked, will be voted in accordance with the instructions indicated on the proxies. If no instructions are indicated, such proxies will be voted “ FOR ” approval of the ANR merger proposal and “ FOR ” the ANR adjournment proposal (if necessary or appropriate), and in the discretion of the individuals named as proxies as to any other matter that may come before the ANR special meeting, which will be voted by the named proxies in accordance with their best judgment. If you hold outstanding shares of both Holdings common stock and ANR common stock, you will receive separate proxies for each of Holdings and ANR.
Pursuant to the terms of the Merger Agreement, each of ANR and Holdings will, at its own expense, mail (or cause to be mailed) this joint proxy statement and prospectus to its stockholders, and, except for expenses associated with mailing this joint proxy statement and prospectus, each of ANR, Holdings and Contura has agreed to pay for the expenses incurred by it in connection with this joint proxy statement and prospectus, including all listing, filing or registration fees, including fees paid for filing the registration statement of which this joint proxy statement and prospectus is a part with the SEC and any other fees paid for filings with governmental authorities. In addition to the solicitation of proxies by mail, solicitation may be made by certain directors, officers or employees of ANR and Holdings or their respective affiliates telephonically, electronically or by other means of communication. Directors, officers and employees will receive no additional compensation for such solicitation. ANR and Holdings will reimburse brokers for costs incurred by them in mailing proxy materials to beneficial owners in accordance with applicable rules. [In addition, ANR and Holdings have engaged [●] to assist in the solicitation of proxies for the ANR special meeting and the Holdings special meeting. ANR and Holdings estimate that the aggregate fee for such services will be approximately $[●].]
Voting Your Shares
ANR stockholders may vote in person or by proxy at the ANR special meeting. If you hold your shares of ANR common stock in your name as a stockholder of record, you may cast your vote in one of four ways:
•
By Internet . The web address for Internet voting can be found on the enclosed proxy card. Internet voting is available 24 hours a day. To be valid, your vote by Internet must be received by the deadline specified on the proxy card.
•
By Telephone . The telephone number for telephone voting can be found on the enclosed proxy card and is available 24 hours a day. To be valid, your vote by telephone must be received by the deadline specified on the proxy card.
•
By Mail . Mark the enclosed proxy card, sign and date it, and return it in the postage prepaid envelope provided. To be valid, your vote by mail must be received by the deadline specified on the proxy card.
•
At the ANR Special Meeting . You can vote your shares in person at the ANR special meeting. You must present an acceptable form of identification (such as a valid driver’s license) in order to enter the ANR special meeting.
If you hold your shares in street name, see “ANR Special Meeting—Shares Held in Street Name” below.
If you hold outstanding shares of both Holdings Common Stock and ANR Common Stock, you will receive separate proxies for each of Holdings and ANR. You should complete, sign and return each proxy you receive or follow the internet instructions on each card.
YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES OF ANR COMMON STOCK YOU OWN. Accordingly, each ANR stockholder should sign, date and return the enclosed proxy card, or vote via the Internet or by telephone, whether or not the ANR stockholder plans to attend the ANR special meeting.
Shares Held in Street Name
If you hold your shares in street name, you may vote by following your broker’s instructions or, in order to vote in person at the ANR special meeting, you must bring (i) an acceptable form of identification, such as a driver’s license, (ii) a

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“legal proxy” form from the broker and (iii) an account statement or other acceptable evidence of ownership of ANR common stock as of the close of business on the ANR record date.
Revocability of Proxies and Changes to ANR Stockholder’s Vote
If you have submitted a proxy and would like to revoke it, you may revoke your proxy or change your vote at any time before your shares are voted at the ANR special meeting by timely:
•
resubmitting your proxy on a later date via the Internet or by telephone and following appropriate instructions;
•
executing and mailing a proxy card that is dated and received on a later date (which must be received no later than [●], 2018);
•
notifying the Secretary of ANR in writing, at 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620, before the ANR special meeting that you have revoked your proxy (which notification must be received by the close of business on [●], 2018); or
•
voting in person at the ANR special meeting (but attendance at the ANR special meeting will not by itself revoke a proxy).
If your shares are held in street name, you should contact your broker to change your vote.
Attending the ANR Special Meeting
All ANR stockholders of record at the ANR record date are invited to attend the ANR special meeting. All stockholders must bring an acceptable form of identification, such as a valid driver’s license, in order to attend the ANR special meeting. If you hold shares in street name and would like to attend the ANR special meeting, you will also need to bring (i) a “legal proxy” form from the broker and (ii) an account statement or other acceptable evidence showing that you were the beneficial owner of ANR common stock on the ANR record date.

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HOLDINGS SPECIAL MEETING
This section contains information from Holdings for Holdings stockholders about the special meeting of Holdings stockholders that Holdings has called to consider and approve the Holdings merger proposal, as discussed further below. Holdings is mailing this joint proxy statement and prospectus to Holdings stockholders on or about [●], 2018. Together with this joint proxy statement and prospectus, Holdings is also sending to Holdings stockholders a notice of the Holdings special meeting and a form of proxy card that Holdings’ board of directors is soliciting for use at the special meeting of Holdings stockholders and at any adjournments of the meeting.
Date, Time and Place
The special meeting of Holdings stockholders will be held at [●] on [●], 2018 at [●] [a.m.][p.m.] local time.
Matters to Be Considered
At the Holdings special meeting, Holdings stockholders as of the Holdings record date will be asked to consider and vote on the following matters:
•
adoption of the Holdings merger proposal;
•
approval of the Holdings adjournment proposal; and
•
transaction of such other business as may properly come before the Holdings special meeting and any adjournments or postponements thereof.
Holdings stockholders are being asked to vote on the Holdings merger proposal in order to satisfy the requirements of Section 251 of the DGCL and a condition to the mergers contained in the merger agreement.
Recommendation of Holdings’ Board of Directors
Holdings’ board of directors unanimously recommends that holders of Holdings common stock vote “ FOR ” the Holdings merger proposal and “ FOR ” the Holdings adjournment proposal (if necessary or appropriate).
Holdings Record Date and Quorum
Holdings Record Date
Holdings’ board of directors has fixed the close of business on [●], 2018 as the record date for determining the Holdings stockholders entitled to receive notice of and to vote at the Holdings special meeting. Each share of Holdings common stock held of record at the close of business on the Holdings record date entitles the holder thereof to one vote on each matter considered and voted on at the Holdings special meeting. As of the Holdings record date, [●] shares of Holdings common stock were issued and outstanding and held by approximately [●] record holders.
If you hold shares of Holdings common stock that are registered in your name through Holdings’ transfer agent, Computershare Trust Company, N.A., as of the Holdings record date, you are the stockholder of record with respect to those shares. If you hold shares of Holdings common stock indirectly through a broker, you are considered a beneficial owner of those shares but are not the stockholder of record. Holdings sent copies of this joint proxy statement and prospectus directly to all Holdings stockholders of record. If you are a beneficial owner whose shares are held in street name, these materials were sent to you by the broker through which you hold your shares. As the beneficial owner, you may direct your broker how to vote your shares at the Holdings special meeting, and the broker is obligated to provide you with a voting instruction form for you to use for this purpose so a broker non-vote occurs when a broker holding shares for a beneficial owner does not receive voting instructions from the beneficial owner.

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Quorum Requirements
A quorum is required to transact business at the Holdings special meeting. The holders of a majority of the outstanding shares of Holdings common stock on the Holdings record date, present in person or represented by proxy and entitled to vote, will constitute a quorum for the transaction of business at the Holdings special meeting. Abstentions and broker non-votes are treated as present for quorum purposes.
Vote Required; Treatment of Abstentions and Failure to Vote
Holdings Merger Proposal
Approval of the Holdings merger proposal requires approval by Holdings stockholders holding a majority of the outstanding shares of Holdings common stock as of the Holdings record date. As a result, if a Holdings stockholder marks “ ABSTAIN ” with respect to the Holdings merger proposal or fails to either submit a proxy card or vote in person at the Holdings special meeting with respect to the Holdings merger proposal, based on applicable voting standards, it will have the same effect as a vote “ AGAINST ” the Holdings merger proposal. If a Holdings stockholder holds its shares in street name and fails to instruct the stockholder’s broker with respect to the Holdings merger proposal, the broker will not have discretionary authority to vote such Holdings stockholder’s shares with respect to that proposal, which will also have the same practical effect as a vote “ AGAINST ” the Holdings merger proposal.
In order to consummate the transactions contemplated by the merger agreement, including the mergers, the ANR merger and the Holdings merger must both be approved by applicable stockholders. If the ANR merger is not approved by ANR’s stockholders or if the Holdings merger is not approved by Holdings’ stockholders, then none of the ANR merger, the Holdings merger or the other transactions contemplated by the merger agreement will be consummated, and Alpha will remain a standalone company.
Holdings Adjournment Proposal
Approval of the Holdings adjournment proposal requires the affirmative vote of the holders of a majority of the total Holdings common stock as of the Holdings record date that is present in person or represented by proxy at the Holdings special meeting and entitled to vote on the Holdings adjournment proposal. If a Holdings stockholder marks “ ABSTAIN ” with respect to the Holdings adjournment proposal, it will be counted for purposes of determining whether there is a quorum and will have the same effect as a vote “ AGAINST ” the Holdings adjournment proposal. If a Holdings stockholder fails to vote in person or by proxy or holds its shares in street name and fails to instruct the stockholder’s broker with respect to the Holdings adjournment proposal, it will have no effect on the Holdings adjournment proposal.
Shares Held by Directors and Officers
As of the Holdings record date, directors and officers of Holdings and their affiliates beneficially owned and were entitled to vote an aggregate of [●] shares of Holdings common stock, representing approximately [●]% of the voting power of the outstanding shares of Holdings common stock on that date. Holdings currently expects that its directors and executive officers will vote their shares in favor of the Holdings merger proposal and the Holdings adjournment proposal (if necessary or appropriate), although none of them has entered into any agreements (including any voting agreements) obligating them to do so.
Solicitation of Proxies; Payment of Solicitation Expenses
Proxies are being solicited by Holdings’ board of directors from Holdings stockholders. Shares of Holdings common stock represented by properly executed proxies, and that have not been revoked, will be voted in accordance with the instructions indicated on the proxies. If no instructions are indicated, such proxies will be voted “ FOR ” approval of the Holdings merger proposal and “ FOR ” the Holdings adjournment proposal (if necessary or appropriate), and in the discretion of the individuals named as proxies as to any other matter that may come before the Holdings special meeting, which will be voted by the named proxies in accordance with their best judgment. If you hold outstanding shares of both Holdings common stock and ANR common stock, you will receive separate proxies for each of Holdings and ANR.

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Pursuant to the terms of the Merger Agreement, each of ANR and Holdings will, at its own expense, mail (or cause to be mailed) this joint proxy statement and prospectus to its stockholders, and, except for expenses associated with mailing this joint proxy statement and prospectus, each of ANR, Holdings and Contura has agreed to pay for the expenses incurred by it in connection with this joint proxy statement and prospectus, including all listing, filing or registration fees, including fees paid for filing the registration statement of which this joint proxy statement and prospectus is a part with the SEC and any other fees paid for filings with governmental authorities. In addition to the solicitation of proxies by mail, solicitation may be made by certain directors or officers of Holdings or its affiliates telephonically, electronically or by other means of communication. Directors and officers will receive no additional compensation for such solicitation. Holdings will reimburse brokers for costs incurred by them in mailing proxy materials to beneficial owners in accordance with applicable rules. [In addition, Holdings and ANR have engaged [●] to assist in the solicitation of proxies for the Holdings special meeting and the ANR special meeting. Holdings and ANR estimate that the aggregate fee for such services will be approximately $[●].]
Voting Your Shares
Holdings stockholders may vote in person or by proxy at the Holdings special meeting. If you hold your shares of Holdings common stock in your name as a stockholder of record, you may cast your vote in one of four ways:
•
By Internet . The web address for Internet voting can be found on the enclosed proxy card. Internet voting is available 24 hours a day. To be valid, your vote by Internet must be received by the deadline specified on the proxy card.
•
By Telephone . The telephone number for telephone voting can be found on the enclosed proxy card and is available 24 hours a day. To be valid, your vote by telephone must be received by the deadline specified on the proxy card.
•
By Mail . Mark the enclosed proxy card, sign and date it, and return it in the postage prepaid envelope provided. To be valid, your vote by mail must be received by the deadline specified on the proxy card.
•
At the Holdings Special Meeting . You can vote your shares in person at the Holdings special meeting. You must present an acceptable form of identification (such as a valid driver’s license) in order to enter the Holdings special meeting.
If you hold your shares in street name, see “Holdings Special Meeting—Shares Held in Street Name” below.
If you hold outstanding shares of both Holdings Common Stock and ANR Common Stock, you will receive separate proxies for each of Holdings and ANR. You should complete, sign and return each proxy you receive or follow the internet instructions on each card.
YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES OF HOLDINGS COMMON STOCK YOU OWN. Accordingly, each Holdings stockholder should sign, date and return the enclosed proxy card, or vote via the Internet or by telephone, whether or not the Holdings stockholder plans to attend the Holdings special meeting.
Shares Held in Street Name
If you hold your shares in street name, you may vote by following your broker’s instructions or, in order to vote in person at the Holdings special meeting, you must bring (i) an acceptable form of identification, such as a driver’s license, (ii) a “legal proxy” form from the broker, and (iii) an account statement or other acceptable evidence of ownership of Holdings common stock as of the close of business on the Holdings record date.
Revocability of Proxies and Changes to Holdings Stockholder’s Vote
If you have submitted a proxy and would like to revoke it, you may revoke your proxy or change your vote at any time before your shares are voted at the Holdings special meeting by timely:
•
resubmitting your proxy on a later date via the Internet or by telephone and following appropriate instructions;

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•
executing and mailing a proxy card that is dated and received on a later date (which must be received no later than [●], 2018);
•
notifying the Secretary of Holdings in writing, at 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620, before the Holdings special meeting that you have revoked your proxy (which notification must be received by the close of business on [●], 2018); or
•
voting in person at the Holdings special meeting (but attendance at the Holdings special meeting will not by itself revoke a proxy).
If your shares are held in street name, you should contact your broker to change your vote.
Attending the Holdings Special Meeting
All Holdings stockholders of record at the Holdings record date are invited to attend the Holdings special meeting. All stockholders must bring an acceptable form of identification, such as a valid driver’s license, in order to attend the Holdings special meeting. If you hold shares in street name and would like to attend the Holdings special meeting, you will also need to bring (i) a “legal proxy” form from the broker and (ii) an account statement or other acceptable evidence showing that you were the beneficial owner of Holdings common stock on the Holdings record date.

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PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT
Pursuant to Section 251 of the DGCL and in order to fulfill a condition to the consummation of the mergers contained in the merger agreement, (i) ANR stockholders are being asked to adopt the merger agreement as it relates to the ANR merger, and (ii) Holdings stockholders are being asked to adopt the merger agreement as it relates to the Holdings merger.
For a summary of the merger agreement and the mergers, including the background of the mergers, Contura’s reasons for the mergers, Alpha’s reasons for the mergers, the opinions of Contura’s, ANR’s, and Holdings’ financial advisors and related matters, see “The Mergers” beginning on page 78 and “The Merger Agreement” beginning on page 146.
Approval of the ANR merger proposal requires approval by ANR stockholders holding a majority of the voting power of the outstanding shares of ANR common stock as of the ANR record date, and approval of the Holdings merger proposal requires approval by Holdings stockholders holding a majority of the outstanding shares of Holdings common stock as of the Holdings record date.
BOARD RECOMMENDATION
ANR’s board of directors unanimously recommends that ANR stockholders vote “FOR” the adoption of the ANR merger proposal.
Holdings’ board of directors unanimously recommends that Holdings stockholders vote “FOR” the adoption of the Holdings merger proposal.

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PROPOSAL 2: APPROVAL OF THE ADJOURNMENT OR POSTPONEMENT OF THE ANR SPECIAL MEETING OR THE HOLDINGS SPECIAL MEETING (AS APPLICABLE)
ANR
ANR stockholders are being asked to approve a proposal that will grant the ANR board authority to adjourn the ANR special meeting, if necessary or appropriate, including to permit the further solicitation of proxies in favor of the ANR merger proposal if there are not otherwise sufficient votes to approve the proposal.
If the ANR adjournment proposal is approved, the ANR special meeting could be adjourned to any date. If the ANR special meeting is adjourned, ANR stockholders who have already submitted their proxies will be able to revoke them at any time prior to their use. If it is necessary to adjourn the ANR special meeting, no notice of the adjourned ANR special meeting is required to be given to ANR stockholders so long as (i) the place, the date and time of the adjourned ANR special meeting is announced at the ANR special meeting and (ii) the adjourned ANR special meeting occurs within 30 calendar days of the original date for the ANR special meeting and ANR does not fix a new record date for the adjourned meeting.
Approval of the ANR adjournment proposal requires the affirmative vote of the holders of a majority of the voting power of shares of ANR common stock as of the ANR record date that is present in person or represented by proxy at the ANR special meeting and entitled to vote on the ANR adjournment proposal.
This vote is separate and apart from the vote to approve the ANR merger proposal. The approval of the ANR adjournment proposal is not a condition to consummation of the mergers.
Holdings
Holdings stockholders are being asked to approve a proposal that will grant the Holdings board of directors authority to adjourn the Holdings special meeting, if necessary or appropriate, including to permit the further solicitation of proxies in favor of the Holdings merger proposal if there are not otherwise sufficient votes to approve the proposal.
If the Holdings adjournment proposal is approved, the Holdings special meeting could be adjourned to any date. If the Holdings special meeting is adjourned, Holdings stockholders who have already submitted their proxies will be able to revoke them at any time prior to their use. If it is necessary to adjourn the Holdings special meeting, no notice of the adjourned Holdings special meeting is required to be given to Holdings stockholders so long as (i) the place, the date and time of the adjourned Holdings special meeting is announced at the Holdings special meeting and (ii) the adjourned Holdings special meeting occurs within 30 calendar days of the original date for the Holdings special meeting and Holdings does not fix a new record date for the adjourned meeting.
Approval of the Holdings adjournment proposal requires the affirmative vote of the holders of a majority of the total Holdings common stock as of the Holdings record date that is present in person or represented by proxy and entitled to vote at the Holdings special meeting.
This vote is separate and apart from the vote to approve the Holdings merger proposal. The approval of the Holdings adjournment proposal is not a condition to consummation of the mergers.
BOARD RECOMMENDATION
ANR’s board of directors unanimously recommends that ANR stockholders vote “FOR” the ANR adjournment proposal.
Holdings’ board of directors unanimously recommends that Holdings stockholders vote “FOR” the Holdings adjournment proposal.


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THE MERGERS
The following is a description of the material aspects of the mergers. While we believe that the following description covers the material terms of the mergers, the description may not contain all of the information that is important to you. We encourage you to read carefully this entire joint proxy statement and prospectus, including the merger agreement attached to this joint proxy statement and prospectus as  Annex A , for a more complete understanding of the mergers.
Overview
The Contura board of directors, the Holdings board of directors and the ANR board of directors have each approved the merger agreement. Pursuant to the merger agreement, a wholly owned direct subsidiary of Contura will merge with Holdings in the Holdings merger, with Holdings continuing as the surviving corporation, and a wholly owned indirect subsidiary of Contura will merge with ANR, with ANR continuing as the surviving corporation. As a result of the mergers, Holdings will become a direct wholly owned subsidiary of Contura and ANR will become a direct wholly owned subsidiary of Holdings and an indirect wholly owned subsidiary of Contura. We refer to Contura and its subsidiaries as “the combined company” whenever we make reference to it as of the effective times of the mergers or thereafter.
If the mergers are completed, each share of Holdings common stock and each share of Class C-1 common stock, in each case outstanding immediately prior to the effective times of the mergers (other than shares held directly by Holdings, ANR or Contura and shares held by any holder of Holdings common stock or Class C-1 common stock with respect to which appraisal rights have been properly demanded and not properly withdrawn), will be converted into the right to receive 0.4071 fully paid and nonassessable shares of Contura common stock. All shares of Class C-2 common stock and all shares of Holdings common stock and Class C-1 common stock held by Holdings, ANR or Contura will be canceled for no consideration in connection with the mergers. No fraction of a share of Contura common stock will be issued in the mergers and instead holders of Holdings common stock or Class C-1 common stock who would otherwise be entitled to receive a fraction of a share of Contura common stock will receive an amount in cash, as further described under “The Merger Agreement—Fractional Shares”.
Subject to the terms of the merger agreement, it is anticipated that the size of the combined company’s board of directors will initially be set at nine members, and will initially consist of the five current directors serving on Contura’s board of directors and four designees from the Holdings board of directors.
The merger agreement also contemplates that prior to the effectiveness of the mergers, the certificate of incorporation of Contura will be amended and restated to, among other things, increase the number of authorized shares of Contura common stock to 50,000,000, which is necessary to provide Contura with sufficient authorized shares to issue as consideration in the mergers. This amendment is referred to as the “Contura charter amendment.” Contura stockholder approval of the Contura charter amendment has already been obtained.
Background of the Mergers
From time to time following the emergence of Alpha from Chapter 11 proceedings in July 2016, the boards of directors of ANR and Holdings (the “Alpha Boards”) have reviewed and evaluated potential strategic opportunities to enhance stockholder value and provide liquidity to their stockholders, many of whom are former creditors of Alpha Natural Resources, Inc. (“Predecessor Alpha”), and received shares of capital stock of Alpha pursuant to the Second Amended Joint Plan of Reorganization, as modified, of Predecessor Alpha and substantially all of its subsidiaries.
On a regular basis the board of directors of Contura (the “Contura Board”) reviews and evaluates, with management of Contura, Contura’s strategic direction and business objectives, including strategic opportunities that might be available to enhance shareholder value such as possible acquisitions, divestitures and business combination transactions.
On January 6, 2017, ANR engaged Moelis & Co. LLC (“Moelis”) to explore and review strategic opportunities. From time to time thereafter, as part of this process, Mr. Stetson and Moelis engaged in various informal conversations with our industry participants regarding various matters, including as to possible strategic alternatives, and Alpha management, with the assistance of Moelis, kept the Alpha Boards apprised as to developments.

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On July 19, 2017, ANR entered into an asset purchase agreement with Lexington Coal Company (“LCC”) pursuant to which ANR agreed to sell to LCC idle and non-active real property and personal property assets located in Kentucky, Illinois, Tennessee and West Virginia. In addition, the transaction with LCC (the “Lexington Transaction”) eliminated approximately $250 million of self-bonding obligations of ANR, reduced ANR’s reclamation liabilities, and eliminated restrictions and limitations, including that the sale of certain complexes would be subject to approval by the West Virginia Department of Environmental Protection and a prohibition on making dividends or other distributions to stockholders, that were perceived to limit Alpha’s ability to enter into mergers or acquisitions. It was the view of the Alpha Boards and Alpha’s management that the sale of idle and non-active assets, the elimination of substantial self-bonding assets, and the removal of the restrictions described above would potentially position Alpha for a transaction that would provide value enhancement and liquidity for Alpha’s stockholders.
From August 3-5, 2017, David Stetson, the Chief Executive Officer of Holdings and ANR and the chairman of each of the Alpha Boards attended a meeting of the West Virginia Coal Association in White Sulphur Springs, West Virginia, which was attended by a number of coal industry executives. At the conference, Mr. Stetson received informal interest from a number of executives of other coal companies in attendance regarding potential merger and acquisition (“M&A”) opportunities involving Alpha, assuming the sale of assets to LCC closed.
On August 10 and 11, 2017, Mr. Stetson and Samuel Hopkins, Senior Vice President and Chief Financial Officer of Holdings and ANR, attended the Seaport Conference in St. Louis, Missouri. At the conference, Mr. Stetson and Mr. Hopkins met with the chief executive officer of a coal producer (“Party A”). Party A’s chief executive officer expressed to Mr. Stetson and Mr. Hopkins an initial interest in exploring potential M&A opportunities involving Alpha.
On August 21, 2017, Mr. Stetson informed the chief executive officer of Party A that Alpha was interested in a mutual exchange of introductory financial information to evaluate whether further discussions regarding potential M&A opportunities with Party A would be warranted.
On August 29, 2017, at a special meeting of the ANR Board, Mr. Stetson provided an update to the ANR Board regarding his initial conversations with Party A. At the special meeting, the ANR Board authorized the management team of ANR to, subject to Party A’s execution of a confidentiality agreement with respect to Alpha’s information, exchange information with Party A and to meet with Party A’s management team to conduct an initial due diligence review of Party A’s operations.
On September 13, 2017, ANR and Party A entered into a mutual confidentiality agreement.
On September 28, 2017, Mr. Stetson, Mr. Hopkins, Jason Whitehead, Senior Vice President and Chief Operating Officer of Holdings and ANR, William Davison, Senior Vice President - Thermal Coal Sales of ANR, and Daniel Horn, Senior Vice President - Met Coal Sales of ANR, attended a meeting with the chief operating officer and other management of Party A for the purpose of discussing the operations of Alpha and Party A. Alpha’s management teams thereafter reported to the ANR Board regarding their discussions with Party A. Although the ANR Board believed a transaction with Party A would be accretive, they also determined that a potential transaction with Party A was unlikely in the near future due to the view of Party A’s chief executive officer, who had previously made public statements concerning strong reservations about acquiring companies with legacy liabilities.
On October 23, 2017, the LCC transaction closed.
In November 2017, the chief operating officer of Party A contacted Mr. Stetson and indicated that Party A was not interested in further evaluating a transaction with Alpha.
On November 6, 2017, Kevin Crutchfield, the Chief Executive Officer of Contura, contacted Mr. Stetson and proposed that Alpha and Contura enter into a confidentiality agreement in order to have exploratory discussions and conduct due diligence regarding a potential transaction between Alpha and Contura. Alpha and Contura exchanged drafts of a confidentiality agreement.  
On November 6, 2017, a director of a coal producer and exporter (“Party B”) contacted a representative of Moelis and indicated that the director was aware that other participants in the coal industry had interest in various potential transactions

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with Alpha. The director of Party B indicated that Party B did not believe that a transaction with Alpha would be consistent with Party B’s operating strategy.
On November 12, 2017, Andrew McCallister, Senior Vice President and General Counsel of Alpha, telephoned Mark Manno, Chief Administrative and Legal Officer, General Counsel and Secretary of Contura, and advised that Alpha would not be proceeding with discussions with Contura at that point and would instead then focus on developing and implementing a strategy to reclassify and simplify Alpha’s capital structure.
On December 14, 2017, at a special meeting of the Alpha Boards, the management team of Alpha and the Alpha Boards reviewed recent discussions with Contura and Party A. Following a discussion among the Alpha Boards, members of Alpha management and representatives of Moelis, the management team and the Alpha Boards also reviewed a potential reclassification transaction, pursuant to which all classes of capital stock of ANR would be exchanged for shares of Class C-1 common stock or Class C-2 common stock of ANR, and all classes of capital stock of Holdings would be exchanged for shares of common stock of Holdings. The Alpha Boards approved the reclassification transaction, in part, due to the Alpha Boards’ belief that a streamlining of Alpha’s capital structures would make an M&A transaction or other liquidity event less complicated.
On December 20, 2017, Mr. Stetson contacted the chief executive officer of a coal mining and production business (“Party C”) and expressed interest in exploratory discussions regarding a potential transaction with Party C.
On January 1, 2018, Alpha and Party C entered into a mutual confidentiality agreement.
On January 4, 2018, Mr. Stetson and Mr. McCallister met with the chief executive officer and the chief financial officer of Party C to have initial exploratory discussions regarding a potential transaction and to discuss a potential timeline for due diligence. On January 22, 23 and 24, 2018, representatives of Alpha and Party C discussed the process for due diligence review of Party C and Alpha.
On January 25, 2018, Mr. Crutchfield contacted Mr. Stetson to reiterate Contura’s desire to explore a potential transaction with Alpha. Alpha had secured voting agreements with stockholders who held enough voting power to ensure passage of the reclassifications, and therefore determined it was not inappropriate to enter into discussions with Contura at that time.
On January 26, 2018, Mr. Crutchfield and Mr. Stetson held a lunch meeting during which they discussed Contura’s desire to explore a potential transaction with Alpha.
On January 29, 2018, Mr. Manno sent to Mr. McCallister a mutual confidentiality agreement executed by Contura. On January 30, 2018, Mr. McCallister provided to Mr. Manno a fully executed copy of the mutual confidentiality agreement.
On February 1, 2018 and February 2, 2018, Mr. Stetson attended the Coaltrans USA conference in Miami, Florida. At the conference, Mr. Stetson met with the chief executive officer of a coal producer (“Party D”). The chief executive officer of Party D expressed initial interest in exploring a potential transaction with Alpha.
On February 9, 2018, the Contura Board held a meeting and at that meeting the Contura Board discussed the potential transaction between Contura and Alpha. The Contura Board gave direction to Contura management regarding the transaction. On a regular basis thereafter during the course of the process with Alpha, Mr. Crutchfield conferred with the members of the Contura Board to keep them informed, and to seek their views, regarding the possible transaction.
On February 15, 2018, Alpha’s reclassification transaction was approved by Alpha’s stockholders at the annual meeting of Alpha’s stockholders, and closed promptly thereafter.
On February 15, 2018, at the annual meeting of the Alpha Boards, the Alpha Boards received an update from Alpha’s management team regarding recent discussions with Contura, Party A, Party C and Party D. The Alpha Boards directed Alpha’s management to continue discussions with Contura, Party C and Party D and to share information with, and receive information from, each party to assist in the evaluation of potential transactions.
Following the reclassification transaction, Alpha shared financial and operational due diligence information with Contura and Party C.

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On February 22, 2018, representatives of Moelis and Ducera Securities LLC (“Ducera”) Contura’s financial advisor, met in New York City to discuss the process for continuing due diligence and the evaluation of a potential transaction between Alpha and Contura. The Contura Board gave direction to Contura management regarding the transaction. Ducera had previously been engaged by Contura to provide financial advisory and investment banking services from time to time pursuant to a monthly retainer arrangement.
On February 26, 2018, Mr. Stetson, Mr. Hopkins, Mr. Whitehead, Mr. McCallister, Mr. Davison, Mr. Horn and Judy Hill, the Senior Vice President and Chief Administrative Officer of Alpha, and representatives from Moelis met in Bristol, Tennessee with Mr. Crutchfield, Mr. Manno, Andy Eidson, Executive Vice President and Chief Financial Officer of Contura, J. Scott Kreutzer, Executive Vice President and Chief Operating Officer of Contura, Kevin Stanley, Executive Vice President and Chief Commercial Officer of Contura, and representatives of Ducera. At the meeting, the Alpha management team made a presentation to Contura and Ducera regarding Alpha’s business, including a high-level overview of Alpha’s financial performance, operations, legacy liabilities and tax information.
On March 1, 2018, the chief executive officer of Party D informed Mr. Stetson that Party D did not intend to pursue any transaction with Alpha in light of the different coal portfolios of Party D and Alpha, citing in particular Alpha’s exposure to Central Appalachian thermal coal.
On March 2, 2018, Mr. Stetson, Mr. Hopkins, Mr. McCallister, Mr. Whitehead, Mr. Horn and Mr. Davison and representatives from Moelis met in New York City with the management team of Party C and representatives of Party C’s financial advisor. At the meeting, the Alpha management team made a presentation to Party C and its financial advisor regarding Alpha’s business, including a high-level overview of Alpha’s financial performance and operations.
On March 5, 2018, at a special meeting of the Alpha Boards, the Alpha Boards received an update from Alpha’s management team regarding recent discussions with Contura, Party C and Party D. The Alpha Boards authorized Alpha’s management team to continue discussions with Contura, but directed Alpha’s management team that any transaction with Contura should be as close as possible to a “merger of equals,” with proportionate representation of Alpha on the Contura board of directors. The Alpha Boards also expressed concern regarding the significant amount of debt on the balance sheet of Party C and the risk that a combined company with a highly leveraged balance sheet would struggle to return sufficient liquidity to Alpha’s stockholders. In addition, the Alpha Boards expressed concern that a refinancing of Party C’s debt, including a conversion of all of Party C’s second lien debt and a substantial portion of Party C’s first lien debt into equity, which the Alpha Board believed would be necessary in connection with a combination of Alpha and Party C, would be difficult to achieve and would introduce uncertainty into any transaction involving Party C and Alpha.
On March 7, 2018, Contura and Alpha amended the confidentiality agreement dated January 29, 2018 to permit the parties to discuss the possible transaction with their respective stockholders, subject to certain confidentiality restrictions. Thereafter, Contura entered into non-disclosure agreements with certain of its stockholders and from time to time thereafter during the course of the process with Alpha engaged in discussions with those stockholders regarding the transaction.
On March 13, 2018, Mr. Crutchfield informed Mr. Stetson on a preliminary basis of the terms Contura intended to propose for a transaction between Contura and Alpha. The preliminary terms provided for a combination of Alpha with Contura in which the Alpha stockholders would receive 41.5% of the equity of Contura and Alpha would appoint two directors to the Contura Board.
On March 16, 2018, members of the Alpha management team, representatives of Moelis, the Contura management team and representatives from Ducera participated in a teleconference to review and discuss the financial projections of Alpha and Contura.
On March 16, 2018, at a special meeting of the Alpha Boards, Alpha’s management team and Moelis presented to the Alpha Boards their view of the strategic options available to Alpha, which at that point consisted of (1) continuing as a stand-alone entity and preparing for an initial public offering in late 2018 or early 2019, (2) a merger with Party C, (3) a merger with Contura and (4) attempting to re-engage with Party D regarding a potential transaction. The Alpha Boards determined that consummating an M&A transaction in the current market would, in the Board’s opinion, capture significant value for Alpha’s stockholders, but that continuing as a stand-alone entity and planning for a future initial public offering, in the Board’s opinion, would introduce meaningful uncertainty and could result in a failure to capitalize on the strength of the current M&A and coal markets. The Alpha Boards also questioned whether Alpha would be able to reduce their exposure to

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Central Appalachian thermal coal in such a manner as to make a transaction with Party D possible in the near term. The Alpha Boards discussed the potential synergies that could be realized in a transaction with Party C, but again expressed concern regarding the absolute amount of debt and financial leverage of Party C, the extended path to liquidity for Alpha’s stockholders in such a transaction and the uncertainty that would introduce to the closing of a transaction. The Alpha Boards also discussed that Contura would seem to be able to consummate a transaction more quickly than the alternatives. The Alpha Boards directed Alpha’s management to continue discussions with Contura and Party C and to conduct its due diligence of both parties, including analysis of Contura’s financial projections.
On March 19, 2018, Mr. Stetson and Mr. Crutchfield met in-person to discuss a potential transaction between Contura and Alpha. Mr. Crutchfield indicated to Mr. Stetson that Contura intended to make a written offer for a merger between Contura and Alpha.
On March 19, 2018, each of Contura and Alpha provided mutual access to online data rooms for the purpose of facilitating additional due diligence.
On March 20, 2018, Contura delivered to Alpha a written offer for a stock-for-stock merger pursuant to which Alpha’s stockholders would receive 41.5% of the outstanding shares of common stock of Contura. As part of the offer, Contura indicated that it would become a listed company on the New York Stock Exchange and that Mr. Crutchfield would continue as Chief Executive Officer of Contura. Alpha would have the right to appoint two directors to a reconfigured seven-person Contura board of directors.
On March 22, 2018, Alpha entered into a confidentiality agreement with a controlling stockholder of an energy conglomerate (“Party E”).
On March 27, 2018, at a special meeting of the Alpha Boards, Moelis, Alpha’s management team and the Alpha Boards reviewed the offer from Contura. Representatives of Moelis also provided the Alpha Board with a preliminary financial analysis of the potential transaction with Contura. The representatives from Moelis indicated that the current valuation of Alpha would support a pro forma ownership of Contura by Alpha’s stockholders of at least 44.4%. The Alpha Boards determined that the pro forma ownership of Contura’s common stock by Alpha stockholders proposed by Contura was too low. The Alpha Boards further expressed their belief that a transaction with Contura should be as close as possible to a merger of equals. The Alpha Boards instructed the management team of Alpha to make a counteroffer to Contura such that Alpha’s stockholders would own 50% of the shares of common stock of Contura and that Alpha would be entitled to appoint one-half of the directors of Contura at the closing of any transaction. Mr. Stetson called Mr. Crutchfield later that day to communicate Alpha’s counteroffer.
On March 29, 2018, the Contura Board held a meeting and at that meeting the Contura Board discussed the potential transaction with Alpha. The Contura Board gave direction to Contura management regarding the potential transaction.
Later that day, Mr. Crutchfield called Mr. Stetson and proposed that Alpha’s stockholders would own 43% of Contura on a pro forma basis.
On March 29, 2018, the Alpha Boards held a special meeting following Contura’s updated offer. The Alpha Boards expressed their view that an offer of 43% pro forma ownership was insufficient. The Alpha Boards instructed Mr. Stetson to communicate to Mr. Crutchfield that Alpha would require an offer closer to 50% pro forma ownership and proportionate representation on the board of directors of Contura in order to proceed with further discussions with Contura.
The Alpha Boards then adjourned the special meeting, and Mr. Stetson contacted Mr. Crutchfield to communicate Alpha’s counterproposal. Mr. Crutchfield countered with an offer of 46.5% pro forma ownership to the Alpha stockholders and communicated to Mr. Stetson that Contura’s board of directors would not agree to an offer with a higher pro forma ownership percentage for Alpha’s stockholders.
The Alpha Boards then re-convened the special meeting, at which time Mr. Stetson provided an update on his conversation with Mr. Crutchfield. After reviewing the updated terms of the potential transaction, the Alpha Boards authorized Alpha to proceed to negotiate and document a transaction with Contura on the basis of 46.5% pro forma ownership for the Alpha Stockholders and the right of Alpha to appoint three directors on the Contura board of directors. However, the Alpha Boards directed Mr. Stetson to contact Mr. Crutchfield to counter with an offer of 47% pro forma

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ownership to ensure that Contura’s offer of 46.5% pro forma ownership was Contura’s best and final offer. Mr. Stetson communicated that counteroffer to Mr. Crutchfield. Mr. Crutchfield communicated to Mr. Stetson that 46.5% was Contura’s best and final offer and that Contura’s board of directors had authorized Mr. Crutchfield to agree to that Alpha would have the right to appoint three directors on the Contura board of directors.
During April 2018, members of Alpha management and representatives of Moelis and Katten Muchin Rosenman LLP (“Katten”), Alpha’s outside counsel, and members of Contura management and representatives of Ducera and Davis Polk & Wardwell LLP (“Davis Polk”), Contura’s outside legal counsel, conducted due diligence.
On April 3, 2018, representatives of Moelis (at the direction of ANR) and Party E participated in a teleconference to have an exploratory discussion regarding a potential transaction.
On April 4, 2018, Contura executed an engagement letter with Ducera to engage Ducera to act as its financial advisor in connection with the potential transaction with Alpha.
On April 6, 2018, Davis Polk delivered the initial draft of the merger agreement to Alpha and Katten.
On April 6, 2018, the Compensation Committee of the board of directors of ANR held a meeting at which it approved amendments to the KESP, primarily relating to the termination change in control factor for participants in pay grade 24 and to modify definitions of “good reason” and “target bonus” for plan purposes (the KESP, as so amended, is discussed under “The Mergers-Interests of Alpha’s Directors and Executive Officers in the Mergers-Key Employee Separation Plan”) and approved the making of certain equity awards to members of ANR management below the senior executive team. The Compensation Committee also discussed the proposed amendment to Mr. Stetson’s employment agreement with respect to severance related matters, including the potential repurchase of Class C-1 common stock held by Mr. Stetson and changes to his post-separation and severance benefits following the consummation of a transaction. During the remainder of April 2018, Alpha continued to negotiate the terms of those changes with Mr. Stetson.
On April 10, 2018, Mr. Stetson had an initial discussion with the chief executive officer of a coal producer (“Party F”) regarding Party F’s interest in a potential transaction with Alpha.
On April 10, 2018, Mr. Stetson had an initial discussion with the chief executive officer of a coal producer (“Party G”) regarding Party G’s interest in a potential transaction with Alpha.
On April 10, 2018, Katten and Davis Polk discussed certain terms of the draft merger agreement, including Contura’s request that all directors, officers and certain other stockholders of Alpha deliver voting agreements agreeing to vote in favor of the potential transaction with Contura, other than in the event of a change of recommendation by the Alpha Boards, in which case, no more than 35% of the outstanding shares of common stock of Alpha would be subject to the obligations under the voting agreements.
On April 11, 2018, the Alpha Boards held a special meeting and discussed the status of the negotiations with respect to the potential transaction with Contura. Representatives of Katten reviewed the key open issues in the merger agreement negotiations, including matters relating to the composition of Contura’s board of directors, certainty of closing, and deal protections and lock-ups. The Alpha Boards then discussed, together with Moelis and Katten, potential negotiating strategies to resolve the key open issues.
On April 12, 2018, Mr. Stetson had discussions with a representative of Party C regarding the need for Party C and its lenders to propose a viable plan to reduce Party C’s absolute debt and financial leverage, and, subsequent to that conversation, Mr. Stetson, Mr. Hopkins, Mr. Whitehead, Mr. Horn, Mr. McCallister and Mr. Davison and representatives of Party C met in New York City and by phone to discuss due diligence, the financial and operating performance for each of Party C and Alpha for the first quarter of 2018, and leverage and potential pro forma capital structures.
On April 12, 2018, Mr. Whitehead and Mr. Horn met with Mr. Kruetzer in Julian, West Virginia to discuss operational due diligence.
On April 13, 2018, acting at the direction of the Alpha Boards, Katten delivered a revised draft of the merger agreement to Davis Polk. The revised draft of the merger agreement included the following changes, which the Alpha Boards had directed Katten to include in such revised draft: (i) the right of Alpha to appoint three directors to a seven-person Contura

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board of directors or four directors to a nine-person Contura board of directors, (ii) the right of Alpha to terminate the merger agreement in order to enter into a definitive agreement with respect to a superior proposal, provided that Alpha pays the applicable break-up fee, (iii) deletion of the “force-the-vote” provision, (iv) deletion of Alpha’s obligation to reimburse Contura for expenses in the event that Alpha’s stockholders do not approve the transaction, (v) a reduction of the break-up fee payable by Alpha to $15 million from $22.5 million, (vi) the elimination of a condition to Contura’s obligation to close in the event that holders of 5% or more of Alpha’s outstanding shares exercise appraisal rights, (vii) the obligation of Contura to provide a gross-up to certain members of Alpha’s management for excise taxes arising under Section 280G of the Internal Revenue Code, (viii) a request for further clarification regarding which stockholders are expected to be bound by voting agreements, (ix) the right of Alpha to terminate the merger agreement in the event that Contura consummates a sale transaction or enters into a definitive agreement for a sale transaction, and (x) a “hell or high water” covenant relating to Contura’s obligation to obtain antitrust approvals.
On April 14, 2018, following discussions between Contura management and Davis Polk, Davis Polk delivered a revised draft of the merger agreement to Katten. On April 15, 2018, representatives of Davis Polk and Katten discussed the Davis Polk revisions to the merger agreement, which, among other things: (i) provided that the composition of the board of directors of Contura was subject to further discussion, (ii) provided that Alpha would not be permitted to terminate the merger agreement in the event of a superior proposal, (iii) re-inserted the force-the-vote provision, (iv) proposed a $19 million break-up fee in response to Alpha’s proposal of a $15 million break-up fee, (v) re-inserted an expense reimbursement provision with a $12 million cap, (vi) rejected Alpha’s proposal that Alpha may terminate the merger agreement in the event that Contura consummates a sale transaction or enters into a definitive agreement for a sale transaction, (vii) re-inserted the appraisal rights condition, (viii) eliminated the “hell or high water” covenant relating to Contura’s obligation to obtain antitrust approvals, (ix) provided clarification that Contura expected all directors, officers and 5% or greater stockholders to deliver voting agreements and (x) deleted the obligation of Contura to provide a gross-up to certain members of Alpha’s management for excise taxes arising under Section 280G of the Internal Revenue Code.
On April 16, 2018, the Alpha Boards held a special meeting and discussed the status of the negotiations with respect to the potential transaction with Contura. Representatives of Katten reviewed the key open issues in the merger agreement negotiations. Following discussion with Moelis, Katten and Alpha’s management, the Alpha Boards directed Alpha’s management, Moelis and Katten to arrange an in-person negotiation with Contura and its advisors.
On April 17, 2018, Party C delivered to Alpha a written proposal for a merger of Party C and Alpha (the “April Proposal”). Pursuant to the April Proposal, Alpha’s stockholders would receive 60% of the shares of common stock of the combined company. The April Proposal also contemplated a $720 million new term loan to refinance the existing first lien debt of Party C and existing term loan of Alpha and a $150 million capital infusion in order to finance either a deleveraging of the combined company or a redemption of a portion of the shares that would be held by Alpha’s stockholders at a 20% premium to the value implied by the closing trading price of Alpha’s common stock on April 16, 2018. Party C’s management estimated total run-rate synergies of $103 million to $187 million and estimated cost to achieve such synergies of $100 million. Party C further indicated that it would seek to convert all of its second lien debt into 65% of Party C’s outstanding common equity. The April Proposal also indicated that the combined company would be a private company. In addition, Mr. Stetson would be the chief executive officer of the combined company. The April Proposal was subject to Party C’s and their financing sources’ completion of due diligence.
On April 17, 2018, Alpha entered into a mutual confidentiality agreement with Party F.
On April 17, 2018, the Contura Board held a meeting and at that meeting the Contura Board discussed the potential transaction with Alpha. The Contura Board gave direction to Contura management regarding the potential transaction.
On April 18, 2018, Mr. Stetson, Mr. McCallister, Mr. Hopkins and Harvey Tepner, a director of Alpha, and representatives from Moelis and Katten, met in New York City with Mr. Crutchfield, Neale Trangucci, Chairman of the board of directors of Contura, Mr. Manno and Mr. Eidson to negotiate key open points in the draft merger agreement. At the negotiation, the parties resolved a number of open issues, including the following: (i) the break-up fee would be $19 million, (ii) Alpha would reimburse Contura for its deal expenses up to a cap to be agreed upon if Alpha’s stockholders did not approve the Contura transaction, (iii) no Alpha Parties’ stockholders would be required to deliver any voting agreements, (iv) Alpha would not have the ability to terminate the merger agreement to enter into a superior proposal and the Alpha Boards would be required to submit the Contura transaction to Alpha’s stockholders for approval, (v) Contura would be required to

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pay to Alpha a reverse break-up fee of $19 million if the Contura transaction were to be terminated as a result of any failure to obtain antitrust approval and (vi) Alpha would have the right to terminate the merger agreement in the event that Contura consummates a sale transaction or enters into a definitive agreement for a sale transaction. In a separate, contemporaneous negotiation among Mr. Crutchfield, Mr. Trangucci, Mr. Stetson and Mr. Tepner, it was agreed that Alpha would be entitled to appoint four of the nine directors to the Contura board. On April 18, 2018, members of Alpha management contacted BRG Valuation Services, LLC (“BRG”), an affiliate of Berkeley Research Group, LLC, to request that they serve as financial advisor to Holdings, specifically for the purpose of reviewing the fairness of the proposed mergers to the holders of Holdings common stock and providing their analyses to the Holdings Board. BRG, which was familiar with Alpha and its business because it had previously been retained in connection with the reclassification transaction, agreed to the engagement and promptly commenced its work on Holdings’ behalf, including its review of relevant financial and other information. BRG was formally engaged by Holdings on April 24, 2018.
On April 19, 2018, Katten delivered a revised merger agreement to Davis Polk.
On April 19, 2018, Alpha entered into a mutual confidentiality agreement with Party G. Thereafter, at the direction of ANR, representatives of Moelis thereafter provided financial due diligence information to Party G.
On April 20, 2018, the Alpha Boards held a special meeting and discussed the status of the negotiations with respect to the potential transaction with Contura. Representatives of Katten reviewed the key open issues in the merger agreement negotiations. Representatives of Moelis then discussed the April Proposal from Party C, as well as the status of discussions with Party F and Party G. The Alpha Boards reviewed Party C’s operating and financial performance for Q1 2018, which was significantly lower than the projections provided by Party C to the Alpha Parties in March 2018. The Alpha Boards also reviewed the implied pro forma leverage of a combined business, which was significantly higher than that of other companies in the coal industry. The Alpha Boards discussed that the benefits of potential synergies in a transaction with Party C, which were potentially significant, were outweighed by the Alpha Boards’ concerns regarding the April Proposal, many of which were longstanding concerns of the Alpha Boards regarding a transaction with Party C, including the implied pro forma leverage of a combined company and Party C’s refusal to equitize a significant portion of its first lien debt, the impact of implied pro forma leverage on the ability of the Alpha Parties’ stockholders to achieve liquidity, and the complexity and uncertainty of a negotiation with Party C, its creditors and various other constituencies. The Alpha Boards indicated that Alpha’s management and Moelis should continue discussions with Party C and its advisors, conveying the Alpha Boards’ concerns.
On April 20, 2018, Mr. Stetson and representatives of Party F participated in a teleconference where Alpha and Party F shared high-level information regarding their financial outlook and business plans.
From April 21, 2018 to April 23, 2018, Katten and Davis Polk continued to negotiate the open issues on the draft merger agreement.
On April 24, 2018, Davis Polk delivered to Katten a written list of open issues along with a revised draft of the merger agreement. The key open issues were: (1) gross-up payments for certain members of Alpha’s management that would be subject to excise tax liability under Section 280G of the Internal Revenue Code for payments received in connection with the potential transaction, (2) the amount of the cap ($9 million versus $6 million) on Alpha’s obligation to reimburse Contura for its deal expenses in the event that Alpha’s stockholders do not approve the potential transaction, and (3) the proposed amendment of Mr. Stetson’s employment agreement, including to provide for the repurchase by Alpha of Class C-1 common stock held by Mr. Stetson following the consummation of the proposed transaction.
On April 24, 2018, Mr. Trangucci contacted Mr. Tepner regarding the open issues in the merger agreement and communicated to Mr. Tepner that the issues relating to the 280G matters and the amendment of Mr. Stetson’s employment agreement were significant obstacles to reaching agreement on the terms of a transaction.
On April 24, 2018, the Alpha Boards held a special meeting to review the open issues in the merger agreement. In light of the open issues, a previously scheduled due diligence meeting between the Alpha Boards and Contura’s management team was cancelled at the direction of the Alpha Boards. Representatives of Moelis and Katten reported that they had inquired with an insurance broker whether an insurance product was available to insure against potential liability in respect of the 280G issue, and that the insurance broker expected to deliver quotes from carriers within the next week. The Alpha Boards instructed Moelis and Katten to continue to pursue insurance coverage regarding the 280G issue, but, in the meantime, to

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propose to Contura and its advisors a 280G indemnification and reimbursement arrangement for the benefit of certain members of Alpha’s management with an aggregate cap of $12.5 million. The Alpha Boards, with input from Katten and Moelis, discussed the expense reimbursement proposal from Contura. After discussion, the Alpha Boards instructed Moelis, Katten and Alpha’s management to propose a expense reimbursement cap of $7 million, with authority to ultimately accept a $9 million cap. Representatives from Moelis then provided an update to the Alpha Boards regarding the status of discussions with Party C, Party F and Party G. There had been no material change to Party C’s proposal. Party F and Party G had continued to express interest in evaluating a potential transaction with Alpha, but that there were no meaningful developments with respect to either Party F or Party G.
On April 25, 2018, the Contura Board held a meeting and at that meeting the Contura Board discussed the potential transaction with Alpha. The Contura Board gave direction to Contura management regarding the potential transaction.
Between April 25, 2018 and April 28, 2018, Katten and Davis Polk continued to negotiate the draft merger agreement and ancillary documentation. During such time, Alpha agreed to an expense reimbursement cap of $9 million. The parties agreed to pursue an insurance policy to cover potential 280G excise tax liabilities to certain members of Alpha’s management.
On April 26, 2018, the non-executive directors of the Alpha Boards held a meeting to discuss the potential transaction with Contura.
On April 28, 2018, Contura received form Alpha an amended version of Mr. Stetson’s employment agreement.
On April 29, 2018, the Alpha Boards held a special meeting. At the special meeting, Moelis reviewed with ANR’s board of directors Moelis’ financial analysis of the exchange ratio and delivered to the board an oral opinion, which was confirmed by delivery of a written opinion, dated April 29, 2018, addressed to ANR’s board of directors to the effect that, as of the date of the opinion and based upon and subject to the assumptions made, procedures followed, matters considered and other limitations set forth in the opinion, the exchange ratio set forth in the merger agreement was fair, from a financial point of view, to holders of Class C-1 common stock. Also at the special meeting, BRG reviewed with Holdings’ board of directors BRG’s financial analysis of the exchange ratio and delivered to the board an oral opinion, which was confirmed by delivery of a written opinion, dated April 29, 2018, addressed to Holding’s board of directors to the effect that, as of the date of the opinion and based upon and subject to the assumptions made, procedures followed, matters considered and other limitations set forth in the opinion, the exchange ratio set forth in the merger agreement was fair, from a financial point of view, to holders of Holdings common stock.
The Compensation Committee of the board of directors of ANR then held a special meeting at which it approved the matters discussed in “The Mergers—Interests of Alpha’s Directors and Executive Officers in the Mergers—Employment Agreement with David J. Stetson” and “The Mergers—Interests of Alpha’s Directors and Executive Officers in the Mergers—280G Reimbursement Agreements.” Also at the special meeting, the Alpha Boards unanimously adopted resolutions approving the merger agreement and recommending adoption of the merger agreement by Alpha’s stockholders.
On April 29, 2018, the Contura Board held a special meeting. At the special meeting, Ducera delivered its oral opinion to the Contura board of directors, which was subsequently confirmed in writing, to the effect that, as of the date of such opinion, and subject to the assumptions, limitations, qualifications and conditions described in such opinion, the exchange ratio of 0.4071 was fair, from a financial point of view, to Contura. Also at the special meeting, the Contura Board unanimously adopted resolutions approving the merger agreement and Contura charter amendment (as described on page 146).
On April 29, 2018, the beneficial owners of a majority of the outstanding shares of Contura common stock approved the Contura charter amendment (as described on page 146), as required pursuant to the terms of the merger agreement.
On April 29, 2018, following the special meetings of the Alpha Boards and the Contura Board, the merger agreement was signed.
On May 14, 2018, the record holders of a majority of the outstanding shares of Contura common stock approved the Contura charter amendment (as described on page 146), as required pursuant to the terms of the merger agreement.

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On May 31, 2018, pursuant to Section 228(e) of the DGCL, Contura provided a notice of corporate action taken without a meeting to the holders of Contura common stock who had not consented in writing to the Contura charter amendment (as described on page 146).
On May 25, 2018, Party C submitted a revised proposal for a proposed acquisition of Party C and Alpha by a newly formed holding company (the “May Proposal”). The May Proposal was substantially similar to the April Proposal, with the following exceptions: (1) Party C had increased the size of the new money capital raise from $150 million to $300 million, of which $200 million would be used to reduce pro forma first lien debt from $720 million to $520 million, and $100 million would be used to repurchase shares held by Alpha’s stockholders at a 25% premium to the value implied by the closing trading price of Alpha’s common stock on May 24, 2018, (2) investors in the capital raise would receive convertible senior preferred stock in the combined company with a liquidation preference equal to capital invested plus a dividend of 8% per annum, compounding quarterly (payable in cash or in kind at the election of the combined company), which would be redeemable following the tenth anniversary of the issuance date, (3) Party C intended to have the shares of common stock of the combined company listed on the New York Stock Exchange and (4) Alpha’s stockholders’ ownership of 60% of the combined company would be diluted by shares of convertible senior preferred stock issued in the capital raise and was determined before giving effect to the redemption of shares held by Alpha’s stockholders. The May Proposal projected estimated annual run-rate synergies of $150 million but did not provide any accompanying support for that figure or any projection of costs to achieve such synergies. The May Proposal did not identify the proposed management team of a combined business and was subject to due diligence by Party C and its financing sources.
On June 8, 2018, at a special meeting, the Alpha Boards determined in good faith that the May Proposal by Party C was not a superior proposal and was not reasonably likely to lead to a superior proposal. Prior to the Alpha Boards’ determination, the Alpha Boards reviewed the proposal with representatives of Katten and Moelis. Representatives of Katten made a presentation to Alpha Boards regarding the Alpha Parties’ rights and obligations under the Merger Agreement relating to the May Proposal, including the Alpha Parties’ obligations to refrain from discussions and negotiations with Party C absent a determination by the Alpha Boards in good faith that an acquisition proposal by Party C would be reasonably likely to lead to a superior proposal. Representatives of Katten also advised the Alpha Boards with respect to the directors’ fiduciary duties in the context of the May Proposal. Moelis provided an update on Party C’s operating and financial performance for Q1 2018, which was significantly lower than the projections provided by Party C to the Alpha Parties in March 2018 and was lower than estimates reported to the Alpha Boards on April 20, 2018. Moelis updated the Alpha Boards on the pro forma leverage of a combined business implied in the May Proposal, which, even when excluding the impact of the convertible senior preferred stock, continued to be significantly higher than that of other companies in the coal industry. In addition, analysis of the sources and uses of cash and financing in the May Proposal showed that Party C likely lacked sufficient liquidity to consummate all of the potential transactions contemplated by the May Proposal. In determining that the May Proposal was not reasonably likely to lead to a superior proposal, the Alpha Boards discussed that the implied pro forma leverage of the combined business continued to be too high, the cost and expense of the convertible senior preferred stock along with its potential negative impact on the common equity was problematic, the valuation of Alpha implied in the May Proposal was too low, that Party C’s liquidity, both at the time of a transaction and thereafter, remained a concern, and the complexity and uncertainty of a negotiation with Party C, its creditors and various other constituencies that would be required to close a transaction also remained a concern. The Alpha Boards also discussed that potential synergies resulting from a transaction with Party C continued to be attractive but were of secondary importance to the foregoing issues. Following the special meeting, Alpha notified Party C and Contura of its determination that the May Proposal was not reasonably likely to lead to a superior proposal.
Between June 8, 2018 and June 19, 2018, Party C and its representatives made a number of attempts to discuss the May Proposal. Consistent with its obligations under the Merger Agreement, Alpha and its representatives declined to engage in any such discussions.
On June 20, 2018, Party C submitted a revised proposal (the “June Proposal”) for a proposed acquisition of Party C and Alpha by a newly formed holding company (“Newco”). The proposal was substantially similar to the May Proposal, with the following exceptions: (1) Alpha stockholders would own 65% of Newco before giving effect to dilution from the convertible senior preferred stock, (2) Party C had increased the size of the new money capital raise from $300 million to $350 million, of which $250 million would be used to reduce pro forma first lien debt, and $100 million would be left on Newco’s balance sheet (and not used to repurchase shares held by Alpha’s stockholders), (3) Party C projected up to $370 million of annual run-rate synergies, (4) the June Proposal included an executed debt commitment letter for the first lien refinancing and a

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commitment by holders of approximately 90% of Party C’s outstanding second lien debt to convert the second lien debt to common equity of Newco, (5) the refinanced first lien debt would include a mandatory cash sweep of 25% of Newco’s annual free cash flow if Newco’s leverage would increase to two times EBITDA or greater and a mandatory amortization of 50 bps per month, and (6) Party C contemplated obtaining an ABL credit facility of not less than $100 million and not more than $150 million.
On June 27, 2018, at a special meeting, the Alpha Boards determined in good faith based upon the information available to them at the time that the June Proposal by Party C was not a superior proposal and was not reasonably likely to lead to a superior proposal. Prior to the Alpha Boards’ determination, the Alpha Boards reviewed the proposal with representatives of Katten, Moelis and Alpha’s management. Representatives of Katten made a presentation to Alpha Boards regarding the Alpha Parties’ rights and obligations under the Merger Agreement relating to the June Proposal, including the Alpha Parties’ obligations to refrain from discussions and negotiations with Party C absent a determination by the Alpha Boards in good faith that an acquisition proposal by Party C would be reasonably likely to lead to a superior proposal. Representatives of Katten also advised the Alpha Boards with respect to the directors’ fiduciary duties in the context of the June Proposal. Moelis discussed financial aspects relating to the June Proposal. Moelis reported to the Alpha Boards that Party C had lowered its forecasted EBITDA for 2018. Moelis also updated the Alpha Boards regarding, pro forma leverage and liquidity implied in the June Proposal. Alpha’s management presented to the Alpha Board its analysis of the potential synergies in a transaction with Party C. Alpha’s management reported that, while the high end of the synergy level forecasted by Party C in the June Proposal was overly optimistic, it believed that material synergies were achievable. Following discussions, the Alpha Board moved to executive session to discuss the June Proposal. In determining that the June Proposal was not reasonably likely to lead to a superior proposal, the Alpha Boards discussed the obstacles to a potential transaction with Party C. The Alpha Boards again determined that the implied pro forma leverage of the combined business continued to be higher than Alpha’s stated preference, the cost and expense of the convertible senior preferred stock, as proposed, along with its potential dilutive impact on the common equity continued to be problematic, the valuation of Alpha implied in the June Proposal was too low, that Party C’s liquidity, both at the time of a transaction and thereafter, remained a concern, and the complexity and uncertainty of a negotiation with Party C, its creditors and various other constituencies that would be required to close a transaction could affect the timing of closing any transaction with Party C. The Alpha Boards also expressed reservations about the reasonableness of Party C’s standalone projections for 2019. Moreover, the Alpha Boards discussed that each of their major concerns had been explained to Party C prior to Alpha’s execution of the Merger Agreement. Following the special meeting, Alpha notified Party C and Contura of its determination that the June Proposal was not reasonably likely to lead to a superior proposal.
On June 29, 2018, Contura notified Alpha that Contura had experienced unforeseen geologic conditions at its Cumberland mine due to reduced coal seam thickness and localized soft clay influences within the coal seam. Contura informed Alpha that production and processing at the Cumberland mine had slowed and that the mine was temporarily idled for several days in mid-June. On July 2, 2018, Contura publicly announced that (i) over the last several weeks, the Cumberland mine had been experiencing unforeseen geologic conditions due to reduced coal seam thickness and localized soft clay influences within the coal seam, (ii) as a result, both production and processing had slowed, (iii) the mine was temporarily idled for several days in mid-June to more effectively manage stockpile levels, (iv) production had since resumed, though Contura expected reduced tonnage levels for the next several weeks as production works through the localized clay issues and (v) Contura did not expect these challenging conditions to extend past early- to mid-August.
On July 2, 2018, Contura delivered to Alpha and its advisors a revised monthly Cumberland EBITDA forecast for June through December 2018.
On July 4, 2018, the chairman of Party C sent an email message to Mr. Stetson, informing Mr. Stetson that the June Proposal remained open and, in Party C’s view, a superior proposal, and that Party C was willing to negotiate the June Proposal with the Alpha Parties.
On July 5, 2018, Mr. Hopkins, Mr. Eidson and representatives of Moelis and Ducera participated in a conference call to discuss the potential financial impact of the events at the Cumberland mine.
On July 6, 2018, Mr. Hopkins, Mr. Eidson and representatives of Moelis and Ducera participated in a follow-up call to discuss Contura’s year to date results and its performance as compared to its 2018 budget, inclusive of the impact of the recent developments at the Cumberland mine.

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On July 9, 2018, at a special meeting, the Alpha Boards received an update from Alpha’s management and Moelis regarding recent events, including recent events at the Cumberland mine and their impact on Contura’s financial performance. At the meeting, the Alpha Boards, after discussions involving members of Alpha management, representatives of Katten, Moelis and Richards, Layton & Finger, P.A., special Delaware counsel to the Alpha Boards, determined that they would reevaluate the June Proposal, and directed that Alpha management and the financial and legal advisors undertake further analyses so that the members of the Alpha Boards would have the information they consider necessary to facilitate that reevaluation.
On July 18, 2018, at a special meeting, the Alpha Boards received updated presentations from Alpha’s management and Moelis regarding the potential impact of recent events at the Cumberland mine, including the impact of such events on Contura’s financial performance. The Alpha Boards reevaluated the June Proposal, including in comparison to the mergers after giving effect to the potential impact of recent events at the Cumberland mine on Contura’s current and future financial performance and Party C’s statements to the Alpha Parties that it was open to negotiating the terms of a potential transaction and, after discussions involving members of the Alpha Parties’ management, representatives of Katten, Moelis and Richards Layton, determined in good faith that the June Proposal was reasonably likely to lead to a superior proposal. The Alpha Boards directed management to communicate the Alpha Boards’ determination to Contura and Party C. The Alpha Boards further directed management and the Alpha Parties’ advisors to develop a due diligence plan with respect to Party C and the June Proposal, particularly as it related to the synergies assumptions contained in the June Proposal, and target to complete due diligence within a few weeks.
On July 18, 2018, following the special meeting of the Alpha Boards, Katten communicated the Alpha Boards’ determination to Davis Polk and counsel to Party C. Katten also provided a draft mutual confidentiality agreement to Party C’s counsel.
On July 22, 2018, the Alpha Parties entered into a mutual confidentiality agreement with each of Party C and certain of its representatives.
On July 23, 2018, members of the Alpha Parties’ management and representatives of Katten and Moelis met with representatives of Party C in New York, New York. At the meeting, members of the Alpha Parties’ management provided an overview of Alpha’s financial performance for the year-to-date through June 30, 2018. Representatives of Party C provided an overview of Party C’s financial performance and an overview of the June Proposal. In response to the overview of the June Proposal, representatives of the Alpha Parties’ management stated that the Alpha Boards had concerns regarding the preferred stock outlined in the June Proposal. The parties also discussed a timetable and protocol for financial and business due diligence.
From and after July 24, 2018, each of Alpha and Party C and their respective representatives conducted financial and business due diligence.
On August 3, 2018, Mr. Kreutzer notified Mr. Whitehead via email that the force majeure that had been declared at the Cumberland mine due to the previously announced localized geologic conditions was lifted on August 1, 2018. Subsequently, on August 8, 2018, Mr. Kreutzer further informed Mr. Whitehead at a meeting that full coal production resumed at the Cumberland mine as of August 1, 2018, due to the abatement of the challenges stemming from such conditions.
On August 14, 2018, at a special meeting, the Alpha Boards received an update regarding the due diligence process with Party C from the Alpha Parties’ management and Moelis. The Alpha Parties’ management and Moelis reported that substantial financial and business due diligence remained to be completed as Party C had only delivered certain material financial information on August 10, 2018. The Alpha Parties’ management and Moelis further reported that, in their conversations with Party C and its representatives, Party C and its representatives indicated that Party C was not prepared to convert any portion of Party C’s first lien debt to equity and that Party C’s financing sources would require convertible preferred stock in exchange for new equity financing. The Alpha Boards instructed management and Moelis to communicate to Party C and its representatives that the preferred stock terms of the June Proposal and the pro forma leverage implied in the June Proposal continued to be problematic. The Alpha Boards discussed that the preferred stock would be dilutive to the Alpha Parties’ stockholders and could result in a capital structure that would be unfavorable to the Alpha Parties’ stockholders. In addition, the Alpha Boards reiterated their continuing concern about pro forma leverage of a combined company and its desire to effect a transaction in which the combined company’s overall pro forma debt would result in

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leverage ratios that would be in line with industry norms. The Alpha Boards further directed management and Moelis to inform Party C that these concerns should be addressed in the near term in order to progress discussions.
On August 17, 2018, representatives of the Alpha Parties’ management, Moelis and Katten attended a meeting with representatives of Party C.  The purpose of the meeting was to update the parties on the current status of financial and business due diligence and for the Alpha Parties’ management to provide feedback on the terms of the June Proposal relating to the preferred stock financing and pro forma leverage of a combined business.  At the Alpha Boards’ direction, the Alpha Parties’ management stated at the meeting that the deleveraging of a substantial portion of Party C’s pro forma first lien debt and eliminating the preferred stock component of the June Proposal were gating items to a potential transaction for the reasons stated by the Alpha Boards at the August 14, 2018 special meeting of the Alpha Boards.  Party C and its representatives indicated that they would take the Alpha Parties’ feedback into consideration and would respond quickly.
Contura’s Reasons for the Mergers
At the meeting of the Contura board of directors on April 29, 2018, after careful consideration, including detailed discussions with Contura’s management and its legal and financial advisors, all of the directors present at the meeting unanimously determined that the mergers are advisable and fair to and in the best interests of Contura and its stockholders and approved the merger agreement and the mergers.
In evaluating the mergers, the Contura board of directors consulted with Contura’s management, as well as Contura’s legal and financial advisors and, in reaching a conclusion to approve the mergers and related transactions, the Contura board of directors reviewed a significant amount of information and considered a number of factors including:
•
its knowledge of Contura’s business, operations, financial condition, earnings and prospects and of Alpha’s business, operations, financial condition, earnings and prospects, taking into account the results of Contura’s due diligence investigation of Alpha;
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its knowledge of the current environment in the mining industry, including economic conditions, the potential for continued consolidation, current financial market conditions and the likely effects of these factors on Contura’s, Alpha’s and the combined company’s potential growth, development, productivity and strategic options;
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Contura management’s expectation of synergies and cost savings that are anticipated to be realized as a result of the mergers;
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the strategic nature of the acquisition, which would be expected to create a combined company:
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well-equipped to respond to economic, regulatory, legislative and other industry developments and that has a strong platform for continued strategic investments in the global mining industry with a strong balance sheet and substantial liquidity;
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with diverse, extensive and high quality reserves, which will enhance Contura’s existing coal blending capabilities and reserve position and, together with increased liquidity, will better enable organic growth through acquisitions; and
◦
with the prospects for an expanded customer base and product offering to allow for new business relationships and transactions not available to either company on a stand-alone basis;
•
Contura management’s view, based on due diligence and discussions with Alpha’s management, that Contura and Alpha share complementary core values with respect to integrity, safety standards and practices, community development, environmental practices, participation in government affairs and customer satisfaction;
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that the mergers will join two experienced coal industry workforces with complementary values, established track records and technical and operational expertise;
•
information concerning the financial conditions, results of operations, prospects and businesses of Contura and Alpha, including the respective companies’ reserves, production volumes, cash flows from operations and the ratio of Contura’s stock price to Alpha’s stock price over various periods;

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•
that the exchange ratio would enable existing Contura stockholders to own approximately 53.5% of the outstanding stock of the combined company, which would provide existing Contura stockholders with greater investment diversification while giving them the opportunity to participate in any future earnings or growth of the combined company and future appreciation in the value of the combined company’s common stock following the mergers should they determine to retain the combined company’s common stock following the mergers;
•
that a fixed exchange ratio avoids fluctuations caused by near-term market volatility;
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the parties’ expectation that delays in obtaining regulatory approvals for the transaction are unlikely;
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the fact that the transactions would provide Contura’s stockholders with the opportunity to achieve increased liquidity through a combination of: the listing of Contura’s common stock on the New York Stock Exchange, the establishment of a broader stockholder base, Contura’s post-closing status as an SEC reporting company, and other actions that are expected to enhance liquidity for Contura common stock;
•
the structure of the mergers and the terms and conditions of the merger agreement, including the following:
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that Alpha agreed to pay a termination fee of $19 million to Contura if the mergers are not consummated for certain reasons as more fully described in the section entitled “The Merger Agreement—Termination Fees” beginning on page 161;
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that Alpha agreed to reimburse Contura for Contura’s fees and expenses incurred in connection with the transactions contemplated by the merger agreement of up to $9 million, credited against the aforementioned $19 million termination fee, if the merger agreement is terminated because Alpha’s stockholders fail to approve the merger agreement at the Alpha special meetings, as more fully described in the section entitled “The Merger Agreement—Termination Fees” beginning on page 161;
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the provisions of the merger agreement relating to governance of the combined company;
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the probability that the conditions to completion of the mergers would be satisfied; and
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that, subject to certain exceptions, Alpha agreed to cease and refrain from engaging in any solicitation, encouragement, discussion or negotiation with any party (other than Contura or its representatives) with respect to any inquiry, offer or proposal for certain types of business combinations or acquisitions of Alpha (and from entering into any agreements for such business combinations or acquisitions of Alpha or any requirement to abandon, terminate or fail to consummate the mergers) and subject to certain exceptions, the Holdings and ANR boards of directors may not withdraw or adversely modify their respective recommendation of the mergers to their respective stockholders; and
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the requirement that Alpha submit the merger agreement and the mergers to stockholder votes even if one or both of the Alpha boards of directors do not recommend that their respective stockholders approve them.
•
Ducera’s opinion and presentation, dated April 29, 2018, to Contura’s board of directors as to the fairness, from a financial point of view and as of the date of the opinion, to Contura of the exchange ratio provided for in the merger agreement, as more fully described below in “The Mergers — Opinion of Contura’s Financial Advisor” beginning on page 114.
The Contura board of directors also considered the potential adverse impact of other factors weighing negatively against the proposed transaction, including, without limitation, the following:
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the risks and contingencies relating to the announcement and pendency of the mergers and the risks and costs to Contura if the mergers do not close timely or do not close at all, including the impact on Contura’s relationships with employees and with third parties;
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the potential dilution to Contura stockholders;

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•
the nature and amount of payments to be received by Alpha management in connection with the mergers as more fully described below in “The Mergers — Interests of Alpha Directors and Executive Officers in the Mergers” beginning on page 138;
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the risk of diverting management focus, employee attention and resources from other strategic opportunities and from operational matters while working to complete the mergers and implement merger integration efforts;
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the challenges of combining the businesses, operations and workforces of Contura and Alpha and realizing the anticipated cost savings and operating synergies;
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the risk that the parties may incur significant costs and delays resulting from seeking governmental consents and approvals necessary for completion of the mergers;
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the additional burdens associated with the registration and listing of Contura common stock and related compliance obligations;
•
the terms and conditions of the merger agreement, including:
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that Contura must pay to Alpha a termination fee of $19 million if the merger agreement is terminated under circumstances specified in the merger agreement, as described in the section entitled “The Merger Agreement— Termination Fees” beginning on page 161;
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the requirement that Contura generally conduct its business only in the ordinary course and that Contura is subject to a variety of other restrictions on the conduct of its business prior to the completion of the mergers, any of which may delay or prevent Contura from pursuing business opportunities that may arise or may delay or preclude Contura from taking actions that would be advisable if it were to remain an independent company; and
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that, under certain circumstances and subject to certain conditions more fully described in the section entitled “The Merger Agreement—Covenants and Agreements—Non-Solicitation” beginning on page 153, Alpha may furnish information to, and conduct negotiations with, a third party in connection with an unsolicited proposal for a business combination or acquisition of Alpha that is likely to lead to a superior proposal and the Alpha board of directors can, under certain circumstances, change its recommendation prior to Alpha stockholders’ approval of the merger agreement; and
•
the risks described in the section entitled “Risk Factors” beginning on page 34.
The Contura board of directors concluded that the anticipated benefits of the mergers would outweigh the preceding considerations.
The reasons set forth above are not intended to be exhaustive, but include material facts considered by the Contura board of directors in approving the merger agreement. In view of the wide variety of factors considered in connection with its evaluation of the mergers and the complexity of these matters, the Contura board of directors did not find it useful to and did not attempt to quantify or assign any relative or specific weights to the various factors that it considered in reaching its determination to approve the mergers and the merger agreement. In addition, individual members of the Contura board of directors may have given differing weights to different factors. The Contura board of directors carefully considered all of the factors described above as a whole.
Alpha’s Reasons for the Mergers; Recommendation of the Alpha Board of Directors
At a joint meeting of the boards of directors of ANR and Holdings held on April 29, 2018, the board of directors of ANR unanimously (i) determined that the merger agreement and the transactions contemplated thereby, including the ANR merger, are fair, advisable and in the best interests of ANR and its stockholders, (ii) adopted the merger agreement and approved the transactions contemplated by the merger agreement, including the ANR merger, (iii) directed that the approval of the merger agreement be submitted to a vote of the stockholders of ANR, and (iv) resolved to recommend that the ANR stockholders approve the merger agreement. At such meeting, the Holdings board of directors also (i) determined that the merger agreement and the transactions contemplated thereby, including the Holdings merger, are fair, advisable and in the best interests of Holdings and its stockholders, (ii) adopted the merger agreement and approved the transactions contemplated by

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the merger agreement, including the Holdings merger, (iii) directed that the approval of the merger agreement be submitted to a vote of the stockholders of Holdings, and (iv) resolved to recommend that the Holdings stockholders approve the merger agreement.
As described under the heading “The Mergers — Background of the Mergers,” in evaluating the merger agreement and the mergers, the Alpha boards consulted with Alpha’s management and legal and financial advisors and, in reaching their conclusions and recommendations, considered the following primary factors:
•
the Alpha boards’ knowledge of Alpha’s business, operations, financial performance and condition, earnings, competitive position and prospects and of Contura’s business, operations, financial performance and condition, earnings, competitive position and prospects, taking into account the results of Alpha’s due diligence of Contura;
•
the financial conditions, results of operations, prospects and businesses of Alpha and Contura relative to one another, including the respective companies’ reserves, production volumes, cash flows from operations, and fully diluted market capitalizations;
•
the Alpha boards’ knowledge of the current environment in the mining industry, including economic conditions, the potential for continued consolidation, current financial market conditions and the likely effects of these factors on Contura’s and Alpha’s potential growth, development, productivity and strategic options;
•
Alpha management’s estimate the combination would ultimately be expected to generate cost savings on a run-rate basis of approximately $34 million annually;
•
the strategic nature of the transaction, which would be expected to create a company:
◦
that would be the largest supplier of metallurgical coal in the United States and a premier supplier of thermal coal, with approximately 30 mines and combined coal reserves of over a billion tons;
◦
with an expanded operating footprint, more diversified product offerings, improved metallurgical coal blending capabilities and significantly enhanced scale, and with a significantly larger combined enterprise value;
◦
that would be well-equipped to respond to economic, regulatory, legislative and other developments affecting the combined company particularly and the coal industry generally;
◦
based on liquidity projections provided by Contura, with the financial wherewithal to fulfill the obligations of Alpha in respect of contingent revenue payments pursuant to the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, dated May 27, 2016, as modified and confirmed by the Order Confirming Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as Modified (Docket No. 3038), entered by the Bankruptcy Court on July 12, 2016 (the “bankruptcy plan”);
◦
with the prospects for an expanded customer base to allow for new business relationships and transactions not available to either company on a stand-alone basis;
◦
other advantages over Alpha as a stand-alone company;
•
the fact that Contura is a “Qualified Buyer” within the meaning of the bankruptcy plan;
•
that the exchange ratio would enable Alpha stockholders to own approximately 46.5% of the combined company, based on current stock prices and capital structures, which would provide Alpha stockholders with greater investment diversification while giving them the opportunity to participate in any future earnings or growth of the combined company and future appreciation in the value of the combined company’s common stock following the mergers should they determine to retain the Contura common stock received in the merger;
•
that there has been only limited trading in Alpha’s common stock, and that some of Alpha’s largest stockholders had expressed a strong desire to achieve liquidity for their investment;
•
the fact that the transactions would provide Alpha’s stockholders with the opportunity to achieve increased liquidity through a combination of: the listing of Contura’s common stock on the New York Stock Exchange, the

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establishment of a broader stockholder base, Contura’s post-closing status as an SEC reporting company, and other actions that are expected to enhance liquidity for Contura common stock;
•
the terms of the merger agreement, including:
◦
the fact that the merger agreement provides ANR the right to appoint four of Contura’s nine directors upon consummation of the merger, and requires Contura to nominate ANR’s director designees for election to the board of directors of Contura through the completion of Contura’s 2019 annual meeting;
◦
the fact that shares of Class C-1 common stock and Holdings common stock would be exchanged in the mergers for shares of Contura common stock using a single exchange ratio, which the Alpha boards considered to be appropriate because (i) Holdings’ only asset is all of the outstanding Class C-2 common stock, (ii) the number of outstanding shares of Holdings common stock equals the number of outstanding shares of Class C-2 common stock ( i.e. , for each one share of Holdings common stock, Holdings holds one share of Class C-2 common stock), (iii) the only material difference between Class C-1 common stock and Class C-2 common stock is the modestly higher voting power of Class C-2 common stock, (iv) the ANR certificate of incorporation provides that the holders of Class C-1 common stock and the holders of Class C-2 common stock are treated equally in respect of dividends and distributions and upon liquidation and that holders of Class C-1 common and holders of Class C-2 common stock are to receive the same per share consideration in any merger or similar transaction, (v) Holdings common stock had not historically traded at a premium to Class C-1 common stock (as reflected in the materials provided by BRG to the Holdings board), and (vi) the Holdings board’s experience, and BRG’s view based on its experience, that enhanced voting power or a non-controlling ownership interest like that of Holdings in ANR, would not typically result in a premium to the holders of that interest in a merger or similar transaction;
◦
the provisions of the merger agreement that allow Alpha to engage in negotiations with, and provide information to, third parties, under certain circumstances in response to an unsolicited bona fide acquisition proposal received prior to Alpha stockholder approval of the merger agreement that Alpha’s board of directors determines in good faith, after consultation with outside counsel and financial advisors, constitutes or would reasonably be likely to lead to a transaction that is more favorable from a financial point of view to Alpha stockholders than the mergers (taking into account modifications that may be proposed by Contura);
◦
the ability of the ANR board and the Holdings board to change their respective recommendations with respect to the merger agreement and the applicable merger in response to a superior proposal, if failure to do so would be inconsistent with their fiduciary duties;
◦
the belief that the terms of the merger agreement, taken as a whole, provide a significant degree of certainty that the mergers will be completed, including the facts that (i) the conditions required to be satisfied prior to completion of the mergers, such as the receipt of ANR and Holdings stockholder approval and antitrust clearance, are expected to be fulfilled, (ii) the mergers are not contingent upon any financing or similar condition, and (iii) there are limited circumstances in which Contura may terminate the merger agreement;
◦
the fact that, in certain circumstances, if the merger agreement is terminated due to an order, decree or ruling under applicable antitrust laws (or otherwise as a result of a failure to obtain antitrust approval or at the time of termination the conditions precedent to Contura’s obligations to consummate the closing have been satisfied), Contura will owe Alpha a cash (reverse) termination fee of $19 million;
◦
the belief that the terms of the merger agreement, including the parties’ representations, warranties and covenants and the conditions to their respective obligations, are reasonable and that deal protections in favor of Contura were neither coercive to stockholders nor preclusive of competing offers;
•
the fixed number of shares of Contura common stock that ANR and Holdings stockholders would receive in exchange for their common stock, which provides the opportunity for ANR and Holdings stockholders to benefit from any increase in the trading price of Contura common stock between the announcement of the transaction and the completion of the mergers;

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•
the Alpha boards of directors’ analyses of other strategic alternatives for Alpha, including continued growth as an independent company and the potential to acquire, be acquired by or combine with other third parties;
•
the fact that ANR’s financial advisor contacted or communicated with a number of potential strategic partners and purchasers in addition to Contura to determine whether they would be interested in potentially acquiring, or entering into strategic transaction with, Alpha and the boards of directors considered proposals made by some of such potential purchasers and strategic partners;
•
that no other parties had proposed an alternative transaction as favorable to ANR stockholders or Holdings stockholders as the transaction offered by Contura;
•
the fact that a vote of ANR stockholders entitled to vote on the ANR merger is required under Delaware law to adopt the merger agreement, and that stockholders who do not vote in favor of the adoption of the merger agreement will have the right to demand appraisal of the fair value of their shares under Delaware law if the ANR merger is approved and consummated;
•
the fact that a vote of Holdings stockholders entitled to vote on the Holdings merger is required under Delaware law to adopt the merger agreement, and that stockholders who do not vote in favor of the adoption of the merger agreement will have the right to demand appraisal of the fair value of their shares under Delaware law if the Holdings merger is approved and consummated;
•
the expected qualification of each merger as a “reorganization” within the meaning of Section 368(a) of the Code, which generally allows Alpha stockholders to defer the recognition of any gain from the receipt of the share portion of the merger consideration, as described in the section entitled “Material United States Federal Income Tax Consequences of the Mergers” beginning on page 316;
•
the financial analysis and opinion of BRG presented to the Holdings board of directors on April 29, 2018;
•
the opinion of Moelis, dated April 29, 2018, addressed to ANR’s board of directors as to the fairness, from a financial point of view and as of the date of such opinion, of the exchange ratio set forth in the merger agreement to the holders of Class C-1 common stock, as more fully described below under the caption “The Mergers — Opinion of ANR’s Financial Advisor”;
•
Contura’s agreements to provide to current employees of Alpha compensation opportunities and benefits that are substantially comparable, in the aggregate, to the compensation opportunities and benefits provided by Alpha prior to the mergers or by Contura to similarly situated employees, to honor certain obligations of Alpha to its current employees, and to provide credit for certain compensation plans for service rendered by Alpha’s current employees prior to the closing; and
•
Alpha management’s support of the mergers.
The Alpha boards also considered risks and potentially negative factors in connection with their deliberations regarding the proposed transactions, including the following:
•
the fact that the mergers might not be completed in a timely manner or at all, due to a failure of certain conditions, including the failure to obtain approval of the transaction by antitrust regulatory authorities or necessary consents;
•
the risks relating to the public announcement and pendency of the mergers and the risks and costs to Alpha (including costs relating to Alpha’s performance under the merger agreement) if the transaction does not close on a timely basis or does not close at all, including the impact on Alpha’s relationships with employees, vendors, customers and other third parties;
•
the risk of diverting management focus, employee attention and resources from other strategic opportunities and from operational matters while working to complete the mergers and implement merger integration efforts;
•
the challenges of combining the businesses, operations and workforces of Alpha and Contura and realizing the anticipated cost savings and operating synergies;

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•
the nature and amount of payments and benefits to be received by Alpha management in connection with the mergers;
•
the terms and conditions of the merger agreement, including:
◦
the restrictions on Alpha’s ability to solicit or participate in discussions or negotiations regarding alternative transactions, subject to specified exceptions;
◦
the requirement that Alpha provide Contura with an opportunity to propose revisions to the merger agreement prior to the board of directors of either ANR or Holdings being able to change its recommendation with respect to the merger agreement or the applicable merger;
◦
the requirement that Alpha submit the merger agreement and the mergers to stockholder votes even if the Alpha boards of directors do not recommend that their respective stockholders approve them;
◦
that Alpha must pay to Contura a termination fee of $19 million if the merger agreement is terminated under circumstances specified in the merger agreement, as described in the section entitled “The Merger Agreement — Termination Fees” beginning on page 161, which may have the effect of discouraging third parties from proposing an alternative business combination transaction;
◦
the requirement that Alpha generally conduct its business only in the ordinary course and that Alpha is subject to a variety of other restrictions on the conduct of its business prior to the completion of the mergers, any of which may delay or prevent Alpha from pursuing business opportunities that may arise or may delay or preclude Alpha from taking actions that would be advisable if it were to remain an independent company;
◦
that Contura may terminate the merger agreement if holders of more than 10% of the outstanding Holdings common stock and Class C-1 common stock (excluding shares held by persons who also own more than 1% of Contura’s outstanding common stock) properly demand appraisal of their shares in accordance with Section 262 of the DGCL; and
•
because the merger consideration is a fixed number of shares of Contura common stock per Alpha share, the Alpha stockholders could be adversely affected by a decrease in the trading price of Contura common stock after the date of execution of the merger agreement, and the merger agreement does not provide Alpha with a price-based termination right or other similar protection for Alpha or its stockholders, such as a “collar” with respect to Contura’s stock price;
•
the fact that Alpha’s directors and executive officers have interests in the mergers that may be different from, or in addition to, those of Alpha’s stockholders generally, including those interests that are a result of employment and compensation arrangements with Alpha’s executive officers, and the manner in which they would be affected by the merger, as described more fully in the section entitled “Summary—Interests of Alpha’s Directors and Executive Officers in the Mergers” beginning on page 10;
•
the fact that Contura may incur additional indebtedness of up to approximately $100 million prior to or concurrently with the closing of the mergers, and may incur additional indebtedness following the mergers, which debt may adversely impact Contura’s operations following the mergers;
•
the risks that the financial results and the stock price of the combined company might decline, including the possible adverse effects on the stock price and financial results of the combined company if the benefits and synergies expected from the mergers are not obtained on a timely basis or at all;
•
the significant costs involved in connection with negotiating the merger agreement and completing the mergers (and that if the mergers are not consummated due to Alpha’s failure to obtain requisite stockholder approval, Alpha may be required to bear such costs and expenses incurred by Contura), the substantial management time and effort required to effectuate the mergers and the related disruption to Alpha’s day-to-day operations during the pendency of the merger; and
•
the risks described in the section entitled “Risk Factors” beginning on page 34.

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The foregoing discussion of the factors considered by the Alpha boards of directors is not intended to be exhaustive. Rather, it includes the primary factors considered by the Alpha boards of directors in reaching their respective conclusions and recommendations with respect to the merger agreement and the mergers. In light of the variety of factors considered in connection with their evaluation of the merger agreement and the mergers, the Alpha boards of directors did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching their respective determinations and recommendations. Rather, the Alpha boards of directors viewed their determinations and recommendations as being based on the totality of information and factors presented to and considered by them. Moreover, each member of the Alpha boards of directors applied his or her own personal business judgment to the process and may have given different weight to different factors.
This explanation of Alpha’s reasons for the mergers and other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors described under “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 66.
After careful consideration, (A) the board of directors of ANR unanimously recommends that ANR stockholders vote “FOR” adoption of the merger agreement; and (B) the board of directors of Holdings unanimously recommends that Holdings stockholders vote “FOR” adoption of the merger agreement.
Opinion of ANR’s Financial Advisor
At the meeting of ANR’s board of directors on April 29, 2018 to evaluate and approve the merger agreement and the ANR merger, Moelis delivered an oral opinion, which was confirmed by delivery of a written opinion, dated April 29, 2018, addressed to ANR’s board of directors to the effect that, as of the date of the opinion and based upon and subject to the assumptions made, procedures followed, matters considered and other limitations set forth in the opinion, the exchange ratio provided for in the merger agreement was fair, from a financial point of view, to the holders of Class C-1 common stock.
The full text of Moelis’ written opinion dated April 29, 2018, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex B to this proxy statement/prospectus and is incorporated herein by reference. Moelis’ opinion was provided for the use and benefit of ANR’s board of directors (in its capacity as such) in its evaluation of the ANR merger. Moelis’ opinion is limited solely to the fairness, from a financial point of view, of the exchange ratio to the holders of Class C-1 common stock, and does not address ANR’s underlying business decision to effect the ANR merger or the relative merits of the ANR merger as compared to any alternative business strategies or transactions that might be available with respect to ANR. Moelis’ opinion does not constitute a recommendation to any stockholder as to how such stockholder should vote or act with respect to the mergers or any other matter.
In arriving at its opinion, Moelis, among other things:
•
reviewed certain publicly available business and financial information relating to ANR, Holdings and Contura;
•
reviewed certain internal information relating to the business, earnings, cash flow, assets, liabilities and prospects of ANR furnished to Moelis by ANR, including financial forecasts provided to Moelis (and discussed with Moelis) by ANR’s management (described on page 112 and referred to in this section as “ANR Projections”);
•
reviewed certain internal information relating to the business, earnings, cash flow, assets, liabilities and prospects of Contura furnished to Moelis by Contura, including financial forecasts provided to Moelis (and discussed with Moelis) by Contura’s management (described on page 124 and referred to in this section as “Contura Base Case”);
•
reviewed certain financial forecasts for Contura reflecting adjustments to the Contura Base Case made by the management of ANR regarding the financial impact attributable to the expiration of ANR’s marketing arrangement with Contura (described on page 112 and referred to in this section as the “Adjusted Contura Projections”);
•
reviewed estimates of management of ANR regarding cost savings anticipated to result from the mergers, including the amount and timing thereof (referred to in this section as the “Synergy Estimates”);

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•
reviewed estimates of management of ANR regarding ANR’s and Contura’s anticipated utilization of their respective net operating losses and realization of their respective other tax assets, including the amount and timing thereof (referred to in this section as the “Tax Attribute Estimates”);
•
conducted discussions with members of senior management and representatives of ANR and Contura concerning the information described above, as well as the business and prospects of ANR and Contura generally;
•
reviewed publicly available financial and stock market data of certain other companies in lines of business that Moelis deemed relevant;
•
reviewed a draft, dated April 28, 2018, of the merger agreement;
•
participated in certain discussions and negotiations among representatives of ANR and Contura and their advisors; and
•
conducted such other financial studies and analyses and took into account such other information as Moelis deemed appropriate.
In connection with its review, with the consent of ANR’s board of directors, Moelis relied on the information supplied to, discussed with or reviewed by it for purposes of its opinion being complete and accurate in all material respects. Moelis did not assume any responsibility for independent verification of, and did not independently verify, any of such information. With the consent of ANR’s board of directors, Moelis relied upon, without independent verification, the assessment of ANR and its legal, tax, regulatory, environmental and accounting advisors with respect to legal, tax, regulatory, environmental and accounting matters. With respect to the ANR Projections and Contura Base Case referred to above, Moelis assumed, at the direction of ANR’s board of directors, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR or Contura, as the case may be, as to the future performance of ANR and Contura, respectively. With respect to the Adjusted Contura Projections referred to above, Moelis assumed, at the direction of ANR’s board of directors, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR as to the future performance of Contura. With respect to the Synergy Estimates, Moelis assumed, at the direction of ANR’s board of directors, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR as to the cost savings anticipated to result from the mergers (including the amount and timing thereof). With respect to the Tax Attribute Estimates, Moelis assumed, at the direction of the ANR board of directors, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR as to ANR’s and Contura’s respective net operating losses and the anticipated utilization thereof and realization of other tax assets (including the amount and timing thereof). Moelis didn’t express any views as to the reasonableness of any financial forecasts or the assumptions or methodologies on which they are based. With the consent of ANR’s board of directors, Moelis did not make any independent evaluation or appraisal of any of the assets or liabilities (contingent, derivative, off-balance-sheet, or otherwise) of ANR, Holdings or Contura, nor was it furnished with any such evaluation or appraisal. In addition, ANR advised Moelis (and Moelis relied on the fact) that the ANR certificate of incorporation provides that the rights of the Class C-1 common stock and the Class C-2 common stock are substantially equal (other than with respect to voting rights), and such certificate of incorporation provides for the holders of the Class C-1 common stock and the holders of Class C-2 common stock to receive the same per share consideration in any merger or similar transaction. ANR also advised Moelis, and Moelis assumed with the consent of ANR’s board of directors, that Holdings has no assets or liabilities, other than its interest in shares of Class C-2 common stock. Accordingly, Moelis assumed, with the consent of ANR’s board of directors, that the Class C-1 common stock and the Class C-2 common stock are identical for purposes of its analysis and opinion.
Moelis’ opinion did not address ANR’s underlying business decision to effect the ANR merger or the relative merits of the ANR merger as compared to any alternative business strategies or transactions that might be available to ANR and did not address any legal, regulatory, environmental, tax or accounting matters. Moelis was not asked to, and Moelis did not, offer any opinion as to any terms of the merger agreement or any aspect or implication of the ANR merger, except for the fairness of the exchange ratio from a financial point of view to the holders of Class C-1 common stock. Moelis did not express any opinion as to what the value of shares of Contura common stock actually will be when issued in the ANR merger or the prices at which shares of Class C-1 common stock, Class C-2 common stock, Holdings common stock or Contura common stock may trade at any time. Moelis assumed, with the consent of ANR’s board of directors, that the shares of Contura common stock to be issued in the ANR merger will be authorized for trading on the New York Stock Exchange, the NASDAQ Global

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Market or the NASDAQ Global Select Market. In addition, for purposes of Moelis’ analyses and opinion, at the direction of ANR’s board of directors, Moelis assumed that, for U.S. federal income tax purposes, the mergers will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering its opinion, Moelis assumed, with the consent of ANR’s board of directors, that the final executed form of the merger agreement would not differ in any material respect from the draft that it reviewed, that the mergers would be consummated in accordance with its terms without any waiver or modification that could be material to its analysis, and that the parties to the merger agreement would comply with all the material terms of the merger agreement. Moelis assumed, with the consent of ANR’s board of directors, that all governmental, regulatory or other consents or approvals necessary for the completion of the mergers would be obtained, except to the extent that could not be material to Moelis’ analysis.
Moelis’ opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Moelis as of, the date thereof, and Moelis assumed no responsibility to update its opinion for developments occurring or coming to its attention after such date. Moelis noted that certain data underlying its analysis and opinion pre-dated (and/or did not reflect the impact of) recently enacted federal tax legislation, and that the financial and stock markets had been adjusting to the impacts of such legislation. Moelis expressed no opinion or view as to any potential effects of such impacts on ANR, Holdings, Contura or the mergers.
Moelis’ opinion did not address the fairness of the mergers or any aspect or implication thereof to, or any other consideration of or relating to, the holders of any class of securities, creditors or other constituencies of ANR or Holdings, other than the fairness of the exchange ratio from a financial point of view to the holders of Class C-1 common stock. Moelis did not express any opinion with respect to the form or structure of the mergers, including any agreements entered into between ANR or Holdings with any of their officers, directors or employees to repurchase securities of ANR or Holdings (each, a “Repurchase Agreement”), the fairness of the aggregate consideration to be received by any holder of Class C-1 Common Stock that is subject to a Repurchase Agreement, the allocation of the aggregate consideration to be paid by Contura in the mergers among the holders of Class C-1 common stock and the holders of Class C-2 common stock, or between ANR and Holdings (and their respective stockholders), or the relative fairness of the exchange ratio to any such stockholders or entities. Moelis also did not express any opinion as to the value of the greater voting power attributable to shares of Class C-2 common stock or any securities of Holdings (relative to the shares of Class C-1 common stock or otherwise), or as to the application of the provisions of the ANR certificate of incorporation that would permit holders of shares of Class C-2 common stock to receive securities with greater voting power than the securities issued to holders of shares of Class C-1 common stock). Moelis did not express any opinion as to the fairness of the amount or nature of any compensation to be received by any officers, directors or employees of any parties to the mergers, or any class of such persons, including under the Repurchase Agreements, relative to the exchange ratio or otherwise. Moelis’ opinion was approved by a Moelis & Company LLC fairness opinion committee.
Summary of Financial Analyses
The following is a summary of the material financial analyses presented by Moelis to the board of directors of ANR at its meeting held on April 29, 2018, in connection with its opinion. This summary describes the material analysis underlying Moelis’ opinion but does not purport to be a complete description of the analyses performed by Moelis in connection with its opinion.
Some of the summaries of financial analyses below include information presented in tabular format. In order to fully understand Moelis’ analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the analyses. Considering the data described below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of Moelis’ analyses.
For purposes of its analyses, Moelis reviewed a number of financial metrics, including the following:
•
Adjusted EBITDA-generally the amount of the relevant company’s earnings before interest, taxes, depreciation, amortization, and any one-time and non-recurring items for a specified time period as adjusted to remove the estimated impact (which, in the case of ANR and Contura, were provided by ANR management and Contura management, respectively) of expenses and credits associated with pension and other post-employment benefits, black lung and workers’ compensation.

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•
Adjusted Enterprise Value-generally the value as of a specified date of the relevant company’s outstanding equity securities (taking into account outstanding options and other securities convertible, exercisable or exchangeable into or for equity securities of the company) plus the value of its net debt (the face amount of total debt and preferred stock, liabilities relating to pension and other post-employment benefits on a tax-effected basis, black lung and workers’ compensation on a tax-effected basis, net of associated restricted cash, and book value of non-controlling interests less the amount of cash and cash equivalents, as reflected on its most recently available balance sheet). For ANR and Contura, Adjusted Enterprise Values were adjusted to include, based on publicly available information or estimates provided to Moelis by ANR and Contura, the present value of each of (i) certain of ANR’s contingent royalty payment liabilities, (ii) certain net liabilities arising from settlements relating to ANR’s and Contura’s prior respective bankruptcies, (iii) certain potential historical tax assets (as allocated to ANR and Contura by ANR management), and (iv) the release in the future of restricted cash associated with certain surety bonds.
Selected Publicly Traded Companies Analysis
Moelis performed a selected publicly traded companies analysis of each of ANR and Contura. Moelis reviewed financial and stock market information of the following selected publicly traded North American companies that extract, process and market metallurgical or thermal coal:
•
Teck Resources Ltd.
•
Peabody Energy Corporation
•
Arch Coal Inc.
•
Warrior Met Coal Inc.
•
Contura Energy Inc.
•
Ramaco Resources Inc.
•
Cloud Peak Energy Inc.
•
Corsa Coal Corp.
Moelis reviewed, among other things, Adjusted Enterprise Values of the selected publicly traded companies as a multiple of estimated Adjusted EBITDA for calendar years 2018 and 2019. Adjusted Enterprise Values used in the selected publicly traded companies analyses described below were calculated using the market price of the common stock of the selected companies listed below as of April 26, 2018. Financial data for the selected publicly traded companies, including Contura, were based on publicly available consensus research analysts’ estimates (except that estimates for Arch Coal Inc. reflected an average of estimates of selected equity research analysts that published updates following Arch Coal Inc.’s earnings announcement on April 26, 2018), public filings and other publicly available information. The Adjusted Enterprise Value to calendar year 2018 and 2019 estimated Adjusted EBITDA multiples are summarized below:
Selected Publicly Traded Company
 
Adjusted Enterprise Value
/ 2018E Adjusted EBITDA
 
Adjusted Enterprise Value
/ 2019E Adjusted EBITDA
Teck Resources Ltd.
 
4.2x
 
4.7x
Peabody Energy Corporation
 
4.1x
 
5.3x
Arch Coal Inc.
 
4.6x
 
5.0x
WarriorMet Coal Inc.
 
3.6x
 
5.7x
Contura Energy Inc.
 
3.3x
 
3.7x
Ramaco Resources Inc.
 
4.6x
 
3.5x
Cloud Peak Energy Inc.
 
5.9x
 
6.5x
Corsa Coal Corp.
 
3.4x
 
N/A

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The mean, median, high and low Adjusted Enterprise Value to Adjusted EBITDA multiples for the selected publicly traded companies were 4.2x, 4.1x, 5.9x and 3.3x, respectively, for 2018 and 4.9x, 5.0, 6.5x and 3.5x, respectively, for 2019. Moelis noted that the low end of its selected multiple ranges takes into account the trading multiples implied by Contura’s stock price and the high end of its selected multiple ranges takes into account the trading multiples implied by stock prices for Arch Coal Inc. and Warrior Met Coal Inc., companies that, like ANR and Contura, have more significant North American metallurgical coal production. Moelis applied ranges of selected multiples derived from the selected publicly traded companies of 3.25x-4.5x to 2018 estimated Adjusted EBITDA for ANR and Contura (after giving effect to ANR management’s estimate of the financial impact attributable to the expiration of ANR’s marketing arrangement with Contura) and 3.75x-5.5x to 2019 estimated Adjusted EBITDA for ANR and Contura (after giving effect to ANR management’s estimate of the financial impact attributable to the expiration of ANR’s marketing arrangement with Contura). Financial data for ANR and Contura was based on financial forecasts and other information and data provided by ANR’s management.
This analysis indicated implied per share reference ranges for ANR of approximately $24.87 to $39.39 based on 2018 estimated Adjusted EBITDA for ANR and approximately $27.08 to $45.74 based on 2019 estimated Adjusted EBITDA for ANR. This analysis indicated implied per share reference ranges for Contura of approximately $78.40 to $115.13 based on 2018 estimated Adjusted EBITDA for Contura and approximately $56.88 to $91.56 based on 2019 estimated Adjusted EBITDA for Contura.
Based on the implied per share reference ranges for ANR and Contura derived from the selected public companies analysis performed, the following implied exchange ratio reference ranges (representing the ranges determined by using (x) as the bottom end, the amount calculated by dividing lower bound of the per share reference range for ANR by the upper bound of the per share reference range for Contura and (y) as the top end, the amount calculated by dividing upper bound of the per share reference range for ANR by the lower bound of the per share reference range for Contura), as compared to the exchange ratio provided for in the merger, were indicated:
Implied Exchange Ratio Reference Ranges Based On:
 
Merger Exchange Ratio
2018E Adjusted EBITDA
0.2160x - 0.5025x
 
2019E Adjusted EBITDA
0.2958x - 0.8043x
 
0.4071x
Discounted Cash Flow Analysis
Moelis performed discounted cash flow (“DCF”) analyses of both ANR and Contura to calculate the present value of the estimated future unlevered free cash flows projected by ANR’s management to be generated by ANR and Contura.
For each of ANR and Contura, Moelis utilized a range of discount rates (based on an estimated range of weighted average cost of capital, referred to as WACC) of 9.375% to 10.875% to calculate estimated present values as of December 31, 2017 of (i) estimated after-tax unlevered free cash flows for fiscal years ending December 31, 2018 through December 31, 2022, (ii) estimated tax savings attributable to estimated utilization of net operating loss carryforwards and (iii) estimated terminal values derived by applying a range of multiples of 4.0x to 5.0x to a terminal year Adjusted EBITDA. The WACC range reflected a derived cost of equity using (i) a selected range of betas informed by selected publicly traded companies as of April 26, 2018, except that Contura’s betas were excluded given limited liquidity in its shares and ANR’s betas were excluded in light of ANR’s share reclassification announced on March 5, 2018, (ii) a selected range of debt to total capitalization ratios informed by the selected publicly traded companies (as well as ANR and Contura) and (iii) a size premium based on publicly traded companies with equity values similar to ANR and Contura. Moelis noted that data underlying the WACC calculations pre-dates (and/or does not fully reflect the impact of) recently enacted federal tax legislation. The financial data for ANR and Contura was based on financial forecasts and other information and data provided by ANR’s management.
This analysis indicated implied per share reference ranges of (x) approximately $21.20 to $28.05 for ANR and (y) approximately $59.94 to $74.98 for Contura.
Based on the implied per share reference range for ANR and the implied per share reference range for Contura derived from the respective DCF analyses performed, the following implied exchange ratio reference range (representing the range determined by using (x) as the bottom end, the amount calculated by dividing lower bound of the per share reference range for ANR by the upper bound of the per share reference range for Contura and (y) as the top end, the amount calculated by

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dividing upper bound of the per share reference range for ANR by the lower bound of the per share reference range for Contura), as compared to the exchange ratio provided for in the merger, was indicated:
Implied Exchange Ratio Reference Range
 
Merger Exchange Ratio
0.2828x - 0.4680x
 
0.4071x
Transaction Analyses
Moelis performed has/gets analyses to calculate the value accretion/ dilution implied by the mergers utilizing both DCF and trading based approaches.
DCF Based Has - Gets Analysis
The DCF based has/gets analysis illustrated a comparison of the standalone reference range per ANR share indicated by its discounted cash flow analysis with the reference range for pro forma Contura common stock adjusted by the exchange ratio and after giving effect to the consummation of the mergers, including the Synergies Estimates, estimated tax savings attributable to estimated utilization of net operating loss carryforwards and ANR’s estimates of certain transaction costs (the “Pro Forma ANR Share Value”). Moelis noted that the reference range indicated by its discounted cash flow analysis per ANR share was $21.20 to $28.05 and the reference range indicated by its discounted cash flow analysis for the Pro Forma ANR Share Value was $25.87 to $32.94.
Trading Based Has - Gets Analyses
The Trading based has/gets analysis compared the trading price of ANR shares with an illustrative trading value for pro forma Contura common stock adjusted by the exchange ratio after giving effect to the consummation of the mergers (and assuming shares of Contura common stock after giving effect to the mergers would trade at the blended trading multiples for 2018 and 2019, as the case may be, of Adjusted EBITDA for ANR and Contura (“Illustrative Pro Forma Trading Values”). Moelis reviewed the Illustrative Pro Forma Trading Values, after giving effect to certain transaction costs and with and without giving effect to the Synergies Estimates on a run-rate basis. Moelis noted that the closing trading price for ANR shares on April 26, 2018 was $22.70 and the Illustrative Pro Forma Trading Values were:
Illustrative Pro Forma
Trading Value
(2018E Adj. EBITDA)
No Synergies
 
Illustrative Pro Forma
Trading Value
(2018E Adj. EBITDA)
With Synergies
 
Illustrative Pro Forma
Trading Value
(2019E Adj. EBITDA)
No Synergies
 
Illustrative Pro Forma
Trading Value
(2019E Adj. EBITDA)
With Synergies
$23.99
 
$25.98
 
$23.99
 
$26.54
Other Information
Moelis also noted for ANR’s board of directors certain additional factors that were not considered part of Moelis’ financial analysis with respect to its opinion but were referenced for informational purposes, including, among other things:
•
Moelis reviewed the relative financial contributions of ANR and Contura to the future financial performance of the combined company on a pro forma basis based on financial forecasts and other information and data provided by ANR’s management.
•
implied historical trading ratios for ANR and Contura derived by dividing daily closing stock prices of ANR common stock and Contura common stock for the period from March 6, 2018 (the first trading day following ANR’s capital streamlining transaction) through April 26, 2018, and Moelis noted that the exchange ratios implied by the April 26 trading prices, and the 10-day, 20-day and 30-day volume weighted average prices ended April 26, 2018, were 0.3427x, 0.3537x, 0.3564x and 0.3578x, respectively, compared to the exchange ratio of 0.4071x.

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Miscellaneous
This summary of the analyses is not a complete description of Moelis’ opinion or the analyses underlying, and factors considered in connection with, Moelis’ opinion. The preparation of a fairness opinion is a complex analytical process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Moelis’ opinion. In arriving at its fairness determination, Moelis considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis. Rather, Moelis made its fairness determination on the basis of its experience and professional judgment after considering the results of all of its analyses.
No company used in the analyses described above is identical to ANR or Contura. In addition, such analyses do not purport to be appraisals, nor do they necessarily reflect the prices at which businesses or securities actually may be sold. Analyses based upon forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by such analyses. Because the analyses described above (including much of the information used therein) are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors, neither ANR nor Moelis or any other person assumes responsibility if future results are materially different from those forecast.
Except as described in this summary, ANR and its board of directors imposed no other instructions or limitations on Moelis with respect to the investigations made or procedures followed by Moelis in rendering its opinion. The exchange ratio was determined through arms’ length negotiations between ANR and Holdings, on the one hand, and Contura, on the other, and was approved by the boards of directors of ANR and Holdings. Moelis did not recommend any specific consideration to ANR or its board of directors, or that any specific amount or type of consideration constituted the only appropriate consideration for the ANR merger.
Moelis acted as financial advisor to ANR in connection with the ANR merger and will receive a fee for its services, currently estimated to be approximately $19,000,000 in the aggregate, approximately $16,000,000 of which is contingent upon the consummation of the ANR merger. Moelis also became entitled to receive fees payable upon the execution of the Merger Agreement and the delivery of the opinion in the aggregate amount of approximately $3,250,000, against which retainer fees paid under Moelis’ engagement (and prior engagements) of $200,000 were creditable. In addition, ANR agreed to indemnify Moelis for certain liabilities, including liabilities under the federal securities laws, arising out of its engagement. Moelis’ affiliates, employees, officers and partners may at any time own securities (long or short) of ANR, Holdings and Contura. Moelis noted that it had provided investment banking and other services to ANR unrelated to the ANR merger and in the future may provide such services to Contura, ANR and Holdings and has received and may receive compensation for such services. In the past two years prior to the date of its opinion, Moelis acted as financial advisor to ANR in connection with certain capital structuring transactions, for which Moelis received approximately $6.9 million in compensation.
The board of directors of ANR selected Moelis as its financial advisor in connection with the ANR merger because Moelis has substantial experience in similar transactions and familiarity with ANR. Moelis is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, strategic transactions, corporate restructurings, and valuations for corporate and other purposes.
Opinion of Holdings’ Financial Advisor
Holdings engaged BRG to serve as an independent financial advisor to Holdings’ board of directors to provide an opinion as to the fairness, from a financial point of view, of the exchange ratio to the holders of the Holdings common stock in connection with the Holdings merger.
In connection with the Holdings merger, each outstanding share of Holdings common stock, other than certain shares to be cancelled or subject to appraisal rights, will be converted into the right to receive a number of fully-paid and nonassessable shares of Contura common stock at the exchange ratio.
On April 29, 2018, at a joint meeting of ANR’s board of directors and Holdings’ board of directors held to evaluate the Merger, BRG rendered to Holdings’ board of directors an oral opinion, which was confirmed by delivery of the written opinion dated April 29, 2018, to the effect that, as of that date and based on and subject to the matters described in its opinion, the exchange ratio was fair, from a financial point of view to the holders of the Holdings common stock.

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The full text of BRG’s written opinion, dated April 29, 2018, which describes the assumptions made, procedures followed, matters considered and limitations of the review undertaken, is attached to this proxy statement as Annex C and is incorporated into this joint proxy statement and prospectus by reference. BRG’s opinion was provided to Holdings’ board of directors in connection with its evaluation of the exchange ratio from a financial point of view to the existing holders of Holdings common stock and does not address any other aspects or implications of the Holdings merger or the underlying business decision of Holdings to effect the Holdings merger, the relative merits of the Holdings merger as compared to any alternative business strategies that might exist for Holdings or the effect of any other transaction in which Holdings might engage. BRG’s opinion is not intended to be and does not constitute a recommendation to any stockholder as to how such stockholder should vote or act on any matters relating to the proposed Holdings merger.
In arriving at its opinion, BRG:
•
reviewed certain financial statements for ANR and Contura;
•
reviewed certain financial forecasts and other information and data relating to ANR which were provided to and discussed with BRG by the management of ANR, including financial forecasts relating to ANR prepared by ANR management which, among other items, assumes the expiration at the end of 2019 of a marketing agreement with Contura stipulating coal purchases at agreed upon index prices;
•
reviewed certain financial forecasts and other information and data relating to Contura, which were provided to and discussed with BRG by the management of Contura, including financial forecasts relating to Contura prepared by Contura management;
•
reviewed the draft Agreement and Plan of Merger dated April 28, 2018, by and among Contura, ANR, Holdings, MergerSub1 and MergerSub2;
•
reviewed documents related to each of ANR’s and Contura’s background;
•
held discussions with certain senior officers, directors and other representatives and advisors of Holdings, ANR and Contura concerning the businesses, operations and prospects of ANR and Contura, including with respect to certain tax benefit projections;
•
reviewed certain publicly available business and financial information relating to Holdings, ANR and Contura;
•
analyzed certain financial, stock market and other publicly available information relating to the businesses of other companies whose operations BRG considered relevant in evaluating those of ANR and Contura;
•
considered, to the extent publicly available, the financial terms of certain other M&A transactions which BRG considered relevant in evaluating the transactions contemplated by the merger agreement; and
•
conducted such other analyses and examinations and considered such other information and financial, economic and market criteria as BRG deemed to be appropriate in arriving at its opinion.
In rendering its opinion, BRG assumed and relied, without independent verification, upon the accuracy and completeness of all financial and other information and data publicly available or provided to or otherwise reviewed by or discussed with BRG and upon the assurances of the management teams of Holdings, ANR and Contura that they were not aware of any relevant information that was omitted or remained undisclosed to BRG. Management of Holdings further advised BRG that Holdings does not have financial statements, that Holdings’ only asset is its shares of Class C-2 common stock and that Holdings has no liabilities. Therefore, BRG assumed for purposes of its opinion that the ANR financial statements are representative of Holdings’ financial condition. With respect to financial forecasts and other information and data provided to or otherwise reviewed by or discussed with BRG relating to Holdings, ANR and Contura, BRG was advised by the respective management teams of Holdings, ANR and Contura, and BRG assumed, with Holdings’ consent, that the forecasts and other information and data were reasonably prepared on bases reflecting the best currently available estimates and judgments of the respective managements of Holdings, ANR, and Contura, as the case may be, as to the future financial performance of ANR and Contura. With Holdings’ consent, BRG also assumed that the financial results reflected in such financial forecasts and other information and data would be realized in the amounts and at the times projected.

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BRG further assumed, with Holdings’ consent, that the Holdings merger would be consummated in accordance with its terms, without waiver, modification or amendment of any material term, condition or agreement, and that, in the course of obtaining the necessary regulatory or third party approvals, consents, releases and waivers for the Holdings merger, no delay, limitation, restriction or condition would be imposed that would have an adverse effect on Holdings or the contemplated effect of the Holdings merger. Holdings’ representatives advised BRG, and BRG also assumed, that the final terms of the Merger Agreement would not vary materially from those set forth in the draft reviewed by BRG or otherwise described to BRG. BRG’s opinion only relates to the exchange ratio. BRG did not make, and it was not provided with, an independent evaluation or appraisal of the assets or liabilities, contingent or otherwise, of Holdings, ANR or Contura, and BRG did not make any physical inspection of the properties or assets of Holdings, ANR or Contura. In addition, BRG assumed, with Holdings’ consent, that there were no material undisclosed liabilities of Holdings, ANR or Contura for which appropriate reserves or other provisions had not been made. BRG relied, without independent verification and with Holdings’ consent, upon the assessments of Holdings’, ANR’s and Contura’s management as to the ability of Holdings to merge its capital stock.
BRG expressed no view as to, and its opinion did not address, the underlying business decision of Holdings to effect the Holdings merger, the relative merits of the Holdings merger as compared to any alternative business strategies that might exist for Holdings or the effect of any other transaction in which Holdings might engage. BRG’s opinion did not address any terms (other than the exchange ratio as expressly specified in the opinion) or other aspects or implications of the Holdings merger, including, without limitation, the form or structure of the Holdings merger. BRG expressed no view as to, and its opinion did not address, the fairness (financial or otherwise) of the amount or nature or any other aspect of any compensation to any officers, directors or employees of any parties to the Holdings merger, or any class of such persons, relative to the exchange ratio. BRG’s opinion was necessarily based on information available to BRG, and financial, stock market and other conditions and circumstances existing and disclosed to BRG, as of the date of its opinion, including assumptions as to future commodity coal prices reflected in the financial forecasts and estimates relating to ANR and Contura referred to above, which prices are subject to significant volatility and which, if different than as assumed, could have a material impact on BRG’s analyses. The credit, financial and stock markets typically experience volatility, and BRG expressed no opinion or view as to any potential effects of any such volatility in the future on Holdings, ANR and Contura or the contemplated benefits of the Holdings merger. Except as described above, none of Holdings, ANR nor Contura imposed other instructions or limitations on BRG with respect to the investigations made or procedures followed by BRG in rendering its opinion.
In preparing its opinion, BRG performed a variety of financial and comparative analyses, including those described below. The summary of these analyses is not a complete description of the analyses underlying BRG’s opinion. The preparation of a financial opinion is a complex analytical process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances; therefore, a financial opinion is not readily susceptible to summary description. BRG arrived at its ultimate opinion based on the results of all analyses undertaken by it and assessed as a whole, and did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis for purposes of its opinion. Accordingly, BRG believes that its analyses must be considered as a whole and that selecting portions of its analyses and factors or focusing on information presented in tabular format, without considering all analyses and factors or the narrative description of the analyses, could create a misleading or incomplete view of the processes underlying its analyses and opinion.
In its analyses, BRG considered industry performance, general business, economic, market and financial conditions and other matters existing as of the date of its opinion, many of which are beyond the control of ANR, Holdings and Contura. No company, business or transaction used in those analyses as a comparison is identical to ANR, Holdings or Contura, and an evaluation of those analyses is not entirely mathematical. Rather, the analyses involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the acquisition, public trading or other values of the companies or transactions analyzed.
The estimates contained in BRG’s analyses and the valuation ranges resulting from any particular analysis are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by BRG’s analyses. In addition, analyses relating to the value of businesses or securities do not necessarily purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold. Accordingly, the estimates used in, and the results derived from, BRG’s analyses are inherently subject to substantial uncertainty.

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The exchange ratio was determined through analyses performed by ANR, Holdings and their advisors, and the decision to proceed with the Holdings merger was solely that of Holdings’ board of directors. BRG’s opinion was only one of many factors considered by Holdings’ board of directors in their evaluation of the Holdings merger and should not be viewed as determinative of the views of Holdings or its management with respect to the Holdings merger or the exchange ratio provided for in the Merger Agreement.
The following is a summary of the material financial analyses presented to Holdings’ board of directors in connection with BRG’s opinion. The financial analyses summarized below include information presented in tabular format. In order to fully understand BRG’s financial analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses. Considering the data below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of BRG’s financial analyses.
Discounted Cash Flow Analysis
To calculate the estimated enterprise value of each of ANR and Contura, BRG performed a discounted cash flow analysis of each company by discounting to April 27, 2018 the unlevered, after-tax projected free cash flows of each of ANR and Contura from the fiscal year ending December 31, 2018 through the fiscal year ending December 31, 2022, based on internal estimates prepared by ANR’s and Contura’s management. BRG utilized discount rates from 10.0 percent to 12.0 percent in the case of ANR and discount rates from 11.0 percent to 13.0 percent in the case of Contura, reflecting BRG’s estimates of each of ANR’s and Contura’s weighted average cost of capital. BRG estimated the discount rates by application of the Capital Asset Pricing Model, which uses inputs such as each company’s i) target capital structure, ii) cost of debt, iii) tax rate and iv) beta and financial metrics reflecting the broader financial markets. The estimated terminal value for each of ANR and Contura was calculated by applying a perpetuity growth rate of 2.0 percent to the estimated terminal unlevered free cash flow of each company. The perpetuity growth rate was estimated by BRG utilizing its professional judgment and experience, taking into account each company’s forecasts and market expectations regarding long-term real growth in the industry. The present values of the interim cash flows were then added to the present value of the terminal value to estimate the enterprise value of ANR and Contura. BRG then calculated a range of implied equity values for each of ANR and Contura by making the following adjustments to each company’s estimated enterprise value: (i) subtracting net debt as of December 31, 2017, (ii) subtracting other liabilities and (iii) adding other assets. As summarized below, BRG then used the implied equity values of ANR and Contura to calculate the respective per share values of between $18.87 and $26.06 for the Holdings common stock and between $64.29 and $79.64 for the Contura common stock. Additionally, BRG utilized the same methodology as described above and incorporated potential tax benefits associated with some of the other liabilities to derive a tax adjusted implied per share value of between $24.17 and $31.33 for the Holdings common stock and between $65.25 and $80.60 for the Contura common stock.
 
 
Discounted Cash Flow Analysis
Range
 
Low
 
High
Unadjusted
 
 
 
 
Contura indicated Price Per Share (Rounded)
 
$
64.29

 
$
79.64

Holdings indicated Price Per Share (Rounded)
 
18.87

 
26.06

 
 
 
 
 
Tax-Adjusted
 
 
 
 
Contura indicated Price Per Share (Rounded)
 
$
65.25

 
$
80.60

Holdings indicated Price Per Share (Rounded)
 
24.17

 
31.33


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As summarized below, BRG then determined the implied range of exchange ratios by comparing the low per share estimate of Contura to the high per share estimate of Holdings and the high per share estimate of Contura to the low per share estimate of Holdings:
 
 
Implied BRG Range
 
Exchange ratio
Holdings common stock Merger exchange ratio (unadjusted)
 
0.2370x - 0.4054x
 
0.4071x
Holdings common stock Merger exchange ratio (tax adjusted)
 
0.2998x - 0.4801x
 
0.4071x
Selected Public Companies Analysis
BRG performed a publicly-traded company analysis of each of ANR and Contura in which BRG reviewed publicly available financial and stock market information for their peers and then selected six publicly-traded companies in the coal industry with operations in the United States. These companies were:
•
Arch Coal, Inc.
•
CONSOL Energy Inc.
•
Contura Energy, Inc.
•
Corsa Coal Corp.
•
Ramaco Resources, Inc.
•
Warrior Met Coal, Inc.
BRG reviewed, among other things, the enterprise values of the selected companies (calculated as equity value based on closing stock prices on April 26, 2018 plus debt, less cash and other adjustments) as a multiple of LTM EBITDA and calendar years 2018 and 2019 estimated EBITDA. Publicly available information regarding the selected public companies were obtained from SEC filings, CapitalIQ (a data source containing historical and estimated financial data), and other publicly available information and is shown below:
 
 
EBITDA Multiple
Company Name
 
LTM
 
2018E
 
2019E
Arch Coal, Inc.
 
4.1x
 
4.3x
 
4.9x
Contura Energy, Inc.
 
3.7x
 
3.4x
 
3.8x
Warrior Met Coal, Inc.
 
3.2x
 
3.1x
 
4.8x
Corsa Coal Corp.
 
2.1x
 
3.1x
 
2.9x
Ramaco Resources, Inc.
 
nm
 
4.2x
 
2.8x
CONSOL Energy Inc.
 
7.5x
 
6.7x
 
6.8x
The financial data of ANR and Contura were based on internal estimates of ANR’s and Contura’s respective management teams and historical performance. BRG made qualitative judgments based on its experience and professional judgment concerning differences between the business, financial and operating characteristics of ANR, Contura and the selected public companies and selected a range of LTM, calendar year 2018 and calendar year 2019 EBITDA multiples of between 3.25x and 4.25x to derive an implied range of enterprise values of ANR and Contura. BRG then calculated a range of implied equity values for ANR and Contura by making the following adjustments to each company’s estimated range of enterprise values: (i) subtracting net debt as of December 31, 2017, (ii) subtracting other liabilities and (iii) adding other assets. As summarized below, BRG then used the implied equity values of ANR and Contura to calculate the respective per share values of between $20.22 and $25.61 for the Holdings common stock and between $62.37 and $74.85 for the Contura common stock. Additionally, BRG utilized the same methodology as described above and incorporated potential tax benefits associated with

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some of the other liabilities to derive a tax adjusted implied per share value of between $25.51 and $30.88 for the Holdings common stock and between $63.33 and $75.81 for the Contura common stock.
 
 
Selected Public Companies Analysis
Range
 
Low
 
High
Unadjusted
 
 
 
 
Contura indicated Price Per Share (Rounded)
 
$
62.37

 
$
74.85

Holdings indicated Price Per Share (Rounded)
 
20.22

 
25.61

 
 
 
 
 
Tax-Adjusted
 
 
 
 
Contura indicated Price Per Share (Rounded)
 
$
63.33

 
$
75.81

Holdings indicated Price Per Share (Rounded)
 
25.51

 
30.88

As summarized below, BRG then determined the implied range of exchange ratios below by comparing the low per share estimate of Contura to the high per share estimate of Holdings and the high per share estimate of Contura to the low per share estimate of Holdings:
 
 
Implied BRG Range
 
Exchange ratio
Holdings common stock Merger exchange ratio (unadjusted)
 
0.2702x - 0.4107x
 
0.4071x
Holdings common stock Merger exchange ratio (tax adjusted)
 
0.3365x - 0.4876x
 
0.4071x
Selected Precedent Transactions Analysis
BRG performed a selected precedent transactions analysis of ANR and Contura in which BRG reviewed, to the extent publicly available, information relating to the eight selected completed transactions below. These transactions involved companies in the coal industry, which is the industry in which ANR and Contura operate. BRG reviewed, among other things, transaction values (calculated as the equity value implied for the target company based on the consideration payable or paid in the selected transaction, plus debt, less cash and other adjustments) as a multiple of the target company’s LTM EBITDA. Financial data of the selected transactions were based on publicly available information at the time of close of the relevant transaction.
Closed Date
 
Acquirer
 
Target
 
EBITDA Multiple
3/29/2018
 
Coronado Coal LLC
 
Wesfarmers Curragh Pty Ltd.
 
na
9/1/2017
 
Yancoal Australia Ltd
 
Coal & Allied Industries Ltd.
 
na
3/31/2016
 
Senior Lenders of Walter Energy, Inc.
 
Walter Energy, Inc., Substantially All Assets
 
na
3/23/2016
 
PT Wahana Sentosa Cemerlang
 
PT Baramulti Suksessarana Tbk
 
4.4x
12/22/2015
 
Seneca Coal Resources, LLC
 
Cliffs North American Coal LLC
 
na
10/212015
 
ENEA S.A.
 
Lubelski Wegiel Bogdanka S.A.
 
4.0x
8/1/2015
 
Westmoreland Resource Partners, LP
 
Westmoreland Kemmerer, LLC
 
6.4x
7/15/2015
 
Argyle Street Management Limited
 
Asia Resource Minerals plc (nka: Asia Resource Minerals Limited)
 
5.7x
Financial data of ANR and Contura were based on information provided to BRG by ANR and Contura, respectively. BRG made qualitative judgments based on its experience and professional judgment concerning differences between the business, financial and operating characteristics of ANR, Contura and the targets of the selected precedent transactions and selected a range of LTM EBITDA multiples of between 3.50x and 4.00x to derive an implied range of enterprise values of ANR and Contura. BRG then calculated a range of implied equity values for ANR and Contura by making the following

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adjustments to each company’s estimated range of enterprise values: (i) subtracting net debt as of December 31, 2017, (ii) subtracting other liabilities and (iii) adding other assets. As summarized below, BRG then used the implied equity values of ANR and Contura to calculate the respective per share values of between $22.92 and $28.76 for the Holdings common stock and between $70.05 and $82.52 for the Contura common stock. Additionally, BRG utilized the same methodology as described above and incorporated potential tax benefits associated with some of the other liabilities to derive a tax adjusted implied per share value of between $28.19 and $34.01 for the Holdings common stock and between $71.01 and $83.48 for the Contura common stock.
 
 
Selected Precedent Transactions Analysis
Range
 
Low
 
High
Unadjusted
 
 
 
 
Contura indicated Price Per Share (Rounded)
 
$
70.05

 
$
82.52

Holdings indicated Price Per Share (Rounded)
 
22.92

 
28.76

 
 
 
 
 
Tax-Adjusted
 
 
 
 
Contura indicated Price Per Share (Rounded)
 
$
71.01

 
$
83.48

Holdings indicated Price Per Share (Rounded)
 
28.19

 
34.01

As summarized below, BRG then determined the implied range of exchange ratios below by comparing the low per share estimate of Contura to the high per share estimate of Holdings and the high per share estimate of Contura to the low per share estimate of Holdings:
 
 
Implied BRG Range
 
Exchange ratio
Holdings common stock Merger exchange ratio (unadjusted)
 
0.2777x - 0.4106x
 
0.4071x
Holdings common stock Merger exchange ratio (tax adjusted)
 
0.3377x - 0.4790x
 
0.4071x
Trading Price Analysis
BRG performed a trading price analysis in estimating the relative valuation of Holdings’ and Contura’s capital stock. BRG reviewed market capitalization implied by the publicly traded shares of Holdings, ANR and Contura as of April 26, 2018 and at a 1-month volume weighted average price (“VWAP”), 3-month VWAP and 6-month VWAP. As shown below, BRG then used the implied equity values of ANR and Contura to calculate the respective per share values of Holdings’ and Contura’s existing classes of capital stock.
 
 
Trading Price Analysis
Range
 
Low
 
High
Unadjusted
 
 
 
 
Contura Indicated Price Per Share (Rounded)
 
$
66.24

 
$
66.33

Holdings Indicated Price Per Share (Rounded)
 
22.60

 
23.88

Based on implied per share values of the existing classes of capital stock of Holdings and Contura, calculated as described above, BRG calculated the following implied range of exchange ratios:
 
 
Implied BRG Range
 
Exchange ratio
Holdings common stock Merger exchange ratio
 
0.3412x - 0.3601x
 
0.4071x

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Relative Contribution Analysis
BRG reviewed the relative contributions of ANR and Contura to the combined tons of coal sold, total sales, gross profit and EBITDA for fiscal year ended December 31, 2017 and projected for calendar years 2018 to 2022 based on estimates provided by ANR and Contura’s respective management teams.
 
 
Contribution
 
Asset Contribution
 
 
ANR
 
Contura
 
Combined
 
ANR
 
Contura
 
 
$ in millions
Volume/Tons Sold (000’s)
2017
14,963

 
15,657

 
30,620

 
49
%
 
51
%
 
2018E
14,410

 
16,102

 
30,512

 
47
%
 
53
%
 
2019E
14,681

 
15,924

 
30,604

 
48
%
 
52
%
 
2020E
14,681

 
15,897

 
30,577

 
48
%
 
52
%
 
2021E
14,681

 
15,566

 
30,246

 
49
%
 
51
%
 
2022E
14,681

 
16,409

 
31,090

 
47
%
 
53
%
Total Sales
2017
$
1,271

 
$
1,650

 
$
2,921

 
44
%
 
56
%
 
2018E
1,222

 
1,454

 
2,676

 
46
%
 
54
%
 
2019E
1,144

 
1,262

 
2,406

 
48
%
 
52
%
 
2020E
1,087

 
1,186

 
2,273

 
48
%
 
52
%
 
2021E
1,078

 
1,169

 
2,247

 
48
%
 
52
%
 
2022E
1,078

 
1,207

 
2,285

 
47
%
 
53
%
Gross Profit
2017
$
294

 
$
278

 
$
571

 
51
%
 
49
%
 
2018E
291

 
358

 
649

 
45
%
 
55
%
 
2019E
266

 
250

 
516

 
52
%
 
48
%
 
2020E
215

 
200

 
414

 
52
%
 
48
%
 
2021E
207

 
192

 
399

 
52
%
 
48
%
 
2022E
207

 
225

 
432

 
48
%
 
52
%
Adjusted EBITDA
2017
$
258

 
$
251

 
$
509

 
51
%
 
49
%
 
2018E
 
 
315

 
559

 
44
%
 
56
%
 
2019E
 
 
209

 
432

 
52
%
 
48
%
 
2020E
 
 
157

 
329

 
52
%
 
48
%
 
2021E
 
 
150

 
314

 
52
%
 
48
%
 
2022E
 
 
183

 
348

 
47
%
 
53
%
BRG then compared the implied relative contribution percentages described above for ANR to the consolidated 46.5% pro-forma ownership of the combined company by the common stock holders of ANR and Holdings, pursuant to the terms of the Merger agreement.
Miscellaneous
Under the terms of BRG’s engagement, Holdings has agreed to pay BRG a fixed fee of $500,000 for its financial advisory services in connection with the Holdings merger, 50% of which was payable upon execution of BRG’s engagement letter and the balance of which was payable upon BRG issuing its opinion, regardless of the conclusion reached therein. Holdings also has agreed to reimburse BRG for reasonable and documented out-of-pocket expenses including but not limited to the fees and expenses of counsel, costs of reproduction, typing, computer usage, any applicable sales or excise taxes and other direct expenses, including travel incurred by BRG in connection with the engagement.

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In the two years preceding the date of BRG’s opinion, BRG and its affiliates have provided services to ANR and Holdings unrelated to the mergers and has received $375,000 in compensation for those services, plus reimbursement of its expenses. BRG and its affiliates are not aware of any upcoming opportunities to provide services to ANR or Holdings unrelated to the proposed Holdings merger. BRG and its affiliates have not provided services to Contura in the past and are not aware of any upcoming opportunities to provide services to Contura.
Holdings selected BRG as its financial advisor in connection with the Holdings merger based on BRG’s reputation, experience and familiarity with ANR’s business. BRG is an internationally recognized financial advisory and consulting firm and is regularly engaged to issue financial opinions in connection with mergers, acquisitions, recapitalizations, leveraged buyouts and spinoffs, and for other purposes. The issuance of BRG’s opinion was authorized by BRG’s fairness opinion committee.
Certain Unaudited Prospective Financial Information Prepared by ANR
ANR does not, as a matter of course, make public forecasts as to future performance, earnings or other results for extended periods of time; and forecasts are of particular concern to ANR due to, among other reasons, the unpredictability, uncertainty and subjectivity of the underlying assumptions and estimates. In connection with Alpha’s evaluation of potential strategic transactions, including the proposed mergers, ANR’s management prepared non-public, internal financial forecasts regarding ANR’s anticipated future operations for the fiscal years ending December 31, 2018 through December 31, 2022 (the “ANR Projections”). The ANR Projections were provided to the ANR board of directors, the Holdings board of directors, the Contura board of directors and ANR’s and Holdings’ financial advisors (as well as to other potential acquirers and strategic partners) in connection with their respective evaluation of the proposed mergers. ANR has included below a summary of the ANR Projections. Prospective financial information was not separately prepared for Holdings because Holdings’ only asset is its interest in Class C-2 common stock of ANR and it does not have any operations or material liabilities.
The ANR board of directors, the Holdings board of directors and ANR’s and Holding’s financial advisors also reviewed the Contura Base Case (as defined on page 125) as provided to Alpha by the management of Contura. In order to assist the ANR board of directors and the Holdings board of directors in their consideration of the terms of the mergers, ANR management adjusted the revenue and EBITDA set forth in the Contura Base Case to reflect ANR management’s belief, based on discussions with coal marketing companies, that upon the expiration of the coal marketing agreement between ANR and Contura at the end of 2019, the contract could be renegotiated (such adjusted projections, the “Adjusted Contura Projections”). Both the Contura Base Case and the Adjusted Contura Projections were provided to Moelis and BRG in connection with their respective consideration and evaluation of the mergers. The Contura Base Case and the Adjusted Contura Projections are described as below.
The ANR Projections and the Adjusted Contura Projections were not prepared for the purpose of public disclosure, nor were they prepared in compliance with published guidelines of the SEC, the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of financial forecasts or GAAP. No independent registered public accounting firm or independent auditor has examined, compiled or otherwise performed any procedures with respect to the ANR Projections or the Adjusted Contura Projections. The reports of the independent auditors and independent registered public accounting firm included in this joint proxy statement and prospectus relate to ANR’s and Contura’s historical financial information, as applicable, and do not extend to the ANR Projections or the Adjusted Contura Projections, and should not be read to do so. The ANR Projections and the Adjusted Contura Projects were based on internal management reporting that may differ from Alpha’s and Contura’s external public reporting.
The ANR Projections and the Adjusted Contura Projections are not being included in this joint proxy statement and prospectus to influence your decision whether to vote for the proposals or any other decision with respect to the mergers, including whether to seek appraisal rights; rather, the summary is being included in this joint proxy statement and prospectus because the ANR Projection and the Adjusted Contura Projections were provided by ANR and Holdings to their respective boards of directors and financial advisors, and, in the case of the ANR Projections, also to Contura and its financial advisor.
Because these internal forecasts were developed for ANR and Contura on a standalone basis without giving effect to the mergers, these internal forecasts do not give effect to the mergers or any changes to ANR’s or Contura’s operations or

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strategy that may be implemented after the completion of the mergers, including any potential synergies realized as a result of the mergers, or to any costs related to, or that may arise in connection with, the mergers.
While presented with numeric specificity, the ANR Projections and the Adjusted Contura Projections were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of ANR’s or Contura’s management, as applicable. Important factors that may affect actual results and cause the internal financial forecasts to not be achieved include risks and uncertainties relating to ANR’s and Contura’s businesses, industry performance, commodity price trends, the regulatory environment, general business and economic conditions, tariffs, quotas and trade agreements and other factors described under the sections entitled “Cautionary Statement Regarding Forward Looking Statements” beginning on page 66 and “Risk Factors” beginning on page 34. Because the forecasts cover multiple years, this information by its nature becomes less meaningful and predictive with each successive year. The ANR Projections and the Adjusted Contura Projections were prepared based on information ANR’s or Contura’s management had at the time of preparation in April 2018 and reflect factors and assumptions that are subject to change and do not necessarily reflect current factors and assumptions that ANR’s management may have about ANR’s businesses. As a result, actual results may differ materially from these internal financial forecasts. The inclusion of these internal forecasts in this joint proxy statement and prospectus should not be regarded as an indication that Contura, ANR, Holdings or any other recipient of the financial forecasts considered, or now considers, these forecasts to be material or necessarily predictive of future results.
In light of the foregoing factors and the uncertainties inherent in the prospective information, stockholders are cautioned not to place undue, if any, reliance on the prospective information included in this joint proxy statement and prospectus.
None of Contura, ANR, Holdings or their respective affiliates, advisors, officers, directors or other representatives can provide any assurance that actual results will not differ from the ANR Projections, and none of them undertakes any obligation to update, or otherwise revise or reconcile, these internal financial forecasts to reflect circumstances existing after March 2018 or to reflect the occurrence of subsequent events even in the event that any or all of the factors or assumptions underlying the forecasts are shown to be in error. None of Contura, ANR, Holdings or their respective affiliates, advisors, officers, directors or representatives has made or makes any representation to any stockholder or other person that the forecasted results can or will be achieved. Neither ANR nor Holdings has made any representation to Contura, in the merger agreement or otherwise, concerning the ANR Projections.
The prospective financial information of ANR referred to as the ANR Projections included the following estimates of ANR’s future performance and cash flows:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue (1)
$
1,188

 
$
1,110

 
$
1,087

 
$
1,078

 
$
1,078

Gross Profit (2)
257

 
232

 
215

 
207

 
207

Adjusted EBITDA (non-GAAP) (3)
210

 
189

 
172

 
164

 
164

Free Cash Flow (4)
172

 
142

 
73

 
65

 
64

______________
(1)
ANR’s management assumed that the marketing agreement between ANR and Contura would either expire at the end of 2019 or be renegotiated, resulting in an $8 per ton benefit to ANR related to the volume sold by Contura, beginning in 2020.
(2)
Gross profit represents total revenue, less cash costs of production.
(3)
Adjusted EBITDA represents net income before interest, taxes, depreciation and amortization, plus market-to-market adjustments and accretion reduced by asset retirement obligations cash settlements.
(4)
Free Cash Flow represents cash flows from operating activities (including cash interest), less the amount of capital expenditures and contingent royalty payments and mitigation settlement payments, plus the amount of surety bond restricted cash released to ANR.

As described above, ANR’s management adjusted the Contura Base Case to reflect an assumption that the marketing agreement between ANR and Contura would either expire at the end of 2019 or be renegotiated, resulting in the exclusion of $8 per ton from Contura’s EBITDA beginning in 2020. The following table sets forth estimates of Contura’s future EBITDA, as adjusted to reflect the foregoing assumption. While the ANR Projections include negative adjustments to EBITDA reflecting estimates of future asset retirement obligations cash settlements, the Contura Base Case and the Adjusted Contura Projections do not include corresponding adjustments. The amounts of these asset retirement obligations cash settlements for

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Contura during the forecast period are approximately $7 million in 2018, $5 million in 2019, $4 million in 2020, $2 million  in 2021 and $1 million in 2022.
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Adjusted EBITDA (non-GAAP) (1)
349

 
243

 
157

 
150

 
183

______________
(1)    EBITDA represents net income before interest, taxes, depreciation and amortization, plus mark-to-market adjustments and accretion.

Opinion of Contura’s Financial Advisor
Ducera was retained by Contura to act as its financial advisor in connection with the mergers. Contura selected Ducera to act as its financial advisor based on its financial expertise and judgment, its relationship with Contura since Contura’s formation by the senior secured lenders of Alpha Natural Resources, Inc. (“Predecessor Alpha”) and Ducera’s understanding of Contura’s and Alpha’s businesses and the industries in which they operate, including Ducera’s familiarity with certain assets Contura purchased from Predecessor Alpha as part of Predecessor Alpha’s 2015 Chapter 11 restructuring, and Ducera’s familiarity with certain assets owned by ANR. At the April 29, 2018 meeting of the Contura board of directors, Ducera delivered its oral opinion to the Contura board of directors, which was subsequently confirmed in writing, to the effect that, as of the date of such opinion, and subject to the assumptions, limitations, qualifications and conditions described in such opinion, the exchange ratio was fair, from a financial point of view, to Contura.
The full text of the written opinion of Ducera, dated as of April 29, 2018, is attached as Annex D to this joint proxy statement and prospectus. Ducera has consented to the disclosure of its opinion in this joint proxy statement and prospectus. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications, conditions and limitations on the scope of the review undertaken by Ducera in rendering its opinion. Ducera’s opinion is directed to the Contura board of directors and addresses only the fairness from a financial point of view of the exchange ratio to Contura. It does not constitute a recommendation to any holder of Contura common stock as to how to vote in connection with the mergers or whether to take any other action with respect to the mergers. The summary of the opinion of Ducera set forth below is qualified in its entirety by reference to the full text of the opinion, which Contura stockholders are encouraged to read carefully and in its entirety.
In connection with rendering its opinion, Ducera, among other things:
•
reviewed a draft of the merger agreement dated as of April 27, 2018;
•
reviewed certain publicly available financial statements and other business and financial information relating to Contura, ANR and Holdings which Ducera believed to be relevant, including publicly available research analysts’ reports;
•
reviewed certain non-public historical financial statements and other non-public historical financial and operating data relating to Contura prepared and furnished to Ducera by Contura’s management;
•
reviewed certain non-public historical financial statements and other non-public historical financial and operating data relating to ANR prepared by ANR and furnished to Ducera by Contura’s management;
•
reviewed certain non-public historical financial statements and other non-public historical financial and operating data relating to Holdings prepared by ANR and furnished to Ducera by Contura’s management;
•
reviewed certain non-public projected financial data relating to Contura prepared and furnished to Ducera by Contura’s management;
•
reviewed certain non-public projected financial data relating to ANR prepared by ANR and furnished to Ducera by Contura’s management;

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•
reviewed and discussed the past and current business, operations, current financial condition and financial projections of Contura and ANR with Contura’s management (including their views on the amounts, timing, risks, achievability and uncertainties of attaining such projections);
•
reviewed the reported prices and the historical trading activity of Contura Common Stock and ANR Class C-1 common stock and compared such prices with those of securities of certain publicly traded companies which Ducera believed to be relevant;
•
reviewed certain non-public estimates of tax refunds allocable to ANR based on analysis and information furnished to Ducera by Contura’s management;
•
compared the financial performance of Contura and ANR and their respective stock market trading multiples with those of certain other publicly traded companies which Ducera believed to be relevant;
•
reviewed estimates of synergies anticipated by Contura’s management to result from the mergers; and
•
performed such other studies, analyses and examinations and considered such other factors which Ducera believed to be appropriate.
In arriving at its opinion, Ducera assumed and relied upon, without undertaking any independent verification of, the accuracy and completeness of all of the financial and other information supplied or otherwise made available to, discussed with, or reviewed by Ducera (including information that is available from generally recognized public sources), and Ducera assumes no liability therefor. Ducera further assumed, with Contura’s consent, that all of the information furnished by the management of Contura for purposes of Ducera’s analysis was accurate as of the date of its opinion (except to the extent superseded by other information provided prior to the date of its opinion) and did not contain any material omission or misstatement of material facts. With respect to the projected financial data of Contura and ANR referred to above, Ducera assumed, with Contura’s consent, that such data had been reasonably prepared on bases reflecting the best currently available estimates and good faith judgments of the management of Contura and ANR, respectively, as to the future financial performance of Contura and ANR, respectively. Ducera expressed no view as to any projected financial data relating to Contura or ANR, or on the assumptions on which they are based (including in the financial projections set forth in “The Mergers — Certain Unaudited Prospective Financial Information Prepared by Contura” and “The Mergers — Certain Unaudited Prospective Financial Information Prepared by ANR” included elsewhere in this joint proxy statement and prospectus). Because Ducera was informed that Holdings is a holding company with its only asset being shares of Class C-2 common stock of ANR that it holds, Ducera did not undertake a separate analysis of Holdings.
For purposes of rendering its opinion, Ducera assumed, in all respects material to its analysis, that the final executed merger agreement would not differ from the draft merger agreement reviewed by Ducera, and that all conditions to the consummation of the mergers would be satisfied without material waiver, modification or delay. Ducera further assumed that all governmental, regulatory or other consents, approvals or releases necessary for the consummation of the mergers would be obtained without any material delay, limitation, restriction or condition that would have an adverse effect on Contura or the consummation of the mergers.
Ducera did not make, nor assume any responsibility for making, any independent valuation or appraisal of Contura’s assets or liabilities (including any contingent, derivative or off-balance-sheet assets and liabilities), nor was Ducera furnished with any such valuations or appraisals, nor did Ducera evaluate Contura’s solvency or fair value under any state or federal laws relating to bankruptcy, insolvency or similar matters. Ducera’s opinion is necessarily based upon information made available to it as of the date its opinion was rendered and financial, economic, market and other conditions as they existed and could be evaluated on such date. Subsequent developments may affect Ducera’s opinion and the assumptions used in preparing it, and Ducera does not have any obligation to update, revise or reaffirm its opinion.
Ducera was not asked to pass upon, and expressed no opinion with respect to, any matter other than the fairness of the exchange ratio, from a financial point of view, to Contura, as of the date of its opinion. Ducera was not asked to express, and Ducera did not express, any view on, and Ducera’s opinion did not address, the fairness of the mergers to, or any consideration received in connection therewith by, the holders of any of Contura’s other securities, creditors or other constituencies, nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of Contura’s officers, directors or employees, or any class of such persons, whether relative to the exchange ratio or otherwise, nor as to

114


the fairness of any other term of the merger agreement. Ducera’s opinion did not address the relative merits of the mergers as compared to other business or financial strategies that might be available to Contura, nor did it address the underlying business decision to engage in the mergers. Ducera was not authorized to solicit, and did not solicit, interest from any third party with respect to the acquisition of any or all Contura common stock or any business combination or other extraordinary transaction involving Contura. Ducera’s opinion did not constitute a recommendation to the Contura board of directors or to any other persons in respect of the mergers, including as to how any holder of shares of Contura common stock should vote or act in respect of the mergers. Ducera expressed no opinion as to the price at which shares of Contura common stock will trade at any time. Ducera was not asked to pass upon, and expressed no opinion with respect to, any tax or other consequences that may result from the mergers. Ducera does not have legal, regulatory, accounting or tax expertise and assumed the accuracy and completeness of Contura’s and its advisors’ assessments with respect to legal, regulatory, accounting and tax matters.
In the ordinary course of business, Ducera and its affiliates provide investment banking and other advisory services to a wide range of entities and individuals, domestically and internationally, from which conflicting interests or duties may arise. In the ordinary course of such activities, Ducera and its affiliates may actively trade or otherwise effect transactions, for its own account and for the accounts of its clients, in debt or equity securities, or related derivative securities, or financial instruments (including bank loans or other obligations) of Contura, ANR or Holdings or their respective affiliates, and accordingly may at any time hold a long or short position in such securities or instruments.
The issuance of Ducera’s opinion was approved by the fairness opinion committee of Ducera in accordance with Ducera’s procedures for such opinions.
Under the terms of its engagement letter, Ducera provided Contura with financial advisory services and a financial opinion in connection with the mergers, and Contura agreed to pay Ducera (i) an opinion fee of $1,000,000, paid upon delivery of its opinion letter, and (ii) a transaction fee of (x) $12,500,000, contingent upon the closing of the mergers (against which the opinion fee and up to $800,000 of the Monthly Fee (as defined below) will be credited) or (y) to the extent that the mergers are not completed and Contura is entitled to any payment in connection therewith, 15% of such payment. Contura has also agreed to reimburse Ducera’s reasonable and documented out-of-pocket expenses, including reasonable and documented fees and expenses of external legal counsel, incurred in connection with Ducera’s engagement. In addition, Contura has agreed to indemnify Ducera, its affiliates, their respective members, managers, directors, officers, partners, agents and employees, and any controlling person of Ducera and its affiliates, against certain liabilities and expenses relating to or arising out of Ducera’s engagement.
Prior to its engagement in connection with the proposed mergers, Ducera and its affiliates provided financial advisory services to Contura. Under the terms of its engagement letter for such financial advisory services, Contura agreed to pay Ducera a monthly cash fee of $100,000 per month (the “Monthly Fee”). Should the mergers be consummated, such monthly cash fee shall be replaced with a quarterly cash fee of $50,000. In the two years prior to the date of the Ducera opinion, Ducera received $1,750,000 from Contura in connection with such services. In the two years prior to the date of the Ducera opinion, Ducera did not receive fees for services rendered to ANR, Holdings, Predecessor Alpha or any of their respective affiliates. Ducera and its affiliates may provide financial or other services to Contura, ANR or their respective affiliates in the future and in connection with any such services Ducera may receive compensation.
Summary of Material Financial Analyses of Ducera Securities LLC
The following is a summary of the material financial analyses presented by Ducera to the Contura board of directors and that were used in connection with rendering the opinion described above. In accordance with customary investment banking practice, Ducera employed generally accepted valuation methods in reaching its opinion. The following is a summary of the material financial analyses utilized by Ducera. The summary does not purport to be a complete description of the financial analyses performed by Ducera, nor does the order in which the analyses are described represent the relative importance or weight given to the analyses by Ducera. Some of the summaries of the financial analyses include information presented in tabular format. The tables are not intended to stand alone and, in order to fully understand Ducera’s financial analyses, the tables must be read together with the full text of each summary. Considering the data set forth in the tables without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of Ducera’s financial analyses. Except as otherwise noted, all

115


quantitative information, to the extent it is based on market data, is based on market data as it existed on or before April 27, 2018, the last trading day before the opinion was rendered, and is not necessarily indicative of current market conditions.
In rendering its opinion, Ducera considered financial projections prepared by the management of Contura or prepared by the management of ANR and provided by the management of Contura and described above. For more information about the financial projections, see the sections entitled “The Mergers—Certain Unaudited Prospective Financial Information Prepared by Contura” and “The Mergers—Certain Unaudited Prospective Financial Information Prepared by ANR” in this joint proxy statement and prospectus.
Ducera’s Financial Analysis of ANR (ANR Projections)
Publicly Traded Companies Valuation Analysis
Ducera performed a publicly traded companies valuation analysis on ANR, which attempts to provide an implied value of a company by comparing it to similar companies that are publicly traded. Ducera compared certain of ANR’s financial information with comparable publicly available estimates for companies in the coal production industry with operations and businesses that, for purposes of Ducera’s analysis, may be considered similar to ANR’s based on business sector participation, financial and other metrics and operating characteristics and products (which we refer to as the “ANR Selected Companies”), specifically:
•
Contura
•
Peabody Energy
•
Arch Coal
•
Alliance Resource Partners
•
Consol Energy
•
Cloud Peak Energy
•
Warrior Met Coal
•
Ramaco Resources
•
Corsa Coal
No company utilized in the publicly traded companies valuation analysis is identical to ANR. In evaluating comparable companies, Ducera made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond ANR’s and Ducera’s control, such as the impact of competition on ANR’s businesses and the industry generally, industry growth and the absence of any adverse material change in ANR’s financial condition and prospects or the industry, or in the financial markets in general. Mathematical analysis (such as determining the average or median) is not in itself a meaningful method of using comparable company data.
For each ANR Selected Company, Ducera calculated the multiples of the companies’ enterprise value to estimated EBITDA for each of the fiscal years 2018, 2019 and 2020. Estimated EBITDA was obtained from consensus estimates from FactSet, except that the Contura Management Case projections, adjusted to allocate $5 per ton of trading and logistics margin to the benefit of ANR for fiscal years 2018, 2019 and 2020, were used for that of Contura. From the range of multiples for the ANR Selected Companies, Ducera, using its professional judgment, selected a range of 3.5x to 4.5x for fiscal year 2018, 4.5x to 5.5x for fiscal year 2019 and 5.25x to 6.25x for fiscal year 2020. Ducera then applied these ranges of multiples to the estimated EBITDA of ANR based on the ANR Adjusted Projections (as defined on page 124) for the same calendar years, in each case using (i) the assumption that $5 per ton of Contura’s trading and logistics margin is allocated to ANR and (ii) the assumption that $8 per ton of Contura’s trading and logistics margin is allocated to ANR. This analysis implied the following ranges of value per share of ANR common stock:

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Range of Implied ANR Share Prices - ANR Projections
$5/Ton T&L Margin
 
2018E EBITDA
 
$31.70 - $42.11
 
2019E EBITDA
 
$37.78 - $47.22
 
2020E EBITDA
 
$32.80 - $39.95
$8/Ton T&L Margin
 
2018E EBITDA
 
$32.92- $43.91
 
2019E EBITDA
 
$39.58 - $49.61
 
2020E EBITDA
 
$35.04 - $42.77
Discounted Cash Flow Analysis
Ducera calculated a range of equity values per share for ANR common stock based on a discounted cash flow analysis to value ANR as a standalone entity. Ducera utilized ANR Adjusted Projections as prepared and provided by the management of Contura, as more fully described in the section entitled “The Mergers—Certain Unaudited Prospective Financial Information Prepared by Contura.”
For purposes of its discounted cash flow analysis, Ducera defined unlevered free cash flow as (i) non-GAAP earnings before interest, taxes, depreciation and amortization, adjusted for implied trading and logistics margins beginning in 2020, less (ii) capital expenditures, cash taxes, increases in working capital, and pension contribution. Ducera defined adjusted unlevered free cash flow as (i) unlevered free cash flow, less (ii) Chapter 11 funding obligations for water treatment, Chapter 11 funding obligations for mitigation and royalty contract, plus (iii) bonding releases and estimated tax refunds.
Utilizing the ANR Adjusted Projections, Ducera calculated the net present value of projected adjusted unlevered free cash flows for ANR for the years 2018 through 2022 and calculated terminal values based on an exit EBITDA multiple ranging from 5.25x – 6.25x. These values were then discounted, using a mid-year convention, to present values as of June 30, 2018 at discount rates ranging from 9.0% to 11.0%, which discount rates were selected based upon an analysis of ANR’s estimated weighted average cost of capital. This implied a value per share of ANR common stock ranging from $35.52 to $42.52 when $5 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020 and a value per share of ANR common stock ranging from $38.45 to $46.06 when $8 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020.
Ducera noted that the implied transaction price of $27.07 per share of ANR common stock, derived by multiplying the closing trading price of Contura common stock on April 27, 2018 of $66.50 by the exchange ratio, was lower than the average of the implied value ranges of ANR common stock derived from the discounted cash flow analysis using the ANR Adjusted Projections.
Ducera’s Financial Analysis of Contura (Management Case)
Publicly Traded Companies Valuation Analysis
Ducera also performed a publicly traded companies valuation analysis on Contura. Ducera compared certain of Contura’s financial information with comparable publicly available estimates for companies in the coal production industry with operations and businesses that, for purposes of Ducera’s analysis, may be considered similar to Contura’s, based on business sector participation, financial and other metrics and operating characteristics and products (which we refer to as the “Contura Selected Companies”), specifically:
•
ANR
•
Peabody Energy
•
Arch Coal
•
Alliance Resource Partners
•
Consol Energy

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•
Cloud Peak Energy
•
Warrior Met Coal
•
Ramaco Resources
•
Corsa Coal
No company utilized in the publicly traded companies valuation analysis is identical to Contura. In evaluating comparable companies, Ducera made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond Contura’s and Ducera’s control, such as the impact of competition on Contura’s businesses and the industry generally, industry growth and the absence of any adverse material change in Contura’s financial condition and prospects or the industry, or in the financial markets in general. Mathematical analysis (such as determining the average or median) is not in itself a meaningful method of using comparable company data.
For each Contura Selected Company, Ducera calculated the multiples of the companies’ enterprise value to estimated EBITDA for each of the fiscal years 2018, 2019 and 2020. Estimated EBITDA was obtained from consensus estimates from FactSet, except that the ANR Adjusted Projections, adjusted to allocate $5 per ton of trading and logistics margin to the benefit of ANR for fiscal years 2018, 2019 and 2020, were used for that of ANR. From the range of multiples for the Contura Selected Companies, Ducera, using its professional judgment, selected a range of 3.0x to 4.0x for fiscal year 2018, 4.5x to 5.5x for fiscal year 2019 and 5.25x to 6.25x for fiscal year 2020. Ducera then applied these ranges of multiples to the estimated EBITDA of Contura based on the Contura Management Case (as defined on page 126) for the same calendar years, in each case using (i) the assumption that $5 per ton of Contura’s trading and logistics margin is allocated to ANR and (ii) the assumption that $8 per ton of Contura’s trading and logistics margin is allocated to ANR. This analysis implied the following ranges of value per share of Contura common stock:
Range of Implied Contura Share Prices - Contura Management Case
$5/Ton T&L Margin
 
2018E EBITDA
 
$88.45 - $119.19
 
2019E EBITDA
 
$89.80 - $110.60
 
2020E EBITDA
 
$79.89 - $95.83
$8/Ton T&L Margin
 
2018E EBITDA
 
$86.46 - $115.96
 
2019E EBITDA
 
$85.96 - $105.52
 
2020E EBITDA
 
$75.12 - $89.81
Discounted Cash Flow Analysis
Ducera also calculated a range of equity values per share for Contura common stock based on a discounted cash flow analysis to value Contura as a standalone entity. Ducera utilized the Contura Management Case as provided by the management of Contura and as more fully described in the section entitled “The Mergers — Certain Unaudited Prospective Financial Information Prepared by Contura.”
For purposes of its discounted cash flow analysis, Ducera defined unlevered free cash flow as (i) non-GAAP earnings before interest, taxes, depreciation and amortization, less cash asset retirement obligations, adjusted for implied trading and logistics margins beginning in 2020, less (ii) capital expenditures, cash taxes, and changes in working capital. Ducera defined adjusted unlevered free cash flow as (i) unlevered free cash flow, less (ii) Chapter 11 funding obligations plus (iii) estimated AMT tax refunds, and estimated lookback tax refunds.
Utilizing the Contura Management Case, Ducera calculated the net present value of projected adjusted unlevered free cash flows for Contura for the years 2018 through 2022 and calculated terminal values based on an exit EBITDA multiple ranging from 5.25x – 6.25x. These values were then discounted, using a mid-year convention, to present values as of June 30, 2018 at discount rates ranging from 9.0% to 11.0%, which discount rates were selected based upon an analysis of Contura’s estimated weighted average cost of capital. This implied a value per share of Contura common stock ranging from $100.46 to $119.95 when $5 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020 and a value per

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share of Contura common stock ranging from $93.67 to $111.83 when $8 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020.
Ducera noted that the illustrative midpoint of Contura’s range of implied share prices under the Contura Management Case was $94.53 per share of Contura common stock. Applying the exchange ratio to the illustrative midpoint of $94.53 results in an implied transaction price of $35.10 per share of ANR common stock, which Ducera noted was lower than the average of the implied value ranges of ANR common stock derived from the discounted cash flow analysis using the ANR Adjusted Projections.
Relative Contribution Analysis
Ducera also analyzed the respective contributions of Contura and ANR to the relative market multiple implied equity value, relative discounted cash flow, and relative market value of the combined company based on the Contura Management Case and ANR Adjusted Projections in comparison to the implied equity split in the mergers of approximately 53.5% to Contura stockholders and 46.5% to ANR stockholders. The relative market multiple implied equity value analysis utilized the midpoints of ANR’s and Contura’s respective selected EV/EBITDA ranges for each year. The relative discounted cash flow analysis utilized the midpoints of ANR’s and Contura’s respective WACC and terminal EBITDA multiple ranges in each case. This analysis implied the following percentage contributions of Contura and ANR:
Relative Contributions - Contura Management Case
 
Contura
 
ANR
Relative Market Multiple Implied Equity Value
 
$5/Ton T&L Margin
 
2018E EBITDA
 
56.9%
 
43.1%
 
2019E EBITDA
 
52.5%
 
47.5%
 
2020E EBITDA
 
53.1%
 
46.9%
 
$8/Ton T&L Margin
 
2018E EBITDA
 
55.2%
 
44.8%
 
2019E EBITDA
 
50.1%
 
49.9%
 
2020E EBITDA
 
49.8%
 
50.2%
DCF
 
$5/Ton T&L
 
57.0%
 
43.0%
 
$8/Ton T&L
 
53.3%
 
46.7%
Market Value
 
Current as of April 27, 2018
 
58.0%
 
42.0%
 
30-day VWAP as of April 27, 2018
 
56.3%
 
43.7%
Ducera’s Financial Analysis of Contura (Alternative Contura Projections)
Publicly Traded Companies Valuation Analysis
Ducera also performed a publicly traded companies valuation analysis on Contura using the Alternative Contura Projections (as defined on page 125). Ducera compared certain of Contura’s financial information with comparable publicly available estimates for the Contura Selected Companies.
As noted above under “Ducera’s Financial Analysis of Contura (Management Case) — Publicly Traded Companies Valuation Analysis,” for each of the Contura Selected Companies, Ducera calculated the multiples of the companies’ enterprise value to estimated EBITDA for each of the fiscal years 2018, 2019 and 2020. Estimated EBITDA was obtained from consensus estimates from FactSet, except that the ANR Adjusted Projections, adjusted to allocate $5 per ton of trading and logistics margin to the benefit of ANR for fiscal years 2018, 2019 and 2020, were used for that of ANR. From the range of multiples for the Contura Selected Companies, Ducera, using its professional judgment, selected a range of 3.0x to 4.0x for fiscal year 2018, 4.25x to 5.25x for fiscal year 2019 and 5.0x to 6.0x for fiscal year 2020. Ducera then applied these ranges of multiples to the estimated EBITDA of Contura based on the Alternative Contura Projections for the same calendar years, in each case using (i) the assumption that $5 per ton of Contura’s trading and logistics margin is allocated to ANR and (ii) the assumption that $8 per ton of Contura’s trading and logistics margin is allocated to ANR. This analysis implied the following ranges of value per share of Contura common stock:

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Range of Implied Contura Share Prices - Alternative Contura Projections
$5/Ton T&L Margin
 
2018E EBITDA
 
$88.45 - $119.19
 
2019E EBITDA
 
$98.03 - $121.99
 
2020E EBITDA
 
$91.91 - $111.05
$8/Ton T&L Margin
 
2018E EBITDA
 
$86.46 - $115.96
 
2019E EBITDA
 
$94.49 - $117.21
 
2020E EBITDA
 
$87.45 - $105.35
Discounted Cash Flow Analysis
Ducera also calculated a range of equity values per share for Contura common stock based on a discounted cash flow analysis to value Contura as a standalone entity. Ducera utilized the Alternative Contura Projections as provided by the management of Contura and as more fully described in the section entitled “The Mergers — Certain Unaudited Prospective Financial Information Prepared by Contura.”
For purposes of its discounted cash flow analysis, Ducera defined unlevered free cash flow as (i) non-GAAP earnings before interest, taxes, depreciation and amortization, less cash asset retirement obligations, adjusted for implied trading and logistics margins beginning in 2020, plus estimated cost savings, less (ii) capital expenditures, cash taxes, and changes in working capital. Ducera defined adjusted unlevered free cash flow as described above under “Ducera Financial Analysis of Contura (Management Case) — Discounted Cash Flow Analysis.”
Utilizing the Alternative Contura Projections, Ducera calculated the net present value of projected adjusted unlevered free cash flows for Contura for the years 2018 through 2022 and calculated terminal values based on an exit EBITDA multiple ranging from 5.0x – 6.0x. These values were then discounted, using a mid-year convention, to present values as of June 30, 2018 at discount rates ranging from 9.5% to 11.5%. Ducera selected a higher range of discount rates for the discounted cash flow analysis of the Alternative Contura Projections than for the Contura Management Case due to certain additional risks in the Alternative Contura Projections related to certain cost savings assumptions. This implied a value per share of Contura common stock ranging from $111.08 to $132.07 when $5 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020 and a value per share of Contura common stock ranging from $104.60 to $124.30 when $8 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020.
Ducera noted that the illustrative midpoint of Contura’s range of implied share prices under the Alternative Contura Projections was $102.37 per share of Contura common stock. Applying the exchange ratio to the illustrative midpoint of $102.37 results in an implied transaction price of $36.56 per share of ANR common stock, which Ducera noted was within (when $5 per ton of Contura’s trading and logistics margin is allocated to ANR) or below (when $8 per ton of Contura’s trading and logistics margin is allocated to ANR) the average of the implied value ranges of ANR common stock derived from the discounted cash flow analysis using the ANR Adjusted Projections.
Relative Contribution Analysis
Ducera also analyzed the respective contributions of Contura and ANR to the relative market multiple implied equity value, relative discounted cash flow, and relative market value of the combined company based on the Alternative Contura Projections and the ANR Adjusted Projections in comparison to the implied equity split in the mergers of approximately 53.5% to Contura stockholders and 46.5% to ANR stockholders. The relative market multiple implied equity value analysis utilized the midpoints of ANR’s and Contura’s respective selected EV/EBITDA ranges for each year. The relative discounted cash flow analysis utilized the midpoints of ANR’s and Contura’s respective WACC and terminal EBITDA multiple ranges in each case. This analysis implied the following percentage contributions of Contura and ANR:

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Relative Contributions - Alternative Contura Projections
 
Contura
 
ANR
Relative Market Multiple Implied Equity Value
 
$5/Ton T&L Margin
 
2018E EBITDA
 
56.9%
 
43.1%
 
2019E EBITDA
 
54.8%
 
45.2%
 
2020E EBITDA
 
56.7%
 
43.3%
 
$8/Ton T&L Margin
 
2018E EBITDA
 
51.9%
 
48.1%
 
2019E EBITDA
 
52.7%
 
47.3%
 
2020E EBITDA
 
53.7%
 
46.3%
DCF
 
$5/Ton T&L
 
59.3%
 
40.7%
 
$8/Ton T&L
 
55.9%
 
44.1%
Market Value
 
Current as of April 27, 2018
 
58.0%
 
42.0%
 
30-day VWAP as of April 27, 2018
 
56.3%
 
43.7%
Ducera’s Financial Analysis of ANR (Alternative ANR Projections)
Publicly Traded Companies Valuation Analysis
Ducera also performed a publicly traded companies valuation analysis on ANR utilizing the Alternative ANR Projections. Ducera compared certain of ANR’s financial information with comparable publicly available estimates for the ANR Selected Companies.
As noted above under “Ducera’s Financial Analysis of ANR (ANR Projections) — Publicly Traded Companies Valuation Analysis,” for each of the ANR Selected Companies, Ducera calculated the multiples of the companies’ enterprise value to estimated EBITDA for each of the fiscal years 2018, 2019 and 2020. Estimated EBITDA was obtained from consensus estimates from FactSet, except that the Contura Management Case projections, adjusted to allocate $5 per ton of trading and logistics margin to the benefit of ANR for fiscal years 2018, 2019 and 2020, were used for that of Contura. From the range of multiples for the ANR Selected Companies, Ducera, using its professional judgment, selected a range of 3.5x to 4.5x for fiscal year 2018, 5.0x to 6.0x for fiscal year 2019 and 5.75x to 6.75x for fiscal year 2020. Ducera then applied these ranges of multiples to the estimated EBITDA of ANR based on the Alternative ANR Projections for the same calendar years, in each case using (i) the assumption that $5 per ton of Contura’s trading and logistics margin is allocated to ANR and (ii) the assumption that $8 per ton of Contura’s trading and logistics margin is allocated to ANR. This analysis implied the following ranges of value per share of ANR common stock:
Range of Implied ANR Share Prices
Alternative ANR Projections
 
$5/Ton T&L Margin
 
2018E EBITDA
 
$31.70 - $42.11
 
2019E EBITDA
 
$30.06 - $37.03
 
2020E EBITDA
 
$22.07 - $26.74
 
$8/Ton T&L Margin
 
2018E EBITDA
 
$32.92- $43.91
 
2019E EBITDA
 
$32.16 - $39.70
 
2020E EBITDA
 
$24.60 - $29.85
Discounted Cash Flow Analysis
Ducera also calculated a range of equity values per share for ANR common stock based on a discounted cash flow analysis to value ANR as a standalone entity. Ducera utilized Alternative ANR Projections as provided by the management of Contura and as more fully described in the section entitled “The Mergers — Certain Unaudited Prospective Financial Information Prepared by ANR.”
For purposes of its discounted cash flow analysis, Ducera defined unlevered free cash flow and adjusted unlevered free cash flow as described above under “Ducera’s Financial Analysis of ANR (ANR Projections) — Discounted Cash Flow Analysis.”

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Utilizing the Alternative ANR Projections, Ducera calculated the net present value of projected adjusted unlevered free cash flows for ANR for the years 2018 through 2022 and calculated terminal values based on an exit EBITDA multiple ranging from 5.75x – 6.75x. These values were then discounted, using a mid-year convention, to present values as of June 30, 2018 at discount rates ranging from 8.0% to 10.0%. Ducera selected a lower range of discount rates for the discounted cash flow analysis of the Alternative ANR Projections than for the ANR Projections due to stabilization of certain risks in the Alternative ANR Projections related to certain cost savings assumptions. This implied a value per share of ANR common stock ranging from $22.77 to $27.41 when $5 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020 and a value per share of ANR common stock ranging from $26.18 to $31.48 when $8 per ton of Contura’s trading and logistics margin is allocated to ANR beginning in 2020.
Ducera noted that the implied transaction price of $27.07 per share of ANR common stock, derived by multiplying the closing trading price of Contura common stock on April 27, 2018 of $66.50 by the exchange ratio, was within the average of the implied value ranges of ANR common stock derived from the discounted cash flow analysis using the Alternative ANR Projections.
Relative Contribution Analysis
Ducera also analyzed the respective contributions of Contura and ANR to the relative market multiple implied equity value, relative discounted cash flow, and relative market value of the combined company based on the Contura Management Projections and the Alternative ANR Projections in comparison to the implied equity split in the mergers of approximately 53.5% to Contura stockholders and 46.5% to ANR stockholders. The relative market multiple implied equity value analysis utilized the midpoints of ANR’s and Contura’s respective selected EV/EBITDA ranges for each year. The relative discounted cash flow analysis utilized the midpoints of ANR’s and Contura’s respective WACC and terminal EBITDA multiple ranges in each case. This analysis implied the following percentage contributions of Contura and ANR:
Relative Contributions - Alternative ANR Projections
 
Contura
 
ANR
Relative Market Multiple Implied Equity Value
 
$5/Ton T&L Margin
 
2018E EBITDA
 
56.9
%
 
43.1
%
 
2019E EBITDA
 
58.3
%
 
41.7
%
 
2020E EBITDA
 
62.8
%
 
37.2
%
 
$8/Ton T&L Margin
 
2018E EBITDA
 
55.2
%
 
44.8
%
 
2019E EBITDA
 
55.5
%
 
44.5
%
 
2020E EBITDA
 
58.7
%
 
41.3
%
DCF
 
$5/Ton T&L
 
67.3
%
 
32.7
%
 
$8/Ton T&L
 
62.5
%
 
37.5
%
Market Value
 
Current as of April 27, 2018
 
58
%
 
42
%
 
30-day VWAP as of April 27, 2018
 
56.3
%
 
43.7
%
General
The foregoing summary of certain material financial analyses does not purport to be a complete description of the analyses or data presented by Ducera. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Ducera believes that the foregoing summary and its analyses must be considered as a whole and that selecting portions of the foregoing summary and these analyses, without considering all of the analyses as a whole, could create an incomplete view of the processes underlying the analyses and the opinion. As a result, the ranges of valuations resulting from any particular analysis or combination of analyses described above were merely utilized to create points of reference for analytical purposes and should not be taken to be the view of Ducera with respect to Contura’s or ANR’s actual value. In arriving at its opinion, Ducera reviewed various financial and operational metrics and forecasts for Contura and ANR, which were made available to Ducera by or on behalf of Contura. In arriving at its opinion, Ducera did not attribute any particular weight to any analyses or factors, except as noted above, and did not form an opinion as to whether any individual analysis or factor, considered in isolation, supported or failed to support its opinion. Rather, Ducera considered the totality of the factors and analyses performed. Analyses based upon forecasts of future results are

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inherently uncertain, as they are subject to numerous factors or events beyond the control of the parties and their advisors. Accordingly, forecasts and analyses used or made by Ducera are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by those analyses. Moreover, Ducera’s analyses are not and do not purport to be appraisals or otherwise reflective of the prices at which businesses could actually be bought or sold. None of the selected companies reviewed is identical to Contura or ANR. However, the companies selected were chosen because they are publicly traded companies with operations and businesses that, for purposes of Ducera’s analysis, may be considered similar to Contura’s or ANR’s based on business sector participation, financial and other metrics and operating characteristics and products. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the companies compared to Contura or ANR.
The terms of the transaction, including the exchange ratio, were determined through arm’s length negotiations between Contura and ANR and were approved by the Contura board of directors. Although Ducera provided advice to the Contura board of directors during the course of these negotiations, the decision to enter into the merger agreement was solely that of the Contura board of directors. Ducera did not recommend any specific consideration to Contura or that any specific amount or type of consideration constituted the only appropriate consideration for the mergers. As described in the section entitled “The Mergers — Contura’s Reasons for the Mergers,” the opinion of Ducera and its presentation to the Contura board of directors were among a number of factors taken into consideration by the Contura board of directors in making its determination to approve the merger agreement and the transactions contemplated thereby.
Certain Unaudited Prospective Financial Information Prepared by Contura
Contura does not, as a matter of course, make public forecasts as to future performance, earnings or other results for extended periods of time; and forecasts for extended periods of time are of particular concern to Contura due to, among other reasons, the unpredictability, uncertainty and subjectivity of the underlying assumptions and estimates. However, in connection with Contura’s and Alpha’s evaluation of the proposed mergers, Contura’s management prepared non-public, internal financial forecasts regarding Contura’s anticipated future operations for the fiscal years ending 2018 through 2022 for three alternative scenarios, the Contura Base Case, the Contura Management Case and the Alternative Contura Projections (in each case, as defined below, and together, the “Contura Projections”). The Contura Projections were provided to Contura’s financial advisors and, in the case of the Contura Base Case, to Alpha in connection with their respective evaluation of the mergers. Contura has included below a summary of the Contura Projections.
Contura also reviewed the ANR Projections described under “The Mergers-Certain Unaudited Prospective Financial Information Prepared by ANR” provided by ANR’s management. In order to assist Ducera in its consideration of the terms of the mergers, Contura’s management made certain adjustments to the ANR Projections based on Contura’s experience and operational practices (such adjusted projections are referred to as the “ANR Adjusted Projections” and the “Alternative ANR Projections”). The ANR Projections, the ANR Adjusted Projections and the Alternative ANR Projections were provided to Ducera in connection with their respective consideration and evaluation of the mergers. The ANR Adjusted Projections and the Alternative ANR Projections are described below. Because the ANR Adjusted Projections and the Alternative ANR Projections utilized the ANR Projections, such forecasts are, in addition to the qualifications and cautionary statements set forth under this section, subject to the qualifications and cautionary statements set forth under “The Mergers—Certain Unaudited Prospective Financial Information Prepared by ANR.”
The Contura Projections, the ANR Adjusted Projections and the Alternative ANR Projections were not prepared for the purpose of public disclosure, nor were they prepared in compliance with published guidelines of the SEC, the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of financial forecasts or GAAP. No independent registered public accounting firm has examined, compiled or otherwise performed any procedures with respect to either the Contura Projections, the ANR Adjusted Projections or the Alternative ANR Projections. The reports of the independent registered public accounting firms and independent auditors included in this joint proxy statement and prospectus relate to Contura’s and ANR’s historical financial information and do not extend to the Contura Projections, the ANR Adjusted Projections or the Alternative ANR Projections, and should not be read to do so. The Contura Projections, the ANR Adjusted Projections and the Alternative ANR Projections were based on internal management reporting that may differ from Contura’s and Alpha’s external public reporting.

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The Contura Projections, the ANR Adjusted Projections and the Alternative ANR Projections are not being included in this joint proxy statement and prospectus to influence your decision whether to vote for the proposals or any other decision with respect to the mergers; rather, the summary is being included in this joint proxy statement and prospectus because the Contura Projections, the ANR Adjusted Projections and the Alternative ANR Projections were provided by Contura to Ducera, its financial advisor, and because the Contura Base Case were provided by Contura to Alpha’s financial advisors.
Because these internal forecasts were developed for Contura on a standalone basis without giving effect to the mergers, these internal forecasts do not give effect to the mergers or any changes to Contura’s or ANR’s operations or strategy that may be implemented after the completion of the mergers, including any potential synergies realized as a result of the mergers, or to any costs related to, or that may arise in connection with, the mergers.
While presented with numeric specificity, the Contura Projections, the ANR Adjusted Projections and the Alternative ANR Projections were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of Contura’s or ANR’s management, as applicable. Important factors that may affect actual results and cause the internal financial forecasts to not be achieved include risks and uncertainties relating to Contura’s and ANR’s businesses, industry performance, commodity price trends, the regulatory environment, general business and economic conditions, tariffs, quotas and trade agreements and other factors described under the sections entitled “Cautionary Statement Regarding Forward Looking Statements” beginning on page 66 and “Risk Factors” beginning on page 34. Since the forecasts cover multiple years, this information by its nature becomes less meaningful and predictive with each successive year. The Contura Projections, the ANR Adjusted Projections and the Alternative ANR Projections were prepared based on information Contura’s management had at the time of preparation in April 2018 and reflect factors and assumptions that are subject to change and do not necessarily reflect current factors and assumptions that Contura’s management may have about Contura’s and ANR’s businesses. As a result, actual results may differ materially from these internal financial forecasts. The inclusion of these internal forecasts in this joint proxy statement and prospectus should not be regarded as an indication that Contura, Alpha or any other recipient of the financial forecasts considered, or now considers, these forecasts to be material or necessarily predictive of future results.
In light of the foregoing factors and uncertainties inherent in the prospective information, stockholders are cautioned not to place undue, if any, reliance on the prospective information included in this joint proxy statement and prospectus.
None of Contura, Alpha or their respective affiliates, advisors, officers, directors or other representatives can provide any assurance that actual results will not differ materially from the Contura Projections, the ANR Adjusted Projections or the Alternative ANR Projections, and none of them undertakes any obligation to update, or otherwise revise or reconcile, these internal financial forecasts to reflect circumstances existing after April 2018 or to reflect the occurrence of subsequent events even in the event that any or all of the factors or assumptions underlying the forecasts are shown to be in error. None of Contura or Alpha or their respective affiliates, advisors, officers, directors or representatives has made or makes any representation to any stockholder or other person that the forecasted results can or will be achieved. Contura has made no representation to Alpha, in the merger agreement or otherwise, concerning the Contura Base Case.
Contura Projections
Contura’s management prepared three sets of non-public, internal financial forecasts regarding Contura’s anticipated future operations for the fiscal years ending 2018 through 2022 for three alternative scenarios, which are referred to as the “Contura Base Case,” “Contura Management Case” and the “Alternative Contura Projections.”

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Contura Base Case
The below table presents certain information included in the Contura Base Case projections that Contura prepared and provided to ANR:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,454

 
$
1,262

 
$
1,186

 
$
1,169

 
$
1,207

Gross Profit (1)
392

 
284

 
234

 
226

 
259

EBITDA (non-GAAP)  (2)
349

 
243

 
191

 
184

 
218

Unlevered Free Cash Flow (4)
258

 
134

 
95

 
99

 
140

Contura Management Case
Under the Contura Management Case projections, Contura adjusted the Contura Base Case projections to assume a portion of the trading and logistics margin is reallocated to the benefit of ANR beginning in 2020 under two scenarios: a $5 per ton reallocation and an $8 per ton reallocation.
The below table presents certain information included in the Contura Management Case projections that Contura prepared and presented to Ducera under a scenario assuming $5 per ton of trading and logistics margin is reallocated to the benefit of ANR beginning in 2020:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,454

 
$
1,262

 
$
1,186

 
$
1,169

 
$
1,207

Gross Profit (1)
392

 
284

 
213

 
205

 
237

Adjusted EBITDA (non-GAAP) (3)
342

 
238

 
166

 
160

 
195

Unlevered Free Cash Flow (4)
265

 
204

 
93

 
87

 
129

The below reflects the Contura Management Case projections that Contura prepared and presented to Ducera under a scenario assuming $8 per ton of trading and logistics margin is reallocated to the benefit of ANR beginning in 2020:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,454

 
$
1,262

 
$
1,186

 
$
1,169

 
$
1,207

Gross Profit (1)
392

 
284

 
200

 
192

 
225

Adjusted EBITDA (non-GAAP) (3)
342

 
238

 
153

 
147

 
182

Unlevered Free Cash Flow  (4)
265

 
204

 
80

 
74

 
116

Alternative Contura Projections
Under the Alternative Contura Projections, Contura adjusted the Contura Management Case projections to include estimated future cost savings for Contura’s operations similar to that projected by ANR management for its operations in the ANR Projections beginning in 2019.

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The below table presents certain information included in the Alternative Contura Projections that Contura prepared and presented to Ducera, under a scenario assuming $5 per ton of trading logistics margin is reallocated to the benefit of ANR beginning in 2020:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,454

 
$
1,262

 
$
1,186

 
$
1,169

 
$
1,207

Gross Profit (1)
392

 
317

 
246

 
242

 
257

Adjusted EBITDA (non-GAAP) (3)
342

 
271

 
200

 
198

 
215

Unlevered Free Cash Flow  (4)
265

 
237

 
126

 
124

 
148

The below table presents certain information included in the Alternative Contura Projections that Contura prepared and presented to its board, under a scenario assuming $8 per ton of trading logistics margin is reallocated to the benefit of ANR beginning in 2020:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,454

 
$
1,262

 
$
1,186

 
$
1,169

 
$
1,207

Gross Profit (1)
392

 
317

 
233

 
229

 
244

Adjusted EBITDA (non-GAAP) (3)
342

 
271

 
187

 
185

 
202

Unlevered Free Cash Flow (4)
265

 
237

 
113

 
112

 
136

ANR Adjusted Projections
As described above, as part of Contura’s evaluation of the mergers, Contura adjusted certain amounts in the ANR Projections. These adjustments relate to certain tax benefits (the ANR Projections, as so adjusted, the “Adjusted ANR $8 Margin Projections”). The ANR Projections (and the “Adjusted ANR $8 Margin Projections”) assumed that $8 per ton of the trading and logistics margin is reallocated to the benefit of ANR beginning in 2020. Contura also adjusted the Adjusted ANR $8 Margin Projections to assume that instead of $8 per ton, that $5 per ton of such margin is so reallocated (the Adjusted ANR $8 Margin Projections as so adjusted are referred to as the “Adjusted ANR $5 Margin Projections”; and together with the Adjusted ANR $8 Margin Projections they are referred to as the “ANR Adjusted Projections”).
The below table presents certain information included in the Adjusted ANR $5 Margin Projections:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,188

 
$
1,110

 
$
1,087

 
$
1,078

 
$
1,078

Gross Profit (1)
257

 
232

 
202

 
194

 
194

Adjusted EBITDA (non-GAAP) (3)
210

 
189

 
159

 
151

 
151

Unlevered Free Cash Flow (5)
180

 
185

 
67

 
56

 
55


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The below table presents certain information included in the Adjusted ANR $8 Margin Projections:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,188

 
$
1,110

 
$
1,087

 
$
1,078

 
$
1,078

Gross Profit (1)
257

 
232

 
215

 
207

 
207

Adjusted EBITDA (non-GAAP) (3)
210

 
189

 
172

 
164

 
164

Unlevered Free Cash Flow (5)
180

 
185

 
78

 
66

 
65

Alternative ANR Projections
As described above, as part of Contura’s evaluation of the mergers, Contura adjusted certain amounts in the ANR Adjusted Projections. The adjustments relate to the exclusion of certain cost savings projected by ANR management for its operations beginning in 2019.
The below table presents certain information included in the ANR Adjusted Projections as so adjusted (referred to herein as the “Alternative ANR Projections”) that Contura prepared and presented to Ducera, under a scenario assuming $5 per ton of trading and logistics margin is reallocated to the benefit of ANR beginning in 2020:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,188

 
$
1,110

 
$
1,087

 
$
1,078

 
$
1,078

Gross Profit (1)
257

 
176

 
147

 
139

 
139

Adjusted EBITDA (non-GAAP) (2)
210

 
133

 
104

 
96

 
96

Unlevered Free Cash Flow (5)
180

 
136

 
21

 
8

 
8

The below table presents certain information included in the Alternative ANR Projections that Contura prepared and presented to Ducera, under a scenario assuming $8 per ton of trading and logistics margin is reallocated to the benefit of ANR beginning in 2020:
 
2018
 
2019
 
2020
 
2021
 
2022
 
(In millions)
Total Revenue
$
1,188

 
$
1,110

 
$
1,087

 
$
1,078

 
$
1,078

Gross Profit (1)
257

 
176

 
160

 
152

 
152

Adjusted EBITDA (non-GAAP) (2)
210

 
133

 
117

 
109

 
109

Unlevered Free Cash Flow (5)
180

 
136

 
33

 
20

 
20

______________
(1)
Contura’s management assumed in two separate scenarios that the trading and logistics contract (assumed to expire at the end of 2019) was above market in favor of Contura by $5 per ton and $8 per ton, and accordingly, adjusted the Contura projections for the first and second scenarios to reallocate $5 per ton and $8 per ton of trading and logistics margin for the benefit of ANR beginning in 2020, respectively. The ANR Projections assumed $8 per ton of trading and logistics margin share beginning in 2020, and accordingly, Contura’s management adjusted the ANR Projections for the first scenario to reallocate $5 per ton of trading and logistics margin for the benefit of ANR beginning in 2020) and did not reallocate the trading and logistics margin share in the second scenario .]
(2)
EBITDA represents net income before interest, taxes, depreciation and amortization, plus market-to-market adjustments
(3)
Adjusted EBITDA represents net income before interest, taxes, depreciation and amortization, plus market-to-market adjustments and accretion reduced by asset retirement obligations cash settlements.
(4)
Unlevered Free Cash Flow represents Adjusted EBITDA, less the amount of capital expenditures, cash taxes, changes in working capital, payments on account of liabilities arising out of the Alpha Natural Resources, Inc. Chapter 11 cases, plus the amount of surety bond restricted cash released to Contura and estimated tax refunds to be received.
(5)
Unlevered Free Cash Flow represents Adjusted EBITDA, less the amount of capital expenditures, cash taxes, changes in working capital, pension contributions, payments on account of water treatment and mitigation settlements, contingent royalty payments, plus the amount of surety bond restricted cash payments released to ANR and estimated tax refunds to be received.

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Board of Directors of the Combined Company Following Completion of the Mergers
Effective as of the closing of the mergers, the size of the combined company’s board of directors will be expanded to nine directors. Five board seats will be filled by the current members of Contura’s board of directors and four board seats will be filled by individuals designated by Alpha. The initial Alpha designees to be appointed to the combined company’s board of directors at closing are expected to be John E. Lushefski, Daniel J. Geiger, David J. Stetson and Harvey L. Tepner (who are each current members of the board of directors of Holdings), unless any of Messrs. Lushefski, Geiger or Tepner fails to meet applicable independence standards as of the closing, in which case such individual will not be appointed to the combined company’s board of directors at closing. If any of Messrs. Lushefski, Geiger, Stetson or Tepner is unable to or has declined to serve on the combined company’s board of directors prior to the closing (or is not appointed to the combined company’s board of directors because he failed to meet applicable independence standards as of the closing), Alpha may designate a replacement subject to the approval of Contura’s board of directors, which cannot be unreasonably withheld (unless such replacement fails to meet applicable independence standards as determined by Contura’s board of directors in its reasonable discretion exercised in good faith).
Following the closing of the mergers and through the completion of the combined company’s 2019 annual meeting of stockholders, the size of the combined company’s board of directors may not be changed except to reduce the size of the board in the event of any resignation or other cessation of service of one or more director, and the combined company’s board of directors must, subject to its fiduciary duties, nominate for election, unanimously recommend for election and solicit proxies in favor of the election of, each of the Alpha designees to the combined company’s board of directors.
Set forth below is a brief biography of each of the individuals currently expected to serve on the combined company’s board of directors effective as of the closing of the mergers:
Kevin S. Crutchfield , age 57, has served as Contura’s chief executive officer, and as a director, since July 2016. He previously served as chairman and chief executive officer of Predecessor Alpha, having been appointed as a director in November 2007, elected as chief executive officer at the time of Alpha’s merger with Foundation Coal in July 2009 and named chairman in May 2012. He was also a member of the safety, health, environmental and sustainability committee from the time of the merger. Prior to that time, he served as Alpha’s president from January 2007 until the merger. Mr. Crutchfield also served as Alpha’s executive vice president from November 2004 until January 2007.
Mr. Crutchfield joined Alpha’s management team as the executive vice president of Alpha Natural Resources, LLC and vice president of ANR Holdings, LLC in March 2003, and also served as the executive vice president of ANR Holdings, LLC from November 2003 until ANR Holdings, LLC was merged with another of Alpha’s subsidiaries in December 2005. From June 2001 through January 2003, he served as vice president of El Paso Corporation, a natural gas and energy provider, and president of Coastal Coal Company, a coal producer and affiliate of El Paso Corporation, acquired by Alpha in 2003.
Prior to joining El Paso, he served as president and CEO of AMVEST Corporation, a coal and gas producer and provider of related products and services, and held executive positions at AEI Resources, Inc., a coal producer, including president and chief executive officer. Before joining AEI Resources, he served as the chairman, president and chief executive officer of Cyprus Australia Coal Company and held executive operating management positions with Cyprus in the U.S. before being relocated to Sydney, Australia in 1997. He worked for Pittston Coal Company, in various operating and executive management positions from 1986 to 1995, including as vice president operations prior to joining Cyprus.
Mr. Crutchfield serves on the board of directors of Coeur Mining Inc. He also served on the board of directors of King Pharmaceuticals, Inc. from February 2010 until the first quarter of 2011, when he resigned in connection with the acquisition of King Pharmaceuticals by Pfizer, and on the board of directors of Rice Energy Inc. from January 2014 to November 2014.
Albert E. Ferrara, Jr. , age 69, is one of Contura’s initial directors, having served since July 2016, and is chairman of the Board’s Audit Committee. Mr. Ferrara has spent over forty years in the metals and related resource industry. Mr. Ferrara served in senior executive positions with AK Steel, including senior vice president finance and chief financial officer, from 2003 until his retirement in 2013. Before joining AK Steel Mr. Ferrara spent thirty years with United States Steel Corporation/USX Corporation in a variety of roles domestically and internationally including senior vice president and treasurer. Mr. Ferrara has served since 2014 as a principal of Amelia Metals LLC, a consulting firm specializing in the metals

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and mining industries. Mr. Ferrara holds a bachelor of science degree with distinction and a juris doctor degree both from the University of Virginia. He has been licensed to practice law in the State of Pennsylvania.
Daniel J. Geiger , age 68, joined the board of directors of each of ANR and Holdings in February 2018. Mr. Geiger has been a Managing Member of D.J. Geiger & Co., LLC, a mining consulting firm, since 2010. During his time as a Managing Member, from 2011 to 2012, Mr. Geiger was also the Lead Independent Director for Lipari Energy, a major coal producer in Eastern Kentucky and a publicly traded company at that time. Prior to those positions, Mr. Geiger was the CEO and Chairman for Lexington Coal Company from August 2004 to July 2010. During his tenure at Lexington Coal Company, Mr. Geiger oversaw the reduction of reclamation liabilities and the eventual merger of the company into a subsidiary of a national coal production company. From 1982 to 2004, Mr. Geiger served as Vice President, Engineering of the James River Coal Company, and has over 35 years of experience in the coal industry. Mr. Geiger earned a B.S. in Civil Engineering from Ohio University, and is a Registered Professional Engineer in the states of Kentucky and West Virginia.
John E. Lushefski , age 62, joined the board of directors of each of ANR and Holdings in July 2016. Most recently, Mr. Lushefski served as Senior Vice President and Chief Financial Officer of Patriot Coal Corporation from 2012 to 2015, where he also served on the board of directors. Patriot filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on May 12, 2015. Prior to Mr. Lushefski’s roles at Patriot Coal Corporation, he held numerous management and advisory positions with several large companies. He was a partner at BVisions Advisory LLP and served as Chief Financial Officer for both Millennium Chemicals Inc. and Peabody Holding Company Inc. Additionally, Mr. Lushefski served on the board of directors of Suburban Propane, LP and Smith Corona Corporation and on the governance committee of Equistar Chemicals, L.P. He also acted as an advisory board member for East Coast Power Systems, Inc. and Restricted Stock Systems, Inc. Mr. Lushefski is a Certified Public Accountant and received his B.S. in Business Administration and Accounting from Pennsylvania State University.
Anthony Orlando , age 59, joined the board in September 2017 and serves as chair of the Board’s Compensation Committee. Mr. Orlando spent nearly thirty years in various executive leadership, financial, business development, and engineering management positions with the global Energy-from-Waste company, Covanta Holding Corporation (formerly Ogden Corporation), most recently as President and Chief Executive Officer from 2004 until 2015. Prior to joining Covanta, Mr. Orlando spent six years in the petrochemical industry as an engineer for Foster Wheeler Corporation. Mr. Orlando currently serves on the board of directors of Landstar System, Inc. and previously served on the board of directors of Covanta Holding. Mr. Orlando earned a master’s degree in business administration from Seton Hall University and a bachelor of science, civil engineering degree from Villanova University.
David J. Stetson , age 62, was appointed as Chairman of the Board of Directors and Chief Executive Officer of ANR and Holdings in July 2016. Mr. Stetson is a seasoned executive with extensive experience in management, finance, mergers and acquisitions, corporate governance, restructuring, the law and reclamation. Mr. Stetson has held a myriad of leadership positions, including Chief Executive Officer, Chief Restructuring Officer, and Senior Advisor for various energy companies, including Trinity Coal Corporation, American Resources Offshore, Inc., Lexington Coal Company, and Lipari Energy Inc. Mr. Stetson earned an M.B.A from the University of Notre Dame, a J.D. from the Brandeis School of Law at the University of Louisville, and a B.S. from Murray State University.
Harvey L. Tepner , age 61, joined the board of directors of each of ANR and Holdings in July 2016, and he serves as the lead independent director of the Board of Directors of each of ANR and Holdings. He is a private investor and serves on the board of directors of Core-Mark Holding Company, Inc., Clear Channel Outdoor Holdings, Inc., and several private companies, including Nine West Holdings, Inc. Previously, Mr. Tepner was a senior executive of WL Ross & Co. LLC, and a partner in WL Ross funds, where his responsibilities included managing certain portfolio companies and sourcing and structuring investments in stressed and distressed loans and debt securities. While at WL Ross, Mr. Tepner was a member of the board of directors of International Textile Group, Inc., Plascar Participacoes Industrias SA of Brazil, and OCM India Limited, publicly traded companies controlled by various WL Ross funds. Prior to WL Ross, Mr. Tepner was an investment banker at several Wall Street firms including Loeb Partners Corporation, Rothschild Inc. and Dillon Read & Co. Mr. Tepner received a B.A. from Carleton University and an M.B.A. from Cornell University. He also holds the dual designations of Chartered Accountant and Chartered Professional Accountant (Canada). Mr. Tepner is a member of the National Association of Corporate Directors, the International Insolvency Institute and the American Bankruptcy Institute, of which he was a former director.

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Neale X. Trangucci , age 61, is one of Contura’s initial directors, having served since July 2016. He is chairman of Contura’s Board of Directors and chairman of the Board’s Nominating and Corporate Governance Committee. In 2014 he formed NXT Partners LLC, where he is principal/owner. He served as co-head of bankruptcy and distressed investments with Mason Capital Management from 2005 until 2014, and previously held senior positions focused on distressed assets and investments with Stonehill Investment Corp/WHX Corp. (including as a partner in Stonehill and as chief executive officer of WHX Corp.), Salomon Brothers Inc. in New York City and Continental Illinois Bank. Mr. Trangucci has also served on the boards of directors of George Industries Inc., Automation Tooling Systems, WHX Corp., Wheeling-Pittsburgh Corp., Wheeling-Nisshin Inc., Photowatt International, Handy & Harman and Unimast. Mr. Trangucci earned a master’s degree in international finance and banking from Columbia University and a bachelor of science degree from Bucknell University.
Michael Ward , age 67, joined the Board in September 2017 and serves as chair of the Board’s Safety, Health and Environmental Committee. Mr. Ward spent forty years serving in various executive leadership, financial, and coal marketing positions with one of the nation’s premier transportation and logistics companies, CSX Corporation, and its predecessor company, Chessie System, Inc., most recently as Board Chairman and Chief Executive Officer from 2003 until 2017. Mr. Ward currently serves on the boards of directors of Ashland Global Holdings, Inc. and PNC Financial Services Group, Inc., as well as a number of boards of various local, regional, and national not-for-profit organizations. Mr. Ward earned a master’s degree in business administration from the Harvard Business School and a bachelor of arts degree from the University of Maryland.
Accounting Treatment of the Mergers
The mergers will be accounted for in accordance with US GAAP and in accordance with the FASB’s ASC 805—Business Combinations. Contura will be treated as the acquirer of Alpha for accounting and financial reporting purposes. For additional information, please see “Selected Unaudited Pro Forma Condensed Combined Financial Information” and the notes related thereto beginning on page 26. The assets and liabilities of Alpha will be recorded, as of the completion of the mergers, at their fair values and consolidated with those of Contura. The purchase price will be determined based on the number of shares of common stock issued and the trading price of shares of Contura common stock on the date of the mergers. Contura will allocate the purchase price to the fair value of Alpha’s tangible and intangible assets and liabilities at the acquisition date, with the excess purchase price, if any, being recorded as goodwill. Under the acquisition method of accounting, goodwill is not amortized but is tested for impairment at least annually. The operating results of Alpha will be part of the combined company beginning on the date of the mergers.
Appraisal / Dissenters’ Rights for Alpha Stockholders
Pursuant to Section 262 of the DGCL, which we refer to as “Section 262,” holders of shares of either Holdings common stock or Class C-1 common stock (collectively, “appraisal rights shares”) who do not wish to accept the merger consideration may elect to have the fair value of their appraisal rights shares (exclusive of any element of value arising from the accomplishment or expectation of the mergers) judicially determined and paid in cash, together with interest, if any, in lieu of receiving the merger consideration. Holders of record of appraisal rights shares may exercise these appraisal rights only by complying strictly with Section 262.
The following discussion is a summary of the material statutory procedures to be followed by stockholders in order to dissent from the mergers and perfect appraisal rights under the DGCL. If you want to exercise appraisal rights, you should review carefully Section 262 and are urged to consult a legal advisor before electing or attempting to exercise these rights, because the failure to precisely follow all the necessary legal requirements may result in the loss of such appraisal rights. This description is not complete and is qualified in its entirety by the full text of the relevant provisions of the DGCL, which are reprinted in their entirety as Annex E to this joint proxy statement and prospectus. Stockholders seeking to exercise appraisal rights with respect to their appraisal rights shares must strictly comply with these provisions.
All references in Section 262 and in this summary to a “stockholder” are to the record holder of appraisal rights shares unless otherwise indicated. A person having a beneficial interest in appraisal rights shares held of record in the name of another person, such as a bank, broker or other nominee, must act promptly to cause the record holder to follow properly the steps summarized below and in a timely manner to perfect appraisal rights.

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Stockholders of record of one or more appraisal rights shares are entitled to appraisal rights under Delaware law and have the right (i) to dissent from the ANR merger with respect to Class C-1 common stock and/or the Holdings merger with respect to Holdings common stock, (ii) to have his, her or its appraisal rights shares appraised by the Delaware Court of Chancery and (iii) to receive the “fair value” of such shares (exclusive of any element of value arising from the accomplishment or expectation of the mergers) as of the completion of the ANR merger or Holdings merger, as applicable, in place of the merger consideration, as determined by the court, if the stockholder strictly complies with the procedures specified in Section 262. If a stockholder is awarded “fair value” for its appraisal rights shares by the Delaware Court of Chancery, such stockholder would receive payment of that fair value in cash, together with interest, if any, in lieu of the right to receive the merger consideration, and accordingly, such stockholder would not receive any shares of Contura common stock following the completion of the mergers. Such fair value amount may be the same as or may differ from, and be higher or lower than, the value of the consideration that the stockholder would otherwise receive as a result of the mergers.
Under Section 262, if a proposed merger is to be submitted for adoption at a meeting of stockholders, as in the case of the Alpha special meetings, each of Holdings and ANR, must, not less than 20 days prior to the Holdings special meeting and the ANR special meeting, respectively, notify its stockholders that these appraisal rights are available and include in the notice a copy of Section 262. This joint proxy statement and prospectus constitutes such notice to the stockholders of Holdings and stockholders of ANR, and Section 262 as in effect with respect to this transaction is included as Annex E to this joint proxy statement and prospectus.
A stockholder who wishes to exercise appraisal rights or who wishes to preserve the right to do so should review the following discussion and Annex E carefully. Failure to strictly comply with the procedures of Section 262 in a timely and proper manner will result in the loss of appraisal rights. A stockholder who loses his, her or its appraisal rights will be entitled to receive the applicable number of shares of Contura common stock (plus cash in lieu of fractional shares) that such stockholder is otherwise entitled to receive under the merger agreement.
Completion of the mergers is subject to, among other things, the appraisal rights condition, unless this condition is waived by Contura.
If a stockholder wishes to exercise his, her or its right to demand appraisal under Section 262, the stockholder must satisfy each of the following conditions. The stockholder must:
•
deliver a written demand for appraisal of its appraisal rights shares to Holdings (with respect to a demand for appraisal of Holdings common stock) or ANR (with respect to a demand for appraisal of Class C-1 common stock) before the taking of the vote with respect to the merger agreement at the Holdings special meeting or ANR special meeting, respectively. This demand will be sufficient if it reasonably informs Holdings (if the demand is made with respect to Holdings common stock) or ANR (if the demand is made with respect to Class C-1 common stock) of the stockholder’s identity and that such stockholder intends thereby to demand the appraisal of its Holdings common stock or Class C-1 common stock, as applicable. A proxy or vote against the ANR merger and/or the Holdings merger will not constitute such a demand. The written demand for appraisal must be in addition to and separate from any proxy the stockholder delivers or vote the stockholder casts in person;
•
not vote in favor of approving the applicable merger (voting against, abstaining from voting or not voting at all will satisfy this requirement). A vote in favor of approving the ANR merger or the Holdings merger, in person or by proxy, or the return of a signed proxy that does not contain voting instructions will, unless revoked, constitute a waiver of the stockholder’s appraisal rights in respect of such merger and will nullify any previously filed written demand for appraisal;
•
continue to hold the class of appraisal rights shares as to which the stockholder has demanded appraisal from the date of making the demand through the effective time of the applicable merger (the stockholder will lose its appraisal rights if it transfers such shares before the effective time of the Holdings merger or ANR merger, as applicable); and
•
file (or Holdings or ANR, as the case may be, must file) a petition in the Delaware Court of Chancery, hereinafter referred to as the Court of Chancery, requesting a determination of the fair value of the stockholder’s appraisal rights shares within 120 days after the effective time of the ANR merger (if appraisal is demanded with respect to Class C-1 common stock) or the Holdings merger (if appraisal is demanded with respect to Holdings common stock). It is

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the obligation of the stockholders to initiate all necessary action to perfect their appraisal rights in respect of appraisal rights shares within the time prescribed in Section 262. Neither Holdings nor ANR is under any obligation to file any petition and has no intention of doing so.
All written demands for appraisal in respect of Class C-1 common stock should be mailed or delivered to:
ANR, Inc.
636 Shelby Street, 3rd Floor
Bristol, Tennessee 37620
Attn: Andrew B. McCallister
SVP, Secretary and General C ounsel
All written demands for appraisal in respect of Holdings common stock should be mailed or delivered to:
Alpha Natural Resources Holdings, Inc.
636 Shelby Street, 3rd Floor
Bristol, Tennessee 37620
Attn: Andrew B. McCallister
SVP, Secretary and General Counsel

To be effective, a demand for appraisal rights must be executed by or for the stockholder of record who held the applicable appraisal rights shares on the date of making the demand and who continuously holds such shares through the effective time of the applicable merger, fully and correctly, as such stockholder’s name appears on the books and records of Holdings or ANR, as the case may be. Such record stockholder should sign every communication.
Only a holder of record of appraisal rights shares is entitled to demand appraisal rights for the shares registered in that holder’s name. Beneficial owners who do not also hold their appraisal rights shares of record may not directly make appraisal demands. The beneficial holder must, in such cases, have the owner of record, such as a bank, brokerage firm or other nominee, submit the required demand in respect of those appraisal rights shares. A record owner, such as a bank, brokerage firm or other nominee, who holds appraisal rights shares as a nominee for others, may exercise his, her or its right of appraisal with respect to the appraisal rights shares held for one or more beneficial owners, while not exercising this right for other beneficial owners. In that case, the written demand should state the number of appraisal rights shares as to which appraisal is sought. Where no number of appraisal rights shares is expressly mentioned, the demand will be presumed to cover all appraisal rights shares of the same class held in the name of the record owner. Stockholders who hold their appraisal rights shares in brokerage accounts or other nominee forms and who wish to exercise appraisal rights are urged to consult with their brokers or other nominees to determine appropriate procedures for making a demand for appraisal. If the appraisal rights shares are owned of record by a person in a fiduciary capacity, such as a trustee, guardian or custodian, the demand should be executed in that capacity. If the shares are owned of record by more than one person as in a joint tenancy or tenancy in common, the demand should be executed by or on behalf of all of the owners. An authorized agent, including an agent for two or more joint owners, may execute a demand for appraisal on behalf of a stockholder; however, the agent must identify the record owner or owners and expressly disclose the fact that, in executing the demand, the agent is acting as agent for such owner or owners.
Within 10 days after effective time of each of the mergers, Holdings or ANR, as applicable, will give written notice of the date that the applicable merger became effective to each of its stockholders who has complied with the requirements of Section 262 and has not voted in favor of adopting the merger agreement.
Within 120 days after the effective time of the Holdings merger or the ANR merger, as applicable, (i) Holdings or any stockholder of Holdings who has complied with Section 262 and who is otherwise entitled to appraisal rights in respect of Holdings common stock and (ii) ANR or any stockholder of ANR who has complied with Section 262 and who is otherwise entitled to appraisal rights in respect of Class C-1 common stock, may file a petition in the Court of Chancery demanding a determination of the value of appraisal rights shares held by all the dissenting stockholders that have properly demanded appraisal for Holdings common stock or Class C-1 common stock, as the case may be. A person who is the beneficial owner of appraisal rights shares held in a voting trust or by a nominee on behalf of such person may, in such person’s own name, file the petition described in the previous sentence. Any dissenting stockholder desiring to file a petition is advised to file on a

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timely basis unless the dissenting stockholder receives notice that another such stockholder of Holdings or ANR, as the case may be, has already filed a petition. The failure to file a petition timely could nullify any previous written demand for appraisal. Neither Holdings nor ANR is under any obligation to file any petition and neither has any intention of doing so. Stockholders who desire to have their shares appraised should initiate any petitions necessary for the perfection of their appraisal rights within the time periods and in the manner prescribed in Section 262. Notwithstanding the foregoing, at any time within 60 days after the effective time of the Holdings merger or ANR merger, any stockholder of Holdings or ANR, as applicable, who has not commenced an appraisal proceeding or joined that proceeding as a named party will have the right to withdraw its demand for appraisal and to accept the merger consideration. Any attempt to withdraw made more than 60 days after the effective time of the Holdings merger or ANR merger, will require the written approval of Holdings or ANR, respectively, and no appraisal proceeding before the Court of Chancery as to any stockholder will be dismissed without the approval of the Court of Chancery, which approval may be conditioned upon any terms the Court of Chancery deems just. If Holdings or ANR, as the case may be, does not approve a stockholder’s request to withdraw a demand for appraisal when the approval is required or if the Court of Chancery does not approve the dismissal of an appraisal proceeding, the stockholder would be entitled to receive only the appraised value determined in any such appraisal proceeding, together with interest, if applicable. This value could be higher or lower than, or the same as, the value of the merger consideration.
Within 120 days after the effective time of the Holdings merger or ANR merger, as the case may be, any stockholder who has complied with Section 262 with respect to a class of appraisal rights shares to that point in time will be entitled to receive from Holdings or ANR, as applicable, upon written request, a statement setting forth the aggregate number of appraisal rights shares of the same class not voted in favor of adopting the merger agreement and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. A person who is the beneficial owner of appraisal rights shares held in a voting trust or by a nominee on behalf of such person may, in such person’s own name, request from Holdings or ANR, as applicable, the statement described in the previous sentence. Each written statement shall be mailed within 10 days after the stockholder’s written request for such statement is received by Holdings or ANR, as the case may be, or within 10 days after expiration of the period for delivery of demands for appraisal under Section 262, whichever is later.
Upon the filing of any such petition by a stockholder of Holdings or ANR, service of a copy thereof shall be made upon Holdings or ANR, respectively. If a petition for appraisal is duly filed by a stockholder and a copy thereof is delivered to Holdings or ANR, Holdings or ANR, as applicable, shall within 20 days after such service, file with the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all of its stockholders who have demanded payment for their shares and with whom agreement as to the value of their appraisal rights shares has not been reached by Holdings or ANR, as applicable. After giving notice to stockholders, the Court of Chancery is empowered to conduct a hearing on the petition to determine those stockholders who have complied with Section 262 and who have become entitled to appraisal rights.
After determining which stockholders are entitled to an appraisal, the Court of Chancery will appraise the appraisal rights shares, determining their fair value exclusive of any element of value arising from the accomplishment or expectation of the mergers, together with interest, if any, to be paid upon the amount determined to be the fair value. When the fair value is determined, the Delaware Court of Chancery will direct the payment of such value, together with interest, if any, on the amount determined to be fair value, to the stockholders entitled to receive the same upon the surrender by such holders of the certificates representing their shares, if any, or immediately in the case of any uncertificated shares.
Unless the Court of Chancery in its discretion determines otherwise for good cause shown, interest from the effective time of the mergers through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective time of the mergers and the date of payment of the judgment. Interest may be simple or compound, as the Court may direct. In determining fair value, the Court of Chancery is to take into account all relevant factors, including the rate of interest which Holdings or ANR, as applicable, would have had to pay to borrow money during the pendency of the proceeding. The fair value of their shares as determined under Section 262 could be greater than, the same as, or less than the merger consideration.
Each of Holdings and ANR, however, has the right at any time before the entry of judgment in the appraisal proceedings, to voluntarily pay to each of its stockholders entitled to appraisal an amount in cash. If Holdings or ANR, as applicable, elects to make such a voluntary payment pursuant to Section 262(h), interest shall accrue thereafter only upon the sum of (1) the

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difference, if any, between the amount paid by Holdings or ANR, as applicable, in such voluntary cash payment and the fair value of the shares as determined by the Delaware Court of Chancery, and (2) interest accrued prior to such voluntary payment, unless paid at that time. Neither Holdings nor ANR, is under any obligation to make such a voluntary cash payment prior to such entry of judgment.
The costs of the proceedings may be determined by the Court of Chancery and taxed upon the parties as the Court of Chancery deems equitable in the circumstances. However, costs do not include attorneys’ or expert witnesses’ fees. Upon application of a stockholder, the Court of Chancery may order that all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding be charged pro rata against the value of all of the shares entitled to appraisal. These expenses may include, without limitation, reasonable attorneys’ fees and the fees and expenses of experts.
If a stockholder has not commenced an appraisal proceeding or joined such a proceeding as a named party the stockholder may withdraw a demand for appraisal and accept the merger consideration by delivering a written withdrawal of the demand for appraisal to Holdings (in the case of a holder of Holdings common stock) or ANR (in the case of a holder of Class C-1 common stock), except that any attempt to withdraw made more than 60 days after the effective time of the Holdings merger or ANR merger will require written approval of Holdings or ANR, as applicable, and no appraisal proceeding in the Delaware Court of Chancery will be dismissed without approval of the Delaware Court of Chancery. Such approval may be conditioned on the terms the Delaware Court of Chancery deems just; provided, however, that no such approval of Holdings or ANR, as the case may be, will be required for any stockholder who has not commenced an appraisal proceeding or joined such proceeding as a named party to withdraw such stockholder’s demand for appraisal and to accept the terms offered in the Holdings merger or ANR merger, as applicable, within 60 days after the effective time of the mergers. If a stockholder fails to perfect, successfully withdraw or lose the appraisal right with respect to his, her or its appraisal rights shares, such shares will be converted into the right to receive the merger consideration, without interest thereon, less any withholding taxes.
The process of demanding and exercising appraisal rights requires strict compliance with technical prerequisites. If you wish to exercise your appraisal rights, you should consult with your own legal counsel in connection with compliance under Section 262. To the extent there are any inconsistencies between the foregoing summary and Section 262, the DGCL will govern.
Regulatory Approvals Required for the Mergers
The completion of the mergers is subject to compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). The notifications required under the HSR Act to the Federal Trade Commission (“FTC”) and the United States Department of Justice Antitrust Division (the “Antitrust Division”) were filed on May 21, 2018. The parties received early termination of the applicable waiting period under the HSR Act on July 2, 2018.
Except in the event that Contura or its subsidiaries agrees to enter into a transaction pursuant to which one or more third parties agrees to acquire beneficial ownership of at least 50% of the assets or businesses of Contura and its subsidiaries (such transaction, a “Contura Sales Transaction”), Contura and Alpha have agreed to use their commercially reasonable efforts, subject to specified limitations, to take, or cause to be taken, all actions necessary, proper or advisable under applicable law and regulations, including the HSR Act, to complete the mergers in the most expeditious manner practicable. Except in the event of a Contura Sales Transaction, the use of such commercially reasonable efforts does not require Contura to agree to or make any concessions or undertakings (including agreements to divest or hold separate assets or limit lines of business) if such agreements, concessions or undertakings either (i) would have a material and adverse effect on the benefits Contura reasonably expects to be derived from the combination of Contura and Alpha through the mergers or materially limit the conduct of business by the combined company following the closing of the mergers, or (ii) are not required to permit the consummation of the mergers without material delay (such agreements, concessions or undertakings, “Materially Burdensome Conditions”).
If Contura or its subsidiaries enters into an agreement committing to a transaction pursuant to which one or more third parties agrees to acquire beneficial ownership of at least 50% of the assets or businesses of Contura and its subsidiaries (such transaction, a “Contura Sale Transaction”), then Contura and its subsidiaries are required to use their reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable, to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as reasonably practicable, including by (i) agreeing to and performing any

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Materially Burdensome Conditions that may be required to obtain the expiration or termination of the applicable waiting periods under the HSR Act and (ii) taking any and all reasonable actions to contest and defend any claim, cause of action, or proceeding instituted or threatened that challenges the mergers as violating any antitrust law and avoid the entry of or have vacated any decree, order, judgment, or injunction entered, enforced, or attempted to be entered or enforced, by any governmental entity that would prohibit, prevent or restrict the consummation of the mergers. See “The Merger Agreement — Covenants and Agreements” beginning on page 151. Neither this covenant nor the covenants addressing the operations of Contura between the signing of the merger agreement and the effective time of the mergers prevents Contura or its subsidiaries from entering into an agreement committing to a Contura Sale Transaction.
It is possible that any of the governmental entities with which filings have been or will be made may seek additional regulatory concessions or impose additional conditions or states or private parties may commence litigation to prevent the completion of the mergers. There can be no assurance that Contura or Alpha will be able to satisfy or comply with any conditions imposed, that compliance or non-compliance will not have adverse consequences on the combined company after completion of the mergers or that litigation, if any, will be resolved favorably by Contura or Alpha.
Contura will be obligated to pay a termination fee of $19 million to Alpha if the merger agreement is terminated under certain circumstances related to the failure to obtain antitrust approvals required for the mergers. See “The Merger Agreement — Termination Fees” beginning on page 161.
Material Contracts Between Contura and Alpha
Alpha Natural Resources, Inc. Restructuring
Contura was incorporated in the State of Delaware on June 10, 2016 and was formed to acquire and operate certain of Predecessor Alpha’s core coal operations, as part of the Alpha Restructuring. On July 26, 2016, a consortium of former creditors of Predecessor Alpha acquired Contura common stock in exchange for a partial release of their creditor claims pursuant to the Alpha Restructuring settlement. Contura entered into various settlement agreements with Predecessor Alpha and/or ANR (the bankruptcy successor of Predecessor Alpha) and third parties as part of the Alpha Restructuring. Contura also assumed acquisition-related obligations through those settlement agreements, which became effective on July 26, 2016, the effective date of Alpha’s plan of reorganization.
Asset Purchase Agreement
Contura entered into an Asset Purchase Agreement (the “APA”) with Predecessor Alpha and ANR, dated July 26, 2016 for the purchase of certain former core coal operations of Alpha. Under the terms of the APA between Alpha and Contura, liabilities, including those related to environmental matters, associated with Alpha or its predecessors’ pre-sale operations were explicitly retained by Alpha, subject to certain exceptions. Pursuant to Alpha’s Plan of Reorganization and the order of the Bankruptcy Court confirming it, the assets acquired by Contura were transferred “free and clear” of any liabilities or claims of any nature relating to Alpha or any of its predecessors, except as otherwise provided in the APA or under the terms of the order of the Bankruptcy Court.
Contura also entered into a Settlement Agreement with the same parties, dated as of November 3, 2016, pursuant to the APA, in which further clarification was provided with regards to the agreement on how to settle items such as working capital adjustments, tax credits and trade payments.
Transition Services Agreement
Contura entered into a Transition Services Agreement (the “TSA”) with Predecessor Alpha and ANR, dated July 26, 2016, for certain back office services and support to be provided from the date of the TSA until various dates, depending on the service. The services provided range from certain accounting, tax, benefit, payroll, legal and regulatory, IT support and other services, and their durational periods range from approximately one month to up to one year following July 26, 2016.
Contura also entered into four amendments to the TSA, with the first being on August 26, 2016 (the “First Amendment”), the second being on October 20, 2016 (the “Second Amendment”), the third being on February 22, 2017 (the “Third Amendment”) and the fourth being on December 19, 2017 (the “Fourth Amendment”). The First Amendment revised various

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mail notice provisions and bank account information, among other things. The Second Amendment provided for a thirty-day extension to the provision of certain telecommunications services. The Third Amendment extended the time period for the provision of certain services through December 31, 2017. The Fourth Amendment extended the time period for the provision of certain services through December 31, 2021. Any future additions to services provided or extensions of service terms will be executed via further amendments to the TSA.
Contingent Credit Agreement
The Contingent Credit Support Commitment (“Contingent Commitment”) was an unsecured obligation of Contura to ANR that required Contura to provide ANR with revolving credit support in certain circumstances in an aggregate total amount of $35 million from July 26, 2016 through September 30, 2018. The Contingent Commitment was terminated in connection with the Lexington Transaction and ANR did not draw against the Contingent Commitment at any time prior to its termination.
Coal Sales Agreement
Alpha Coal Sales Co., LLC (“ACS”) and Contura Coal Sales, LLC (“CCS”) entered into a Master Agreement effective July 26, 2016, under which Contura agreed to purchase and ACS agreed to sell all metallurgical coal that ACS would, in the normal course of its business, sell directly into the export metallurgical market. Pricing for each product is generally calculated using an index price for the thirty-day period prior to a shipment or a negotiated market price minus a terminal charge, a sales fee and the cost of rail transportation. The term of the Master Agreement was originally through December 31, 2017.
The First Amendment to Master Agreement, effective October 1, 2016 (“First Amendment”), (i) extended the term of the Master Agreement to December 31, 2019; (ii) added an additional product to be purchased; (iii) added a provision that permits ACS to elect to export certain met products from time to time on a spot basis, subject to certain CCS rights of refusal; and (iv) added a requirement for a minimum quarterly tonnage, initially 500,000 tons, beginning with calendar year 2017. The parties have continued to use 500,000 tons as the minimum quarterly tonnage. If the minimum quarterly tonnage is not delivered, ACS is required pay liquidated damages to CCS in an amount equal to $4.50 per net ton multiplied by the difference between the minimum quarterly tonnage and the number of net tons actually delivered during the quarter.
The First Amendment also added a provision that permits ACS to offer to CCS additional new products not currently included in the Master Agreement for purchase during any given calendar quarter. If ACS and CCS are not able to reach an agreement for the purchase and sale of such additional new products, ACS may sell such additional new products into the export market for that quarter. If, in marketing such additional new products to third parties, ACS is unable to obtain a price higher than the last price offered by CCS, ACS must offer such additional new products to CCS again before selling to a third party. CCS must elect to purchase such new additional products at such price within two business days of the ACS offer or the ACS offer expires.
The Second Amendment to Master Agreement, effective April 1, 2017 (“Second Amendment”), added an additional product to be purchased.
Relevant sections of the Master Agreement were amended by each of the First Amendment and the Second Amendment to identify the source, pricing method and quality specifications for certain products.
Funding of Restricted Cash Reclamation
Pursuant to the Reclamation Funding Agreement, dated July 12, 2016, as amended on October 23, 2017, separate interest bearing segregated deposit accounts (“Restricted Cash Reclamation Accounts”) were established for certain applicable federal and state environmental regulatory authorities to provide certain funding for the reclamation, mitigation and water treatment, and certain management work to be done at reclaim-only sites related to certain obligations under the various permits associated with ANR’s retained assets. Contura must pay the aggregate amount of $50 million into the various Restricted Cash Reclamation Accounts as follows: $8 million immediately upon the Effective Date; $10 million on the anniversary of the Effective Date in each of 2017, 2018, and 2019; and $12 million on the anniversary of the Effective Date in 2020. The initial $8 million payment was paid as part of the Alpha Restructuring settlement process and $10 million was paid in 2017. In connection with Lexington Transaction, ANR assigned to LCC the right, pursuant to the Reclamation

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Funding Agreement, to receive the remaining $32 million from Contura. In addition, under certain contingencies, Contura was required to pay up to an aggregate amount of $50 million into various Restricted Cash Reclamation Accounts from 2021 through 2025. Such contingent funding obligations have been terminated in connection with the Lexington Transaction.
Interests of Alpha’s Directors and Executive Officers in the Mergers
Some of ANR’s executive officers and members of the ANR board of directors and Holdings board of directors, in their capacities as such, may have financial interests in the mergers that may be different from, or in addition to, their interests as stockholders and the interests of stockholders of ANR and Holdings generally. The members of the ANR board of directors and Holdings board of directors were aware of and considered these interests, among other matters, in reaching the determination to approve the terms of the merger, and in their recommendation to the ANR stockholders and Holdings stockholders that they vote to approve the applicable merger. For additional information, see the section entitled “The Mergers — Alpha’s Reasons for the Mergers; Recommendation of the Alpha Board of Directors” beginning on page 92.
Employment Agreement with David J. Stetson
David J. Stetson ( “ Mr. Stetson”) and Alpha Natural Resources Services, LLC (“Alpha Services”), a wholly-owned, indirect subsidiary of ANR, are party to the Second Revised and Amended Employment Agreement, dated April 29, 2018 (the “Stetson Agreement”). In connection with the mergers, it is expected that Mr. Stetson’s employment will terminate without Cause (as defined below). Under the terms of the Stetson Agreement, if Mr. Stetson is terminated without “Cause” (or Mr. Stetson terminates his employment for “Good Reason”), and he timely executes a release agreement, Mr. Stetson will receive certain severance benefits (the “Stetson Severance Benefits”), as described below.
“Cause” is generally defined as (i) Mr. Stetson’s gross negligence or willful misconduct in the performance of his duties and services; (ii) Mr. Stetson’s final conviction of, or plea of guilty or nolo contendere to, a felony or Mr. Stetson engaging in fraudulent or criminal activity relating to the scope of Mr. Stetson’s employment; (iii) Mr. Stetson’s material violation of Alpha Services’ Code of Business Ethics; (iv) any continuing or repeated failure to perform Mr. Stetson’s duties as required in writing by ANR’s board of directors after Mr. Stetson has been afforded a reasonable opportunity to cure such breach, if curable; (v) Mr. Stetson’s commission of a felony or crime involving moral turpitude or (vi) conduct by Mr. Stetson which brings Alpha Services and/or its affiliates into public disgrace or disrepute in any material respect.
“Good Reason” is generally defined as (i) a material reduction in Mr. Stetson’s (A) base salary or (B) target annual bonus opportunity (unless such reduction relates to an across-the-board reduction similarly affecting all or substantially all other executives of Alpha Services and its affiliates); (ii) a failure to provide Mr. Stetson with the opportunity to materially participate in any material equity-based plans of Alpha Services and its affiliates on a similar basis to those of other executives of Alpha Services and its affiliates; (iii) a material adverse change in Mr. Stetson’s scope of duties or responsibilities caused by Alpha Services which results in a significant diminution in Mr. Stetson’s scope of duties or responsibilities, subject to certain exceptions specified in the Stetson Agreement; (iv) a relocation of the Alpha Services’ principal place of business, or of Mr. Stetson’s own office as assigned to Mr. Stetson by Alpha Services to a location more than fifty (50) miles from the previous location; (v) illegal activity on the part of Alpha Services or its board of directors that has certain material adverse effects specified in the Stetson Agreement; (vi) a contested election of directors, as a result of which or in connection with which the persons who were directors of ANR before such election or their nominees cease to constitute a majority of ANR's Board; or (vii) Alpha Services’ sale or distribution of its assets or operations, and/or the general wind-down of Alpha Services’ business and affairs. Mr. Stetson’s right to terminate his employment for Good Reason is subject to a right to cure by Alpha Services.
The Stetson Severance Benefits generally include the following payments and benefits:
(i)(A) any base salary earned, accrued or owing to him through the last day of employment, (B) any unpaid annual bonus that is due and payable under Alpha Services’ and/or its affiliates' plans for years prior to the year in which his employment is terminated, (C) reimbursement for all reasonable and customary expenses incurred by him in performing services for Alpha Services prior to the last day of his employment and (D) the amount of accrued, but unused, vacation time.

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(ii) a lump sum cash payment equal to 2.5 multiplied by the sum of: (A) Mr. Stetson’s base salary as of the last date of employment, plus (B) annual bonus amounts paid or payable in the 365 day period preceding Mr. Stetson’s last day of employment.
(iii) a pro rata share of any annual bonus, based on the target levels set for such bonuses, under Alpha Services and its affiliates' applicable plans for the year Mr. Stetson’s employment is terminated, based on the portion of such year that Mr. Stetson was employed by Alpha Services and any affiliate (the “Pro Rata Bonus”).
(iv) maintenance of Mr. Stetson and Mr. Stetson’s dependents dental and life insurance benefits and, provided that Mr. Stetson timely and properly elects COBRA continuation coverage, their coverage for health insurance. Such coverage or reimbursement is required to be provided to Mr. Stetson until Mr. Stetson attains the age of 65 or, if earlier, the date another employer provides Mr. Stetson benefits substantially comparable to the benefits provided by the applicable Alpha Services benefit plan (the “COBRA and Life Insurance Benefits”). Certain alternative arrangements are provided for in the Stetson Agreement if the foregoing arrangement is determined not to be permitted by applicable law and the terms of the applicable plan.
(v) reimbursement for (A) up to $15,000 of expenses for outplacement assistance services and other costs associated with seeking another employment position, and (B) up to $15,000 for certain reasonable relocation expenses (the “Outplacement Benefits”).
The parties expect the Stetson Severance Benefits to be triggered in connection with the mergers.
The following table sets forth the approximate value of each component payment and benefit of the Stetson Severance Benefits that may be received by Mr. Stetson if his employment is terminated by Alpha Services without Cause or he terminates his employment with Alpha Services with Good Reason.
Component Benefit and/or Payment
 
Amount (1)
Salary and Bonus
 
$6,855,419
Pro Rata Bonus
 
$1,136,438 (2)
COBRA and Life Insurance Benefits
 
$84,763
Outplacement Benefits
 
$15,000
Total
 
$8,091,620
______________
(1)
The amounts in the table do not reflect (i) the Cashout Amount, and (ii) up to $50,000 in legal fees.
(2)
The pro rata bonus is calculated based on the assumption that Mr. Stetson’s employment is terminated by Alpha Services without Cause or he terminates his employment with Alpha Services with Good Reason on [●].
In addition to severance benefits, under the Stetson Agreement, Mr. Stetson is entitled to a cash-out of his ANR stock options following a change in control where he would not otherwise be eligible to receive cash in exchange for the shares acquired upon the exercise of his ANR stock options (the “Cashout Amount”). This cash-out provision of the Stetson Agreement will apply to the mergers, if they are consummated. Under this provision, the Applicable Amount (as defined below) of the shares of Class C-1 common stock to be received in connection with the settlement of Mr. Stetson’s ANR Options pursuant to the Merger Agreement (after the satisfaction of any exercise price payment by the withholding of shares of Class C-1 common stock to satisfy any such obligation) will, immediately prior to the closing of the mergers, be reduced and instead, Alpha Services will make a cash payment to Mr. Stetson equal to the value of the shares of Class C-1 common stock, which, in the case of the mergers, would be based on a value per Class C-1 common share equal to the average of the weighted average prices per share of Contura common stock for the 15 consecutive trading days ending on the second to last trading day prior to the consummation of the mergers, multiplied by an exchange ratio of 0.4071. “Applicable Amount” means the lesser of (i) 50% of the aggregate number of shares of Class C-1 common stock underlying Mr. Stetson’s ANR Options and the other number of shares of ANR stock held by Mr. Stetson on a fully vested basis and (ii) the number of shares determined by dividing $3.5 million by the value of the ANR stock. The Cashout Amount resulting from the mergers would be approximately $3.5 million, assuming (i) the effective time of the mergers occurs on [●] and (ii) the averages of the

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weighted average prices per share of Contura common stock for the 15 consecutive trading days ending on the second to last trading day prior to the closing of the mergers is $71.51.
Under the Stetson Agreement, Mr. Stetson is bound by post-employment covenants restricting his ability to compete with Alpha Services, its affiliates and any successor, or otherwise interfere with such entity’s relationship with, or solicit, any of such entity’s customers for a period of two years following termination of employment. Mr. Stetson is also subject to ongoing confidentiality and employee non-solicit obligations under the Stetson Agreement.
Key Employee Separation Plan
Certain executive officers of ANR and its affiliates (other than Mr. Stetson) participate in the ANR, Inc. Key Employee Separation Plan (the, “KESP”). The KESP is intended to retain the services of key employees by providing eligible employees of ANR and its affiliates with certain severance and welfare benefits in the event their employment is involuntarily terminated (or constructively terminated). As a condition to receipt of any payment or benefits under the KESP, the participant must execute a release and a confidentiality, non-competition, non-solicitation and intellectual property agreement. The mergers will constitute a change in control under the KESP and the KESP provides for a change in control bonus and certain other payments and benefits upon a “Covered Change in Control Termination.”
Under the KESP, each participant will be entitled to receive a lump sum cash payment equal to a pro rata target bonus (as defined in the KESP) for the year in which the change in control occurs, which will be based on the portion of such year that participant was employed by ANR or one of its affiliates prior to the effective date of the change in control.
In addition, under the KESP, a participant is eligible to receive certain payments and benefits upon a “Covered Change in Control Termination." A Covered Change in Control Termination generally means, with respect to a participant, if, during the 90-day period immediately preceding a change in control, or on or within the one-year period immediately following a change in control, there is the occurrence of an “Involuntary Termination Associated with a Change in Control.” An “Involuntary Termination Associated With a Change in Control” generally means a participant's separation from service related to a change in control: (i) by ANR or one of its affiliates for any reason other than (A) Cause, (B) death or (C) disability; or (ii) on account of a Good Reason termination of employment by the participant.
“Cause” under the KESP generally means the occurrence of any of the following: (i) the participant's gross negligence or willful misconduct in the performance of the duties and services required, or any willful violation of an ANR policy prohibiting any type of unlawful harassment or retaliation; (ii) the participant's final conviction of, or plea of guilty or nolo contendere to, a felony or the participant engaging in fraudulent or criminal activity relating to the scope of the participant's employment; (iii) a material violation of ANR's Code of Business Ethics; (iv) any continuing or repeated failure to perform the duties as requested in writing by the participant's supervisor(s) or the board of directors after the participant has been afforded a reasonable opportunity to cure such breach; (v) the commission of a felony or crime involving moral turpitude; or (vi) conduct which brings ANR or any of its affiliates into public disgrace or disrepute in any material respect.
“Good Reason” under the KESP generally means the occurrence (without the participant’s written consent) of any of the following: (i) A material reduction in the participant's (A) annual base pay or (B) target bonus opportunity (unless such reduction relates to an across-the-board reduction similarly affecting all or substantially all other executives of ANR and its affiliates); (ii) a failure to provide the participant with the opportunity to materially participate in any material equity-based plans of ANR and its affiliates on a similar basis to those of other similarly situated executives of ANR and its affiliates; (iii) ANR or any of its affiliates makes or causes to be made a material diminution in the participant’s authority, duties, or responsibilities of the supervisor to whom the participant is required to report; (iv) a relocation of ANR’s principal place of business, or of the participant's own office as assigned to the participant by ANR or one of its affiliates to a location that increases the participant's normal work commute by more than 50 miles; (v) illegal activity on the part of ANR or ANR’s board of directors that has certain material adverse effects specified in the KESP; or (vi) any failure to comply with certain successor provisions of the KESP, or any conduct or act that (without the participant’s consent) would have the effect of invalidating, or depriving the participant of the benefit of, any of the participant’s rights or benefits under the KESP. The participant has certain notice obligations, and ANR and its affiliates have certain rights to cure the basis for which Good Reason has been asserted by the participant under the KESP.

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In connection with a Covered Change in Control Termination, and subject to the participant timely executing a release agreement, a participant will generally receive the following payments and benefits:
(i) (A) any base pay earned, accrued or owing to him or her through the date of termination, (B) any individual bonuses or individual incentive compensation not yet paid, but due and payable under ANR and/or its affiliates' plans for years prior to the year of the participant's termination of employment, (C) reimbursement to the participant for all reasonable and customary expenses incurred by the participant in performing services for ANR prior to the date of termination, and (D) the amount of accrued, but unused, vacation time according to ANR’s records.
(ii) a lump sum cash payment equal to the applicable Benefit Factor (as specified below) multiplied by the sum of: (A) the participant's base pay in effect as of the date of termination; plus (B) the participant's target bonus for the year in which the date of termination occurs, subject to any offset under the KESP.
(iii) a pro rata share of any individual annual cash incentive bonuses or individual annual cash incentive compensation, based on the target levels set for such bonuses, under ANR and its affiliates' applicable plans for the year of the participant's termination of employment based on the portion of such year that the participant was employed by ANR and any affiliate.
(iv) maintenance of the participant's paid coverage for health insurance (through the payment of the participant's COBRA premiums) and other dental and life insurance benefits (through the reimbursement of participant’s premiums upon conversion to an individual policy) until the participant attains the age of 65, or, if earlier the date another employer provides the participant benefits substantially comparable to the benefits provided by the benefit plans (which the participant must provide prompt notice with respect thereto to ANR), or (c) the expiration of the COBRA Continuation Period (as defined in the KESP).
(v) reimbursement of life insurance premiums (subject to certain limitations as set forth in the KESP).
(vi) reimbursement for reasonable outplacement assistance services and other expenses associated with seeking another employment position for the participant, in an amount up to $15,000.
(vii) if (A) the participant has relocated more than 50 miles as a condition of accepting or continuing his or her employment with ANR or its affiliates and (B) elects within six (6) months following a Covered Change in Control Termination to relocate outside of the greater metropolitan area where the participant lives prior to a Covered Change of Control Termination, then such participant shall be eligible for one, but not both, of the following programs (x) if the participant sells his or her residence without electing to utilize the program described in subparagraph (y) below, then such participant shall receive reimbursement for reasonable costs and fees associated with selling his or her residence that are actually incurred, up to a maximum amount of 6% of the sales price of the residence; or (y) to have ANR purchase his or her residence if he or she is not successful in procuring a buyer for such residence after listing it for a period of 120 days at fair market value as determined by two independent appraisers, at least one of which is selected by the participant but both of which are paid for by the Company.
(viii) any equity awards or grants, including but not limited to restricted stock, restricted stock units, and stock options, made by ANR or any affiliate on or after the effective date of the KESP, will become fully vested on the date of termination, and all stock options held by the participant shall be, and as applicable remain, exercisable until the earlier to occur of: (A) the expiration date of the applicable option term or (B) the one (1) year anniversary of the participant's date of termination; provided, however, that the payment of performance-based awards will continue to be subject to the attainment of the performance goals as specified in the applicable plan or award agreement.

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The applicable benefit factor for each participant in the KESP is as follows:
Pay Grade
 
Covered Change in Control Termination Benefit Factor
 
Representative Job Position
28
 
2
 
President
27
 
1.5
 
High Executive Vice President
26
 
1.5
 
Chief Financial Officer/Chief Operations Officer/ Executive Vice President
25
 
1.5
 
General Counsel/Chief Administrative Officer
24
 
1.5
 
SVP, Met
SVP, Thermal
In order to receive severance payments under the KESP, participants are required to agree to certain restrictive covenants, including a confidentiality covenant and a one-year non-compete and non-solicitation covenant.
The following table sets forth the total approximate value of the payments and benefits that may be received by each executive officer of Alpha under the KESP as a result of a Covered Change in Control Termination.
Name
 
Amount (1)
Samuel Hopkins
 
$
2,371,226

Jason Whitehead
 
$
2,227,302

Judy Hill
 
$
1,736,291

Daniel Horn
 
$
1,220,186

William Davison
 
$
1,220,186

Andrew McCallister
 
$
1,795,533

______________
(1)
The total amount for each individual includes a pro rata bonus, which is calculated based on the assumption that each individual receives payments under the KESP as a result of a covered Change in Control Termination that occurs on [●].
Stock Option Agreements
Certain directors and executive officers of ANR hold stock options in ANR granted pursuant to the ANR, Inc. 2017 Equity Incentive Plan (the “Equity Plan”). All option agreements under the Equity Plan provide that all unvested stock options will become fully vested immediately prior to but contingent upon the occurrence of a change in control (the mergers will qualify as a change in control), provided the optionee remains in continuous, active service with ANR through the consummation of such Change in Control. Pursuant to the merger agreement, option holders will receive common stock of Contura with respect to the value of the option holder’s options.

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The following table sets forth the total approximate value of Contura common stock (assuming a price per share of $71.51 at the effective time of the mergers) that may be received by certain executive officers and directors of Alpha if the mergers are consummated:
Name
 
Amount
David Stetson
 
$12,384,198 (1)

Samuel Hopkins
 
$
6,192,099

Jason Whitehead
 
$
6,192,099

Judy Hill
 
$
6,192,099

Daniel Horn
 
$
3,096,049

William Davison
 
$
3,096,049

Andrew McCallister
 
$
6,192,099

Harvey Tepner
 
$
3,096,049

John Lushefski
 
$
3,096,049

James Martin
 
$
1,548,025

Stephanie Timmermeyer
 
$
1,548,025

______________
(1)
Of Mr. Stetson’s total amount, Mr. Stetson is expected to receive a cash amount of $3,499,983 to be paid to Mr. Stetson in lieu of 48,946 shares of Contura common stock.
Restricted Stock Unit Agreements
Certain directors of Alpha hold restricted stock units (“RSUs”) in ANR granted pursuant to the Equity Plan.  In connection with the mergers, all outstanding ANR RSUs will be assumed by Contura and automatically converted into Contura RSUs. The number of shares of Contura common stock underlying each Contura RSU award will be calculated by multiplying the number of ANR RSUs by the exchange ratio of 0.4071.  Each Contura RSU will otherwise be subject to the same terms as conditions (including vesting terms) as were applicable to the corresponding ANR RSU.
280G Reimbursement Agreements
Pursuant to the merger agreement, ANR is permitted to enter into one or more plans, agreements or arrangements (each, a “Section 280G Reimbursement Agreement”) for the benefit of the individuals listed in the chart below (the “Disqualified Officers”) to provide that ANR will reimburse (or advance) the Disqualified Officer (on a tax-neutral basis to such Disqualified Officer) for any excise tax incurred by the Disqualified Officer under Section 4999 of the Code (including any interest, penalties and/or additional taxes incurred) or for any claims by the Internal Revenue Service (“IRS”) related thereto (including any reasonable out of pocket defense costs and expenses) based upon or related to the treatment or characterization of ANR Options granted to the Disqualified Officers pursuant to the ANR equity-based plan as “excess parachute payments” for purposes of Sections 280G and 4999 of the Code (the “280G Tax Liabilities”). Except for costs and expenses not to exceed $100,000 in the aggregate for all Disqualified Officers. ANR will not be permitted to make any reimbursements or advances except solely to the extent that (i) ANR has been or is concurrently being fully reimbursed for the payment or the payment is being made directly by an insurance policy obtained by ANR in respect of the 280G Tax Liabilities (the “280G Tax Policy”) and (ii) ANR is not required to bear any cost or expense other than as set forth below. On June 28, 2018, ANR entered into Section 280G Reimbursement Agreements with the seven Disqualified Officers set forth in the table below and obtained a 280G Tax Policy for a term of seven years, which names these Disqualified Officers as additional insureds. ANR will use commercially reasonable efforts to maintain (and not cancel or otherwise terminate) the 280G Tax Policy, and is not required to incur costs or expenses except to the extent covered by the 280G Tax Policy (subject to the $100,000 limit described above). The aggregate premiums ANR has paid or will pay to obtain and maintain the 280G Tax Policy will not exceed $2,000,000.
The following table sets forth the approximate value of the payments that may be received by each individual who is party to a Section 280G Reimbursement Agreement with Alpha if (and only if) there is an adverse determination by the IRS with respect to the ANR Options that results in 280G Tax Liabilities to the Disqualified Officers and ANR continues to

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maintain the 280G Tax Policy. The amounts shown in the table below are estimates based on multiple assumptions that may or may not actually occur or be accurate on the relevant date, including the following assumptions: (i) the effective time of the mergers occurs on [●], (ii) the price per share of Contura common stock at the effective time of the mergers is $71.51, (iii) each individual (other than Mr. Stetson) receives payments pursuant to the KESP as a result of a Covered Change in Control Termination, at the effective time of the mergers, (iv) the federal tax rate applicable to each individual’s payments is 39.35% and the state tax rate applicable to each individual’s payments ranges from 0% to 6.5% depending on the individual’s residency and (v) with respect to Mr. Stetson only, that he receives the Stetson Severance Benefits (as a result of a qualifying termination at the effective time of the mergers).
Name
 
Potential Tax Reimbursement Amount
David Stetson
 
$
6,961,716

Samuel Hopkins
 
$
3,796,665

Jason Whitehead
 
$
4,171,049

Judy Hill
 
$
4,336,689

Daniel Horn
 
$
1,769,825

William Davison
 
$
1,816,616

Andrew McCallister
 
$
4,209,134

Gross Up Payments
In connection with the merger, and pursuant to the merger agreement, Contura has agreed, together with the first lump sum payment payable in respect of the separation from service of any disqualified individual (within the meaning of Code Section 280G) eligible to receive benefits under the KESP, to make an additional cash payment to each such disqualified individual in respect of taxes due under Code Section 4999 equal in amount to the lesser of (i) the amount set forth with respect to such individual below and (ii) the actual Code Section 4999 excise tax gross-up amount owed to such disqualified individual. Such disqualified individuals for which such lump sum payments are set forth in the table below. The amounts shown in the table below are estimates based on multiple assumptions that may or may not actually occur or be accurate on the relevant date, including the following assumptions: (i) the effective time of the mergers is [●], (ii) the price per share of Contura common stock at the effective time of the mergers is $65.95, (iii) each individual receives payments pursuant to the KESP as a result of a Covered Change in Control Termination, at the effective time of the mergers, and (iv) the federal tax rate applicable to each individual’s payments is 39.35% and the state tax rate applicable to each individual’s payments ranges from 0% to 6.5% depending on the individual’s residency.
Name
 
Amount
Samuel Hopkins
 
$
754,399

Judy Hill
 
$
818,245

Andrew McCallister
 
$
611,292

Indemnification of Directors and Officers and Continuation of Directors’ and Officers’ Insurance
Merger Agreement
Pursuant to the merger agreement, following the effective times of the mergers, ANR and Holdings’ directors and executive officers are entitled to continued indemnification and insurance coverage relating to their service as ANR and/or Holdings directors and officers. For a more complete description, please see the section of this joint proxy statement and prospectus entitled “The Merger Agreement—Covenants and Agreements” beginning on page 151.

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Indemnification Agreements
On the date the merger agreement was executed, ANR and Holdings entered into indemnification agreements with each of their respective directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the their respective certificates of incorporation and bylaws, as currently in effect, and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of ANR or Holdings for which indemnification is sought.
Pursuant to the indemnification agreements, Holdings and ANR agreed to indemnify and hold harmless each of their respective directors and executive officers to the fullest extent permitted by law to extent that he or she was, is or becomes, or is threatened to be made, a party to or witness or other participant in, or was, is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with, any claim, action or proceeding (other than those initiated by the company) by reason of (i) the fact that the indemnitee is or was a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of such company, any of its subsidiaries or any other entity at the request of such company or one of its subsidiaries or (ii) any action or inaction on the part of the indemnitee while acting in such capacity. Each indemnification agreement provides that indemnification is only required if the indemnitee acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of ANR or Holdings (as applicable) and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
The applicable indemnifying party (i.e., ANR or Holdings) under the indemnification agreements also agreed to indemnify and hold harmless each indemnitee to the fullest extent permitted by applicable law against certain expenses (other than amounts paid in settlement, judgments and fines) actually and reasonably incurred by or on behalf of applicable indemnitee in connection with a claim, action or proceeding (i) asserted by such indemnifying party, but only if the indemnitee acted in good faith and in a manner the indemnitee reasonably believed to be in or not opposed to the best interests of such indemnifying party, or (ii) to the extent the indemnitee is the prevailing party in connection with a third party proceeding. Each indemnification agreement also requires the indemnifying party to pay in advance expenses incurred by an indemnitee in connection with a claim, action or proceeding for which the indemnitee is (or may be) entitled to indemnification; provided that the amount of such advances must be returned to the extent the indemnitee is determined not to be entitled to indemnification under the indemnification agreements.
Each indemnification agreement also provides that, so long as the applicable indemnitee continues to serve as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of ANR or Holdings, as applicable, its subsidiaries or any other entity at the request of ANR or Holdings and for a specified period of time thereafter, ANR or Holdings will purchase and maintain in effect one or more directors and officers liability insurance policy providing coverage at least comparable to that provided pursuant to existing insurance policies. Each indemnitee that is a party to an indemnification agreement is entitled to be covered by such policy or policies in such a manner as to provide him or her the same rights and benefits as are accorded to the most favorably insured of directors of the indemnifying company, if the indemnitee is a director of such company, or of the indemnifying company’s officers, if the indemnitee is not a director of such company.
The indemnification agreements described above will remain in effect following the effective times of the mergers.

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THE MERGER AGREEMENT
The following is a summary of the material aspects of the merger agreement attached to this joint proxy statement and prospectus as Annex A , which is incorporated herein by reference. While the following description is intended to cover the material terms of the merger agreement, the summary may not contain all of the information that is important to you. We encourage you to read carefully the merger agreement and this entire joint proxy statement and prospectus.
The merger agreement and the summary of its terms in this joint proxy statement and prospectus have been included to provide information about the terms and conditions of the merger agreement. The terms and information in the merger agreement are not intended to provide any other public disclosure of factual information about Contura, Alpha or any of their respective subsidiaries or affiliates. The representations, warranties, covenants and agreements contained in the merger agreement are made by Contura and Alpha only for the purposes of the merger agreement and are qualified and subject to certain limitations and exceptions agreed to by Contura and Alpha in connection with negotiating the terms of the merger agreement. In particular, in your review of the representations and warranties contained in the merger agreement and described in this summary, it is important to bear in mind that the representations and warranties were made solely for the benefit of the parties to the merger agreement, were negotiated for the purpose of allocating contractual risk among the parties to the merger agreement rather than to establish matters as facts and are qualified by confidential disclosure schedules shared by the parties. The representations and warranties also may be subject to a contractual standard of materiality or material adverse effect different from those generally applicable to stockholders, and reports and documents filed with the SEC and in some cases may be qualified by disclosures made by one party to the other, which are not reflected in the merger agreement. Moreover, information concerning the subject matter of the representations and warranties, which do not purport to be accurate as of the date of this joint proxy statement and prospectus, may have changed since the date of the merger agreement.
For the foregoing reasons, the representations, warranties, covenants and agreements and any descriptions of those provisions should not be read alone or relied upon as characterizations of the actual state of facts or condition of Contura, Alpha or any of their respective subsidiaries or affiliates. Instead, such provisions or descriptions should be read only in conjunction with the other information provided elsewhere in this joint proxy statement and prospectus.
The Mergers; Closing
Pursuant to the merger agreement, and in accordance with Delaware law, at the effective time of the mergers, MergerSub1, a wholly-owned subsidiary of Contura will merge with and into Holdings, and MergerSub2, a wholly-owned subsidiary of MergerSub1, will merge with and into ANR. Holdings and ANR will continue as the surviving corporations of the mergers and as direct and indirect wholly-owned subsidiaries of Contura.
The closing of the mergers will occur at a date and time agreed by the parties, but no later than the fourth business day following the date on which all of the conditions to the mergers, other than conditions that, by their terms, cannot be satisfied until the closing date (but subject to satisfaction of such conditions) have been satisfied or waived (to the extent permitted by applicable laws and regulations), unless the parties agree on another time. Contura and Alpha expect to complete the mergers in the fourth quarter of this year. However, they cannot assure you that such timing will occur or that the mergers will be completed as expected.
On or before the closing date of the mergers, Contura and Alpha will file certificates of merger with the Secretary of State of the State of Delaware. The effective time of the mergers will be the time Contura and Alpha file the certificates of merger or at a later time upon which Contura and Alpha may need to agree and specify in the certificates of merger.
Certificate of Incorporation and Bylaws
The merger agreement contemplates that prior to the effectiveness of the mergers, the certificate of incorporation of Contura will be amended and restated to, among other things, increase the number of authorized shares of Contura common stock to 50,000,000, as is necessary to provide Contura with sufficient authorized shares to issue as consideration in the mergers. This amendment is referred to as the “Contura charter amendment.” Contura stockholder approval of the Contura charter amendment has already been obtained.

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Upon the effectiveness of the mergers, the certificate of incorporation and bylaws of MergerSub1 will become the certificate of incorporation and bylaws of Holdings (except that the certificate of incorporation and bylaws will reflect that the name of Holdings will be “Alpha Natural Resources Holdings, Inc.”) and the certificate of incorporation and bylaws of MergerSub2 will become the certificate of incorporation and bylaws of ANR (except that the certificate of incorporation and bylaws will reflect that the name of ANR will be “ANR, Inc.”).
Directors and Officers
Effective as of the closing of the mergers, the size of the combined company’s board of directors will be expanded to nine directors. Five board seats will be filled by the current members of Contura’s board of directors and four board seats will be filled by individuals designated by Alpha. The initial Alpha designees to be appointed to the combined company’s board of directors at closing are expected to be John E. Lushefski, Daniel J. Geiger, David J. Stetson and Harvey L. Tepner, unless Messrs. Lushefski, Geiger or Tepner fail to meet applicable independence standards as of the closing, in which case such individual will not be appointed to the combined company’s board of directors at closing. If any of Messrs. Lushefski, Geiger, Stetson or Tepner is unable to or has declined to serve on the combined company’s board of directors prior to the closing (or is not appointed to the combined company’s board of directors because he failed to meet applicable independence standards as of the closing), Alpha may designate a replacement subject to the approval of Contura’s board of directors, which cannot be unreasonably withheld (unless such replacement fails to meet applicable independence standards, in which case Contura’s board of directors may withhold its approval at its reasonable discretion exercised in good faith).
Following the closing of the mergers and through the completion of the combined company’s 2019 annual meeting of stockholders, the size of the combined company’s board of directors may not be changed except to reduce the size of the board in the event of any resignation or other cessation of service of one or more directors, and the combined company’s board of directors must nominate for election, unanimously recommend for election and solicit proxies in favor of the election of, each of the Alpha designees to the combined company’s board of directors, unless the board reasonably determines upon the advice of counsel, applying the same standards and principles with respect to all directors of Contura, that the taking of such action would reasonably be expected to constitute a violation of its fiduciary duties.
Each Alpha designee serving on the combined company’s board of directors shall be entitled to compensation for services rendered to the board (including any committee of the board) at levels, and otherwise on terms, comparable to other members of the combined company’s board of directors who are not employees of the combined company or its subsidiaries and to indemnification protection and liability insurance coverage on the same terms as other members of the combined company’s board of directors.
Upon the closing of the mergers, the directors and officers of MergerSub1 will become the directors and officers of Holdings and the directors and officers of MergerSub2 will become the directors and officers of ANR.
Merger Consideration
Upon the effectiveness of the mergers each share of Holdings common stock and each share of Class C-1 common stock, in each case outstanding immediately prior to the effective times of the mergers (other than shares held by Holdings, ANR or Contura and shares held by any holder of Holdings common stock or Class C-1 common stock with respect to which appraisal rights have been properly demanded and not properly withdrawn), will be converted into the right to receive 0.4071 fully paid and nonassessable shares of Contura common stock. All shares of Class C-2 common stock and all shares of Holdings common stock and Class C-1 common stock held by Holdings, ANR or Contura will be canceled for no consideration in connection with the mergers.
Fractional Shares
No fraction of a share of Contura common stock will be issued by virtue of either of the mergers. Instead, holders of Class C-1 common stock and Holdings common stock who would otherwise be entitled to receive a fraction of a share of Contura common stock will receive an amount in cash (rounded up to the nearest whole cent and without interest) determined by multiplying the fractional share interest by the arithmetic average of the dollar volume-weighted average price of Contura common stock on each of the 15 consecutive trading days ending on the second to last trading day prior to the effective time of the mergers.

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Exchange Procedures
Prior to the closing of the mergers, Contura will enter into an agreement with an exchange agent selected by Contura and reasonably acceptable to Alpha, to handle the exchange of shares of Contura common stock in connection with the mergers, including the payment of cash for fractional shares. Immediately prior to the closing of the mergers, Contura will deposit with the exchange agent, for the benefit of the holders of Holdings common stock and Class C-1 common stock, the applicable number of shares of Contura common stock to be issued as merger consideration and cash in an amount sufficient to make payments in lieu of fractional shares and in respect of any dividends or distributions on Contura common stock with a record date after the closing of the mergers. Contura will take all actions necessary to ensure that the amount deposited is sufficient to make such cash payments.
As soon as reasonably practicable after the closing of the mergers, and in any event within three business days thereafter, Contura will cause the exchange agent to mail to each holder of record of Holdings common stock or Class C-1 common stock, a letter of transmittal and instructions explaining how to surrender stock certificates or book-entry shares representing shares of Holdings common stock or Class C-1 common stock in exchange for the merger consideration.
After the closing of the mergers, and upon surrender of an applicable stock certificate or book-entry share to the exchange agent, together with a letter of transmittal, duly executed, and other documents as may reasonably be required by the exchange agent, the holder of such stock certificate or book-entry share will be entitled to receive the merger consideration, in the form of (i) that number of whole shares of Contura common stock that such holder has the right to receive pursuant to the merger agreement and (ii) a check for the full amount of cash that such holder has the right to receive pursuant to the provisions of the merger agreement, including cash in lieu of fractional shares, and dividends and other distributions on Contura common stock with a record date after the closing of the mergers, and such stock certificates or book entries evidencing book-entry shares so surrendered will be cancelled. No interest will be paid or will accrue on any merger consideration payable under the merger agreement. If payment is to be made to a person other than the person in whose name the certificate or book-entry share surrendered is registered, the certificate or book-entry share so surrendered must be properly endorsed or otherwise in proper form for transfer and the person requesting such payment must pay any transfer or other taxes required by the reason of the payment to a person other than the registered holder of the certificate or book-entry share so surrendered, unless the person requesting such payment can establish to the satisfaction of Contura that such tax has been paid or is not applicable.
If any stock certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the stock certificate to be lost, stolen or destroyed and, if required by the combined company, the posting by such person of a bond in a reasonable amount as Contura may direct as indemnity against any claim that may be made against it with respect to the stock certificate, the exchange agent will issue, in exchange for such lost, stolen or destroyed stock certificate, the merger consideration payable with respect to the shares of Holdings common stock or Class C-1 common stock represented by such certificate.
Stock certificates should not be returned with the enclosed proxy card(s). Stock certificates should be returned with a validly executed transmittal letter and accompanying instructions that will be provided to Alpha stockholders following the closing of the mergers.
At the closing of the mergers, each certificate representing shares (or uncertificated shares in book entry form) of Holdings common stock and Class C-1 common stock that has not been surrendered will represent only the right to receive, upon such surrender and without any interest, the merger consideration payable with respect to such shares Holdings common stock or Class C-1 common stock. Following the closing of the mergers, no further registrations of transfers on the stock transfer books of Alpha of the shares of Holdings common stock or Class C-1 common stock will be made. If, after the closing of the mergers, certificates or book-entry shares representing shares of Holdings common stock or Class C-1 common stock are presented to Contura for any reason, they will be cancelled and exchanged as described above.
Twelve months after the closing of the mergers, Contura may require the exchange agent to deliver to Contura all cash and shares of Contura common stock remaining in the exchange fund. Thereafter, Alpha stockholders must look only to Contura for payment of the merger consideration on their shares of Holdings common stock or Class C-1 common stock.

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Treatment of Alpha Equity Awards
Immediately prior to the effective time of the mergers, each outstanding option to purchase Class C-1 common stock (an “ANR Option”), whether or not vested, will be automatically converted into the number of shares of Class C-1 common stock equal in value (based on a per share value equivalent to the weighted average price of Contura common stock during a 15 trading day period prior to the mergers, divided by the exchange ratio) to the aggregate intrinsic (or “in-the-money”) value of such ANR Option. Such Class C-1 common stock will be issued to the applicable ANR Option holder as book-entry shares and will be subject to applicable withholding taxes. Each holder will be given the opportunity to elect whether to satisfy the applicable tax withholding obligation by paying cash or by reducing the number of shares of Class C-1 common stock that will be delivered to such holder. As of the effective time of the mergers, shares of Class C-1 common stock received in connection with the conversion of the ANR Options will be converted into Contura common stock on the same terms as are applicable to other ANR stockholders, as set forth in “Summary — The Mergers — What Alpha Stockholders Will Receive in the Mergers” beginning on page 6.
At the effective time of the mergers, each outstanding ANR restricted stock unit (an “ANR RSU”) granted under any ANR equity-based plan, whether or not then vested, will be assumed by Contura and converted automatically into a restricted stock unit relating to shares of Contura common stock (a “Contura RSU”). The number of shares of Contura common stock underlying the Contura RSU award will be calculated by multiplying the number of ANR RSUs held by the holder immediately prior to the effective time of the mergers by the exchange ratio of 0.4071. Each Contura RSU will otherwise be subject to the same terms and conditions (including as to continued vesting) as were applicable to the corresponding ANR RSU.
Representations and Warranties
The merger agreement contains representations and warranties made by Contura to Alpha and by Alpha to Contura, which are subject, in some cases, to specified exceptions and qualifications, including exceptions and qualifications that would not have a material adverse effect on Contura or Alpha, as applicable. These representations and warranties relate to, among other things:
•
due organization, good standing and the requisite corporate power and authority to carry on their respective businesses;
•
capital structure and equity securities;
•
ownership of subsidiaries;
•
corporate power and authority to enter into the merger agreement and due execution, delivery and enforceability of the merger agreement;
•
board of directors approval;
•
absence of conflicts with organizational documents, breaches of contracts and agreements, liens upon assets and violations of applicable law resulting from the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement;
•
absence of required governmental or other third party consents in connection with execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement other than governmental filings specified in the merger agreement;
•
preparation of financial statements in accordance with U.S. generally accepted accounting principles;
•
absence of any material complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of internal accounting controls since July 26, 2016;
•
absence of any liabilities other than as and to the extent reflected or reserved against in the consolidated audited balance sheet as of December 31, 2017, incurred in the ordinary course of business consistent with past practice since December 31, 2017 or that would not have or reasonably be expected to have a material adverse effect;

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•
absence of specified changes or events, and conduct of business in the ordinary course, since December 31, 2017;
•
absence since December 31, 2017 of any change, effect, event or occurrence that has had, or would reasonably be expected to have a material adverse effect;
•
absence of misleading information contained or incorporated into this joint proxy statement and prospectus and the registration statement of which this joint proxy statement and prospectus forms a part;
•
employee benefits matters and ERISA compliance since July 26, 2016;
•
labor matters and compliance with labor and employment law since July 26, 2016;
•
absence of proceedings before any governmental entity;
•
tax matters;
•
compliance with applicable laws;
•
permits under applicable mining laws and surety bonds;
•
environmental matters and compliance with environmental laws since July 26, 2016;
•
intellectual property;
•
real property and assets;
•
certain material contracts;
•
insurance;
•
major suppliers and customers;
•
absence of unlawful payments;
•
interested party agreements;
•
affirmative vote required by each party’s stockholders
•
receipt of an opinion from each party’s financial advisors; and
•
no brokers’ or finders’ fees.
Alpha made additional representations and warranties to Contura in the merger agreement, including representations and warranties relating to the inapplicability of takeover laws, the recommendation by the boards of directors of Holdings and ANR to their respective stockholders to adopt the merger agreement and Alpha’s determination that Contura constitutes a Qualified Buyer, as such term is defined under the Bankruptcy Plan.
For purposes of the merger agreement, a “material adverse effect” on Contura or Alpha means:
•
any change, effect, circumstance, event or occurrence that is materially adverse to the assets, liabilities, business, condition (financial or otherwise) or results of operations of such party and its subsidiaries, taken as a whole, other than changes, effects, circumstances, events or occurrences to the extent resulting from:
◦
general changes after the date of the merger agreement in general economic conditions or in the industries in which such party and its subsidiaries operate, except to the extent such change, effect, circumstance, event or occurrence has a material and disproportionate effect on such party and its subsidiaries, taken as a whole, compared with other companies operating in the industries in which such party and is subsidiaries operate (and in any case, only such disproportionate impact will be taken into account for purposes of determining if a material adverse effect on such party has occurred);

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◦
changes in law of general applicability or interpretations thereof by governmental entities or changes in generally accepted accounting principles or in accounting standards, except to the extent such change, effect, circumstance, event or occurrence has a material and disproportionate effect on such party and its subsidiaries, taken as a whole, compared with other companies operating in the industries in which such party and is subsidiaries operate (and in any case, only such disproportionate impact will be taken into account for purposes of determining if a material adverse effect on such party has occurred);
◦
the execution, announcement, pendency or performance of the merger agreement or the consummation of the transactions contemplated by the merger agreement, including the impact thereof on relationships with customers, suppliers, distributors, partners or employees, or any litigation arising relating to the merger agreement or the transactions contemplated by the merger agreement;
◦
acts of war or terrorism (or the escalation of the foregoing), except to the extent such change, effect, circumstance, event or occurrence has a material and disproportionate effect on such party and its subsidiaries, taken as a whole, compared with other companies operating in the industries in which such party and is subsidiaries operate (and in any case, only such disproportionate impact will be taken into account for purposes of determining if a material adverse effect on such party has occurred);
◦
a decrease in the market price or volume of the shares of such party’s common stock in and of itself (and not the underlying causes thereof); and
◦
the fact, in and of itself (and not the underlying causes thereof), that such party or any of its subsidiaries failed to meet any projections, forecasts or revenue or earnings predictions; and
•
any change, effect, circumstance, event or occurrence that is materially adverse to the ability of such party to timely perform its obligations under the merger agreement or to timely consummate the transactions contemplated by the merger agreement.
The representations and warranties contained in the merger agreement will not survive the consummation of the mergers, but they form the basis of specified conditions to the parties’ obligations to complete the mergers.
Covenants and Agreements
Operating Covenants
Each of Contura and Alpha has agreed that, prior to the closing of the mergers, it and its subsidiaries will carry on their businesses in the ordinary course consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and other key employees and preserve their relationships with persons having material business dealings with them. With specified exceptions set forth in the merger agreement, each of Contura and Alpha has agreed, among other things, not to, and not to permit its subsidiaries to:
•
amend its certificate of incorporation or bylaws, subject to certain exceptions expressly contemplated by the merger agreement;
•
subject to certain limited exceptions issue, sell, pledge or grant options or other rights to acquire any shares of its capital stock, any other voting securities or any securities convertible into any such shares, voting securities or convertible securities;
•
acquire or offer to acquire any equity interest in, or assets of, any person, except acquisitions involving consideration not in excess of $2 million in the aggregate, provided that any such acquisition (i) involves only cash consideration, (ii) involves any business activity currently conducted by such party or its subsidiaries or is reasonably related thereto, (iii) would not reasonably be expected to prevent or materially delay the consummation of the mergers, (iv) would not reasonably be likely to prevent the mergers from being a tax-free reorganization, (v) would not materially delay the SEC review of the Form S-4 relating to the mergers, (vi) would not materially

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adversely affect or materially delay obtaining antitrust clearances and approvals required in connection with the mergers and (vii) would not require approval of such party’s stockholders;
•
split, combine or reclassify any of its capital stock;
•
declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends or distributions paid by a direct or indirect wholly owned subsidiary to its stockholders;
•
acquire or redeem, or amend rights or terms of, any shares of its or its subsidiaries’ capital stock or any other securities of such party or any of its subsidiaries or any rights, warrants or options to acquire any of those shares or other securities;
•
adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or in any other reorganization;
•
make or offer to make any acquisition of any business, assets or securities, or any sale, lease or other disposition of any business, assets or securities other than (i) purchases, sales or leases of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice (except, in the case of Alpha, the sale of coal pursuant to contracts that have a term in excess of one year that do not contain a price re-opener or price adjustment provision without a specified collar), (ii) permitted capital expenditures or (iii) as otherwise permitted under the merger agreement;
•
make any loans, advances (other than advances pursuant to commercial transactions in the ordinary course of business consistent with past practice) or capital contributions to, or investments in, any person (other than wholly owned subsidiaries) in excess of $1 million in the aggregate;
•
except the entry into contracts for purchases, sales or leases of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice (except, in the case of Alpha, contracts for the sale of coal that have a term in excess of one year that do not contain a price re-opener or price adjustment provision without a specified collar) or as otherwise permitted by the merger agreement, enter into, amend in any material respect, renew, terminate, or grant any release of material right or claim under any material contract;
•
incur, repay or prepay any indebtedness, other than as expressly permitted by the merger agreement;
•
assume, guarantee, endorse or otherwise become liable for the obligations of any other person (other than wholly owned subsidiaries) other than in connection with an acquisition permitted by the merger agreement;
•
mortgage, pledge or otherwise encumber any of its properties or material assets other than certain permitted liens or in connection with an acquisition permitted by the merger agreement;
•
materially change the accounting principles used by it except as required by GAAP or applicable law;
•
make or change any material election with respect to taxes, change any annual tax accounting period, adopt or change any material method of tax accounting, enter into any material closing agreement with respect to taxes or settle or surrender any material tax claim, audit or assessment;
•
except as otherwise permitted by the merger agreement, adopt or enter into, amend in any material respect or terminate any employee benefit plan, agreement or arrangement;
•
make or commit to make unbudgeted capital expenditures that exceed $5 million in the aggregate;
•
compromise or settle any proceeding before a government authority for an amount in excess of $1 million individually or $5 million in the aggregate;
•
take any action that would reasonably be expected to prevent the mergers from qualifying as a tax-free reorganization; or
•
authorize, or commit or agree to take, any of the foregoing actions.

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In addition, Alpha agreed in the merger agreement that, prior to the closing of the mergers and subject to certain exceptions, it will not and will not permit its subsidiaries to, (i) enter into any new, or amend, terminate or renew any existing, employment, severance, change of control, indemnification, termination, severance, consulting, incentive award, salary continuation or similar agreements or arrangements with or for the benefit of any current or former Alpha employee or other service provider, or grant any increases in the compensation, perquisites or benefits to any current or former employee, consultant, director or individual independent contractor, except for increases in base compensation or wages in the ordinary course of business and consistent with past practice of up to 3% in the aggregate for non-officer employees whose base salary or annual wage rate is less than $175,000 and whose title is director or below, (ii) accelerate the vesting or payment of the compensation payable or the benefits provided or to become payable or provided to any current or former employee, consultant, director or individual independent contractor, or otherwise pay any amounts not due to any such individual under applicable law or the terms of any employee benefit plan, agreement or arrangement, including with respect to severance or (iii) fund or make any contribution to any employee benefit plan, agreement or arrangement or trust not required to be funded or contributed to.
Special Meetings and Board Recommendation
Alpha has agreed that both the ANR and Holdings boards of directors will convene and hold a meeting of their respective stockholders, recommend that such stockholders adopt the merger agreement and use their commercially reasonable efforts to obtain such approvals, subject to a change of board recommendation specifically permitted by the merger agreement. Unless the merger agreement is validly terminated, ANR and Holdings have agreed to hold the special meetings and submit the merger agreement for approval even if there has been a change of board recommendation. Alpha has agreed to cause the Holdings special meeting of the Holdings stockholders and the ANR special meeting of the ANR stockholders to occur on the same date and during substantially the same time.
Non-Solicitation
Alpha has agreed, and agreed to cause its subsidiaries and its and their respective officers, directors, employees and representatives, to cease any solicitation, encouragement, discussion or negotiation with any party (other than Contura or its representatives) with respect to an acquisition proposal. An acquisition proposal means any inquiry, offer or proposal from any person (other than Contura or its affiliates) after the date of the merger agreement relating to a transaction or a potential transaction (pursuant to a merger, consolidation, business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or other transaction), other than the mergers, structured to permit such person to acquire beneficial ownership of:
•
at least 20% of the assets or businesses of either Holdings or ANR and its subsidiaries; or
•
at least 20% of the equity or any class of equity of either Holdings or ANR or any of their subsidiaries.
In addition, Alpha has agreed that it will not, and will direct its subsidiaries and its and their respective officers, directors, employees and representatives not to, directly or indirectly:
•
initiate, solicit or knowingly encourage (including by way of furnishing non-public information related to Alpha or any of its subsidiaries) any inquiries, proposals, or offers that constitute, or may reasonably be expected to lead to, an acquisition proposal or engage in discussions or negotiations with respect thereto;
•
approve or recommend, or publicly propose to approve or recommend, an acquisition proposal or enter into any agreement relating to an acquisition proposal or enter into any agreement, arrangement or understanding requiring Alpha to abandon, terminate or fail to consummate the mergers or any other transaction contemplated by the merger agreement or breach its obligations thereunder;
•
withdraw, modify or qualify, or propose to publicly withdraw, modify, or qualify, in a manner adverse to Contura, the recommendation to stockholders of either Holdings or ANR by its board of directors to adopt the merger agreement, which action is referred to as a “change of board recommendation”; or
•
take any action to exempt any person (other than Contura and its affiliates) from the restrictions contained in any takeover law or otherwise cause such restrictions not to apply.

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Notwithstanding these restrictions, Alpha may, at any time prior to obtaining stockholder approval of the merger agreement at the Holdings and ANR special meetings, in response to an unsolicited bona fide written acquisition proposal that does not result from a breach of its non-solicitation obligations owed to Contura, which the boards of directors of Holdings and ANR determine in good faith (after consultation with outside counsel and financial advisors) constitutes or would reasonably be likely to lead to a superior proposal (as defined below):
•
(i) furnish non-public information with respect to Alpha and its subsidiaries and (ii) provide access to Alpha’s books, records, facilities, properties, personnel, officers, directors, employees and representatives to the person making the acquisition proposal (and its representatives) pursuant to a confidentiality agreement not less restrictive in any material respect on the person than the existing confidentiality agreement between Contura and Alpha, provided that all the information was previously provided or made available to Contura, or is provided or made available to Contura promptly; and
•
participate in discussions or negotiations with the person making the acquisition proposal (and its representatives) regarding the acquisition proposal.
Superior proposal means any bona fide inquiry, offer or proposal from any person (other than Contura or its affiliates) made in writing after the date of the merger agreement relating to a transaction or potential transaction (pursuant to a merger, consolidation, business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or other transaction) structured to permit such person to acquire beneficial ownership of:
•
at least 50% of the assets or businesses of either Holdings or ANR and their subsidiaries; or
•
at least 50% of the equity or any class of equity of either Holdings or ANR or any of their subsidiaries
that the boards of directors of Holdings and ANR have determined in good faith (after consulting with outside counsel and financial advisors), taking into account all terms and conditions of such inquiry, offer or proposal, including all legal, financial, regulatory, likelihood and timing of consummation and other aspects of such inquiry, offer or proposal as the boards of directors deem relevant, is more favorable from a financial point of view to the stockholders of Alpha than the mergers.
Alpha has agreed to promptly (but in any event within 24 hours) notify Contura in the event that it receives (including through any subsidiary or representative) any acquisition proposal, or any request for non-public information relating to it or its subsidiaries other than requests for information in its ordinary course of business or requests unrelated to an acquisition proposal, or any request for discussions or negotiations relating to a possible acquisition proposal. Alpha has also agreed to keep Contura reasonably informed in writing on a current basis of the status (including material terms and conditions and material modifications) of any such request, acquisition proposal or inquiry (including by providing notice of any material changes, developments or written communications within 24 hours).
Notwithstanding Alpha’s obligation not to cause a change of board recommendation, if prior to obtaining stockholder approval of the merger agreement, Alpha receives a written, bona fide acquisition proposal that does not result from a breach of its non-solicitation obligations owed to Contura, and Holdings’ and ANR’s boards of directors conclude in good faith (after consultation with outside counsel and financial advisors, after giving effect to all of the adjustments to the terms of the merger agreement proposed in writing by Contura in response to such acquisition proposal), that such acquisition proposal constitutes a superior proposal and the failure to take actions to effect a change of board recommendation would be reasonably likely to be inconsistent with their fiduciary duties under applicable law, then the Holdings board of directors and the ANR board of directors may at any time prior to obtaining the stockholder approval of the merger agreement, make a change of board recommendation, provided that Alpha fulfills the following conditions:
•
Alpha provides prior written notice, at least four business days in advance, advising Contura of its intention to take such action and specifying the material terms and conditions of the superior proposal (including the identity of the party making such a superior proposal);
•
at the request of Contura, during such four business day notice period, Alpha negotiates (and directs its financial and legal advisors to negotiate) with Contura in good faith to make any adjustments to the terms and conditions of the merger agreement proposed in writing by Contura; and

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•
following any such negotiation described in the immediately preceding bullet point, such acquisition proposal continues to constitute a superior proposal.
If there are any material revisions to the terms of a superior proposal after the start of the aforementioned four business day notice period, Alpha must deliver a new written notice to Contura and the notice period will be deemed to have re-commenced on the date of such new notice; provided that the additional notice period will expire at the later of (i) the end of the original four business day notice period and (ii) the end of the second business day following the date on which Alpha delivers such new notice.
In addition, notwithstanding Alpha’s obligation not to cause a change of board recommendation, if prior to obtaining stockholder approval of the merger agreement, Holdings’ and ANR’s boards of directors determine in good faith (after consultation with outside counsel) that (i) subject to certain exceptions set forth in the merger agreement, based on a material event or change in circumstances that was not known, or if known, the consequences of which were not known or reasonably foreseeable by Alpha as of the date of the merger agreement, the failure to make a change of board recommendation would reasonably be expected to be inconsistent with their fiduciary duties under applicable law and (ii) the reasons for making such change of board recommendation are independent of any pending acquisition proposal, then Alpha may make a change of board recommendation, provided that it fulfills the following conditions:
•
Alpha provides a prior written notice at least four business days in advance advising Contura of its intention to take such action and specifying the material facts and information constituting the basis for such contemplated determination; and
•
at the request of Contura, during such four business day notice period, Alpha negotiates (and directs its financial and legal advisors to negotiate) with Contura in good faith to make any adjustments to the terms and conditions of the merger agreement proposed in writing by Contura which would allow each of Holdings’ and ANR’s boards of directors not to make a change of board recommendation consistent with its fiduciary duties.
The merger agreement does not prohibit Alpha from taking and disclosing to its stockholders, in compliance with the rules and regulations of the Exchange Act, a position regarding any unsolicited tender offer for its common stock or from making any other disclosure to its stockholders if, in the good faith judgment of the boards of directors of Holdings and ANR, after consultation with outside counsel, failure to make such disclosure would be reasonably likely to be inconsistent with their fiduciary duties under applicable law or such disclosure is otherwise required by law.
Commercially Reasonable Efforts; Consents and Governmental Approvals
Contura and Alpha have each agreed to use commercially reasonable efforts, subject to specified limitations, to cooperate and to take, or cause to be taken, all actions necessary, proper or advisable to consummate and make effective the mergers and the other transactions contemplated by the merger agreement, in the most expeditious manner practicable. This includes obtaining all necessary consents, approvals or waivers from third parties and obtaining all necessary consents, approvals, permits and authorizations that are required to be obtained from governmental entities in connection with the transactions contemplated by the merger agreement.
Notwithstanding anything in the merger agreement to the contrary, except in the event of a Contura Sales Transaction, Contura is not required to agree to or make any concessions or undertakings (including agreements to divest or hold separate assets or limit lines of business) if such agreements, concessions or undertakings would constitute a Materially Burdensome Condition. Furthermore, Alpha may not, without the prior written consent of Contura, agree to or make any payments (other than customary filing fees) or any concessions or undertakings to make the mergers effective. However, if Contura or its subsidiaries enters into an agreement committing to a Contura Sale Transaction, then Contura and its subsidiaries are required to use their reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable, to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as reasonably practicable, including by (i) agreeing to and performing any Materially Burdensome Conditions that may be required to obtain the expiration or termination of the applicable waiting periods under the HSR Act and (ii) taking any and all reasonable actions to contest and defend any claim, cause of action, or proceeding instituted or threatened that challenges the mergers as violating any antitrust law and avoid the entry of or have vacated any decree, order, judgment, or injunction entered, enforced, or attempted to be entered or enforced, by any governmental entity that would prohibit, prevent or restrict the consummation of the mergers. However, with limited exceptions relating to the tax treatment of the mergers, nothing in the merger agreement

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prevents Contura or any of its subsidiaries from entering into an agreement to consummate a Contura Sales Transaction (subject to Alpha’s right in such case to terminate the merger agreement as discussed below).
In connection with the efforts referenced above to obtain all requisite approvals and authorizations for the transactions contemplated by the merger agreement under the HSR Act, and to obtain all such approvals and authorizations under any other applicable antitrust law, each of Contura and Alpha has further agreed to use its commercially reasonable efforts to:
•
cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party;
•
keep the other party reasonably informed in all material respects of any material communication received by such party from, or given by such party to, any governmental entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated in the merger agreement; and
•
permit the other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference with, any such governmental entity or in connection with any proceeding by a private party.
Neither party will, nor will it permit any of its subsidiaries to, acquire or agree to acquire any business, person or division thereof, or otherwise acquire or agree to acquire any assets or enter into any other transaction if the entering into of a definitive agreement relating to or the consummation of such acquisition or other transaction would be reasonably likely to materially delay the consummation of the transactions contemplated by the merger agreement or increase the risk of not obtaining any applicable clearance, approval or waiver from a governmental entity charged with the enforcement of any antitrust law with respect to the transactions contemplated by the merger agreement.
Indemnification and Insurance
For a period of at least six years following the closing of the mergers, Contura has agreed to maintain in effect provisions in the certificates of incorporation and bylaws of Holdings and ANR related to exculpation and indemnification of the (as of or prior to the closing) former directors, officers and employees of Alpha that are no less favorable than those which are currently provided in certificates of incorporation and bylaws of Holdings and ANR, which provisions may not be amended, repealed or otherwise modified during such six year period in any manner that would adversely affect the rights under such organizational documents of any such individuals until the expiration of the statutes of limitations applicable to such matters or unless such amendment, modification or repeal is required by applicable law.
Holdings and ANR will fully indemnify and hold harmless each (as of or prior to the closing of the mergers) officer and director of Alpha or of any of its subsidiaries, as applicable, from liabilities and expenses arising out of the fact that the such indemnified party is or was an officer, director, employee, fiduciary or agent of Alpha or any of its subsidiaries, or of another entity if such service was at the request of Alpha, to the fullest extent Holdings and ANR are permitted to do so under applicable law and its organizational documents as of the date of the merger agreement.
Alpha will purchase prior to the closing, and Contura will maintain in effect for at least six years after the effective time of the mergers, a fully pre-paid six-year tail policy to the current directors’ and officers’ liability insurance policies maintained on the date of the merger agreement by Alpha for an aggregate cost of no more than 300% of the total annual premiums currently paid by Alpha (exclusive of any premium refund on existing Alpha coverage) on the same terms with respect to such coverage and amount as those provided by Alpha’s existing insurance coverage. If the cost of the tail policy would exceed 300% of the total annual premiums currently paid by Alpha, Alpha will obtain a tail policy with the greatest coverage available for a cost not to exceed such amount.
Additional Agreements
The merger agreement contains additional agreements between Contura and Alpha relating to, among other things:
•
Commercially reasonable efforts by Alpha to assist Contura in connection with the arrangement of any refinancing or replacement of any existing, or the arrangement of any new, debt facility of Contura, Alpha or their subsidiaries,

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including up to $100 million of incremental financing, to be consummated prior to or contemporaneously with the closing in connection with the transactions contemplated by the merger agreement;
•
providing access to employees, offices and other facilities and to books, contracts, commitments and records during the period prior to closing;
•
granting all approvals and taking all other necessary steps to exclude the mergers or any other transaction contemplated by the merger agreement from the applicability of any takeover laws;
•
providing the other party with the opportunity to participate in the defense or settlement of any stockholder proceeding against either company or any of its directors or officers relating to the mergers or any other transactions contemplated by the merger agreement, provided that no settlement or compromise of such stockholder proceeding may be made without the other party’s prior written consent not to be unreasonably withheld;
•
expressly stating that each party has no control of the other party’s business;
•
preparation of this joint proxy statement and prospectus and of the registration statement on Form S-4, of which this joint proxy statement and prospectus forms a part;
•
notifying the other party of any breach of the merger agreement by the notifying party that would make the timely satisfaction of any of the conditions to complete the mergers impossible or unlikely; and
•
providing the other party a meaningful opportunity to review and comment upon any public release or employee communication concerning the transactions contemplated by the merger agreement and giving due consideration to all reasonable additions, deletions or changes suggested by the other party.
Tax Matters
Under the merger agreement, Contura and Alpha have agreed to:
•
jointly engage a “big four” accounting firm to deliver an opinion evaluating the “USRPHC” status for U.S. federal income tax purposes of each of ANR and Holdings;
•
cooperate prior to the closing of the mergers to obtain the tax forms described in “Material United States Federal Income Tax Consequences of the Mergers” from each Alpha stockholder; and
•
cooperate to address the impact of non-consolidation under Section 1504(a)(3) of the Code on the combined company, including by seeking a waiver from the IRS under relevant provisions of the Code and possibly effecting certain restructuring transactions following the mergers.
Employee Matters
Contura has agreed, for the period commencing at the effective time of the mergers and ending on December 31, 2019, to provide to each current ANR employee as of the effective time of the mergers (other than those individuals covered by a collective bargaining agreement) (“Current Employees”) compensation opportunities and employee benefits (but excluding equity compensation, change in control, transaction, deal or retention bonuses or payments, pension benefits or benefits provided pursuant to a collective bargaining agreement or defined benefit pension plan) that are substantially comparable, in the aggregate, to, in Contura’s sole discretion, either (i) those provided by ANR or its subsidiaries, as applicable, immediately prior to the effective time of the mergers or (ii) those provided by Contura to similarly situated Contura employees. Additionally, Contura will honor any obligations of ANR under (i) certain retention and employment agreements in existence on the date of the merger agreement to which any ANR employee is a party or (ii) the ANR Key Employee Separation Plan, as in effect on the date of the merger agreement.
Contura has agreed to cause service rendered by Current Employees prior to the effective time of the mergers to be given full credit under any compensation or benefit plan of Contura for purposes of eligibility, vesting and benefit accrual (except for benefit accrual under any defined benefit pension plan or post-employment or retiree welfare benefits) except where such credit would not be given under ANR plans or as would result in the duplication of benefits. Additionally, Contura has agreed

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to use commercially reasonable efforts to: (i) ensure that no Current Employee will be subject to any pre-existing condition limitation under any health plan of Contura for any condition for which he or she would have been entitled to coverage under the corresponding ANR benefit plan in which he or she participated prior to the effective time of the mergers and (ii) give effect, for the fiscal year in which the effective time of the mergers occurs, in determining any deductible, co-pays and maximum out-of-pocket limitations, claims incurred and amounts paid by, and amounts reimbursed to, the Current Employees prior to the effective time of the mergers.
Contura has agreed that it will, together with the first lump sum payment payable in respect of the separation from service of any “disqualified individual” (within the meaning of Section 280G of the Internal Revenue Code) eligible to receive benefits under the ANR Key Employee Separation Plan, make an additional cash payment to each such disqualified individual in respect of taxes due under Section 4999 of the Internal Revenue Code equal in amount to the lesser of (i) the amount set forth in the disclosure schedules to the merger agreement as to the three such disqualified individuals, which amount ranges from $611,292 to $818,245 (which will not exceed $2,500,000 in the aggregate) and (ii) the actual Section 4999 of the Internal Revenue Code excise tax gross-up amount owed to such disqualified individual. In addition, ANR has entered into reimbursement agreements with certain disqualified individuals pursuant to which such individuals will be reimbursed for certain excise taxes incurred under Section 4999 of the Internal Revenue Code (including any interest, penalties and/or additional tax incurred), or for any claims by the Internal Revenue Service with respect thereto. Except for costs and expenses not to exceed $100,000 in the aggregate for all such disqualified individuals, ANR will provide such reimbursements only to the extent that ANR is concurrently being reimbursed pursuant to an insurance policy providing related coverage.
Conditions to Completion of the Mergers
The obligations of each of Contura and Alpha to complete the mergers are subject to the satisfaction or waiver on or prior to the closing date of the mergers of the following conditions:
•
stockholder approval of the merger agreement at the Alpha special meetings;
•
the absence of any order, injunction, decree or other legal restraint issued by any governmental entity of competent jurisdiction, or other law, rule or legal restraint that is in effect and prevents the consummation of the mergers or other transactions contemplated by the merger agreement;
•
the absence of any proceeding by any governmental entity seeking to enjoin, restrain or otherwise prohibit any of the transactions contemplated by the merger agreement;
•
the expiration or early termination of the waiting periods applicable to the consummation of the mergers under the HSR Act without the imposition of a Materially Burdensome Condition (such early termination of the applicable waiting period under the HSR Act was received on July 2, 2018); and
•
the continued effectiveness of the registration statement on Form S-4 of which this joint proxy statement and prospectus forms a part and the absence of any stop order by the SEC, or proceedings of the SEC seeking a stop order suspending the effectiveness of such registration statement.
The obligation of Contura to effect the mergers is further subject to satisfaction or waiver by Contura of the following conditions:
•
the representations and warranties of Alpha set forth in the merger agreement regarding the following matters must be true and correct in all respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date):
◦
the absence of any assets, properties, employees, activities and liabilities of Holdings other than with respect to its ownership of shares of Class C-2 common stock;
◦
the corporate power and authority to enter into the merger agreement and the approval of the merger agreement and the recommendation to adopt the merger agreement by Alpha’s board of directors;

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◦
absence of conflicts with organizational documents, contracts and applicable law resulting from the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement;
◦
absence of required governmental consents in connection with the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement other than the governmental filings and consents specified in the merger agreement;
◦
the absence of a material adverse effect on Alpha since December 31, 2017;
◦
the affirmative vote required by Alpha stockholders to adopt the merger agreement;
◦
inapplicability of takeover laws;
◦
the receipt of an opinion from Alpha’s financial advisors; and
◦
no brokers’ or finders’ fees;
•
the representations and warranties of Alpha set forth in the merger agreement relating to the capital structure of Alpha must be true and correct in all but de minimis respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date);
•
all other representations and warranties of Alpha set forth in the merger agreement must be true and correct (without giving effect to any materiality or material adverse effect qualifications contained in them) both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date), except where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Alpha;
•
Alpha must have performed in all material respects all obligations required to be performed by it under the merger agreement at or prior to the closing of the mergers;
•
Alpha must have furnished Contura with a certificate signed on its behalf by its chief executive officer or chief financial officer certifying as to the matters set forth above in the four immediately preceding bullets;
•
The number of shares of Holdings common stock and Class C-1 common stock with respect to which appraisal rights have been demanded must not equal more than 10% of the total number of outstanding shares of Holdings common stock and Class C-1 common stock (disregarding for such purposes any shares held by Alpha stockholders who also hold more than 1% of the outstanding shares of Contura common stock at the time of the Alpha special meetings) (this condition is referred to herein as the “appraisal rights condition”); and
•
Alpha must have obtained certain third party consents required under the merger agreement in form and substance reasonably satisfactory to Contura.
The obligation of Alpha to effect the mergers is further subject to satisfaction or waiver by Alpha of the following conditions:
•
the representations and warranties of Contura set forth in the merger agreement regarding the following matters must be true and correct in all respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date):
◦
the corporate power and authority to enter into the merger agreement and the approval of the merger agreement by Contura’s board of directors;

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◦
absence of conflicts with organizational documents, contracts and applicable law resulting from the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement;
◦
absence of required governmental consents in connection with the execution and delivery of the merger agreement and consummation of the transactions contemplated by the merger agreement other than the governmental filings and consents specified in the merger agreement;
◦
the absence of a material adverse effect on Contura since December 31, 2017;
◦
the affirmative vote required by Contura’s stockholders to approve the Contura charter amendment (which approval by the Contura stockholders has already been obtained);
◦
the receipt of an opinion from Contura’s financial advisor; and
◦
no brokers’ or finders’ fees;
•
the representations and warranties of Contura set forth in the merger agreement relating to the capital structure of Contura must be true and correct in all but de minimis respects both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date);
•
all other representations and warranties of Contura set forth in the merger agreement must be true and correct (without giving effect to any materiality or material adverse effect qualifications contained in them) both as of the date of the merger agreement and as of the closing date of the mergers, as if made at and as of the closing date of the mergers, except to the extent any such representation and warranty was expressly made as of an earlier date (in which case such representation or warranty must have been so true as of such earlier date), except where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Contura;
•
Contura must have performed in all material respects all obligations required to be performed by it under the merger agreement at or prior to the closing of the mergers;
•
Contura must have furnished Alpha with a certificate signed on its behalf by its chief executive officer or chief financial officer certifying as to the matters set forth above in the four immediately preceding bullets;
•
The shares of Contura common stock to be issued upon the consummation of the mergers must have been authorized for listing on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market, subject to official notice of issuance; and
•
Contura must have obtained stockholder approval of the Contura charter amendment (which approval by the Contura stockholders has already been obtained) and must have filed the Contura charter amendment with the Secretary of State of the State of Delaware and the Contura charter amendment must be effective.
Termination of the Merger Agreement
At any time before the effective time of the mergers, whether or not the Alpha stockholders have adopted the merger agreement, the merger agreement may be terminated:
•
by mutual written consent of Contura and Alpha;
•
by either Alpha or Contura if:
◦
any court of competent jurisdiction or other governmental entity has issued an order, decree or ruling enjoining or otherwise prohibiting any of the transactions contemplated by the merger agreement, and such order, decree or ruling has become final and non-appealable, except under limited circumstances;

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◦
the parties fail to consummate the mergers on or before the outside date of December 29, 2018, unless the failure to perform or comply in all material respects with the covenants in the merger agreement by the party seeking the termination was the primary cause of the failure to consummate the mergers by the outside date; or
◦
the Alpha special meetings have been convened, the Alpha stockholders have voted, and the adoption of the merger agreement by the Alpha stockholders was not obtained, provided that Alpha may not terminate the agreement under such circumstances if Alpha has breached its obligations relating to obtaining stockholder approval at such meetings; or
•
by Alpha:
◦
if Contura breaches its representations, warranties or covenants set forth in the merger agreement, which breach would result in a failure of certain of the conditions to the completion of the merger being satisfied and such breach is not cured by the earlier of the outside date or 30 days after the receipt of written notice thereof or is incapable of being cured within such period, except under limited circumstances;
◦
prior to the 25 th business day after the date of the merger agreement, if the Contura charter amendment has not been approved by either (i) the beneficial owners of a majority of the outstanding shares of Contura common stock within three business days of the date of the merger agreement or (ii) the record holders of a majority of the outstanding shares of Contura common stock within 20 business days of the date of the merger agreement (the approvals under each of clause (i) and (ii) by the applicable Contura Holders have already been obtained);
◦
if Contura has entered into a binding agreement to consummate, or consummates, a Contura Sale Transaction; or
◦
if following the Alpha special meetings, the appraisal rights condition has not been satisfied and Contura has not waived such condition within five business days of a written request from Alpha; or
•
by Contura:
◦
if Alpha breaches its representations, warranties or covenants set forth in the merger agreement, which breach would result in a failure of certain of the conditions to the completion of the mergers being satisfied and such breach is not cured by the earlier of the outside date or 30 days after the receipt of written notice thereof by ANR or is incapable of being cured within such period, except under limited circumstances; or
◦
prior to Alpha obtaining stockholder approval of the merger agreement at the Alpha special meetings, if (i) a change of board recommendation has occurred, (ii) the boards of directors of Holdings or ANR have failed to recommend against any publicly announced acquisition proposal and reaffirm its recommendation of the mergers within 10 business days following the public announcement of such acquisition proposal and in any event at least four business days prior to the Alpha special meetings (iii) Alpha has failed to include the recommendation of the mergers by the board of directors of Holdings and ANR in this joint proxy statement and prospectus or (iv) Alpha has materially breached its non-solicitation obligations or obligations to recommend that Alpha stockholders vote in favor of the adoption of the merger agreement.
Termination Fees
Alpha is required to pay Contura a termination fee of $19 million if:
•
Contura terminates the merger agreement because:
◦
there has been a material breach of the Alpha’s non-solicitation obligations; or
◦
the board of directors of Holdings or ANR changes its recommendation that the Alpha stockholders vote in favor of the mergers; or

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•
Contura or Alpha terminates the merger agreement because the Alpha stockholders do not approve the mergers at the Alpha special meetings and Contura would have been able to terminate the merger agreement in connection with the matters described in the proceeding bullet; or
•
(i) an acquisition proposal is made (and not withdrawn), (ii) thereafter (a) Contura or Alpha terminates the merger agreement because (x) approval of the mergers is not obtained at the Alpha special meetings or (y) the transactions contemplated by the merger agreement have not been consummated by the outside date or (b) Contura terminates the merger agreement because the representations, warranties or covenants of Alpha are breached such that there is a failure of the related closing condition and (iii) within 12 months after the date of the termination, Alpha enters into a definitive agreement to consummate an acquisition proposal or consummates any acquisition proposal, in each case, meeting certain requirements set forth in the merger agreement.
Alpha is also required to reimburse Contura for Contura’s fees and expenses incurred in connection with the transactions contemplated by the merger agreement if the merger agreement is terminated because Alpha’s stockholders fail to approve the merger agreement at the Alpha special meetings. This reimbursement is limited to $9 million and will be credited against the aforementioned $19 million termination fee in the event such termination fee becomes payable by Alpha.
Contura is required to pay Alpha a termination fee of $19 million if (i) the merger agreement is terminated because an order, decree or ruling issued under antitrust law prohibits the consummation of the transactions contemplated by the merger agreement or (ii) the merger agreement is terminated because the mergers have not closed by the outside date and all closing conditions are satisfied except for closing conditions relating to matters arising under antitrust laws.
In general, each of Alpha and Contura will bear its own expenses in connection with the merger agreement and the related transactions.
Amendments, Extensions and Waivers
Amendments
The merger agreement may be amended at any time before or after the adoption of the merger agreement at the Alpha special meetings by an instrument in writing signed on behalf of each of the parties to the merger agreement. However, after the adoption of the merger agreement at the Alpha special meetings, without the approval of the Alpha stockholders, the merger agreement may not be amended in any manner which would modify the merger consideration or which would require the approval of the Alpha stockholders under Delaware law.
Extensions and Waivers
Prior to the closing of the mergers, each party may, to the extent permitted by applicable law:
•
extend the time for the performance of any of the obligations or other acts of the other parties;
•
waive any inaccuracies in the representations and warranties of the other party contained in the merger agreement or in any document, certificate or writing delivered pursuant to the merger agreement; or
•
waive compliance by the other party with any of the agreements or conditions contained in the merger agreement.
Any agreement on the part of either party to any extension or waiver will be valid only if set forth in an instrument in writing signed on behalf of such party against which such waiver or extension is to be enforced. The failure of any party to the merger agreement to assert any of its rights under the merger agreement or otherwise will not constitute a waiver of those rights.

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THE COAL INDUSTRY
Coal is an abundant, reliable and inexpensive natural resource, making it a leading source for the world’s energy consumption and steel production needs. According to the BP Statistical Review, total global proven coal reserves were 1,035 billion tons at the end of 2017, and coal provided 28% of the world’s primary energy consumption. Coal is generally categorized into metallurgical coal (met coal) and steam coal. Met coal is used to create coke for use in the steel-making process. Steam coal is primarily used by utilities and power producers to generate electricity.
Metallurgical Coal Industry Overview
Met coal is a critical input in the integrated steel making process. The coal is converted into coke, which is used as a fuel and reducing agent in blast furnaces to convert iron ore into liquid iron and afterwards into steel. High quality met coal is a scarce commodity, with large scale reserves found primarily in the eastern U.S., western Canada, eastern Australia, Russia and China. Met coal is consumed domestically and sold into the seaborne market.
Met coal is characterized and sold in the Pacific Basin as hard coking coal (“HCC”), semi-soft coking coal (“SSCC”) and pulverized coal injection (“PCI”), with HCC typically being the most valuable. In the Atlantic Basin, met coal is sold according to its volatile matter (“Vol.”) specification as Low-Vol., Mid-Vol., High-Vol. A and High-Vol. B. High quality Mid-Vol and High-Vol A coals are typically the most valuable coals in coking coal blends. Steel producers procure a mix of coals based on the quality requirements of each blast furnace.
Historically, the majority of met coal sold in the seaborne market was priced based on a quarterly benchmark set between Australian suppliers and major Japanese steel producers. The quarterly benchmark has been largely replaced by the use of published indices for met coal. Typically, an index, with a reference period, is agreed to between the buyer and seller with adjustments for coal quality and transportation costs. Similar to the coal market, these indices can experience some volatility during market transitions.
The chart below shows the 5-year historical coal pricing for met coal.
COALINDUSTRY1.JPG

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This chart below shows the relevant met coal quality specifications for our respective markets.
 
Hard Coking Coal (Premium Low-Vol.) FOB Australia (1)
 
Platts Low-Vol. Hard Coking Coal FOB United States East Coast  (2)
 
Platts High-Vol. A Hard Coking Coal FOB United States East Coast (3)
 
Platts High-Vol. B Hard Coking Coal FOB United States East Coast (4)
Moisture
9.7%
 
8.0%
 
8.0%
 
8.0%
Ash
9.3%
 
8.0%
 
7.0%
 
8.0%
Sulfur
0.5%
 
0.8%
 
0.85%
 
0.95%
Volatile Matter
21.5%
 
19.0%
 
32.0%
 
34.0%
CSR
71.0%
 
58.0%
 
—
 
—
DDPM (fluidity)
500
 
—
 
30,000
 
25,000
Phosphorus
0.045%
 
—
 
—
 
—
Vitrinite
65.0%
 
—
 
—
 
—
______________
(1)
Published Daily by Platts. Based on worldwide spot sales. Price adjusted to FOB Haypoint, Australia using vessel market data when delivered priced are used in the calculations.
(2)
Published Daily by Platts. Based on worldwide spot sales. Price adjusted to FOB Hampton Roads, USA using vessel market data when delivered prices are used in the calculations.
(3)
Published Daily by Platts. Based on worldwide spot sales. Price adjusted to FOB Hampton Roads, USA using vessel market data when delivered prices are used in the calculations.
(4)
Published Daily by Platts. Based on worldwide spot sales. Price adjusted to FOB Hampton Roads, USA using vessel market data when delivered prices are used in the calculations.

Steam Coal Industry Overview
Steam coal is an abundant resource that is crucial to global electricity needs. Steam coal producers compete primarily with natural gas and increasingly with renewable forms of energy around the world. In 2016, steam coal accounted for approximately 28% of the world’s energy consumption, according to the BP Statistical Review. Despite increasing competition from other forms of energy, steam coal is expected to continue playing a significant role in satisfying growing global energy needs, primarily in base load power generation. At current production rates, proven coal reserves are expected to last for over 130 years, according to the BP Statistical Review, which is by far the largest reserve life of any fossil fuel.
The largest consumers of coal in the U.S. are utilities. While much of the coal produced in the U.S. is consumed domestically, multiple ports in the U.S. provide coal producers with access to the export markets.
The largest steam coal producers globally are China, India, Indonesia, Australia and the U.S. As in the U.S., the majority of Chinese steam coal production is consumed domestically. Conversely, Indonesia and Australia are net exporters. U.S. steam coal consumption has decreased in recent years primarily due to low natural gas prices and environmental regulations. Natural gas price volatility is one of the leading drivers of domestic steam coal demand. Going forward, natural gas prices are expected to rise to more normalized levels due to the decrease in natural gas storage levels and slow recovery from previous production curtailments. In addition to the strengthening pricing of natural gas, the regulatory environment is improving as regulations are in the process of being revised or already rescinded by the current administration. Certain regulations have been already targeted by the current administration, such as the Clean Power Plan (“CPP”) and Mercury and Air Toxics Standards (“MATS”), which are currently under review, and the moratorium on granting additional coal federal land leases and the Stream Protection Rule, which has been eliminated, although this elimination is subject to legal challenges.
Historically, the majority of domestic steam coal has been priced on an annual basis as part of long-term contracts ranging from one to five years. Typically, the contract price is negotiated based on current and expected market demand, as well as domestic spot prices, particularly Over-the-Counter (“OTC”) indices. The commonly referenced OTC index for NAPP spot pricing is based on Pittsburgh Seam coal with heat content of 13,000 BTU and sulfur content of less than 3.0%. In the fourth quarter of 2017, through June 30, 2018 this index value has averaged $46.10 per net ton, ranging from $40.75 to $48.75 with a standard deviation of $1.85. The value as of June 30, 2018 was $47.75.

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The commonly referenced indices for the CAPP steam coal market, based upon OTC specifications, are: (i) the CSX Kanawha District with heat content of 12,500 BTU and SO2 content of 1.6 lb.; (ii) the NS Thacker Kenova with heat content of 12,500 BTU and SO2 content of 1.6 lb.; and (iii) the NYMEX Big Sandy/Kanawha with heat content of 12,000 BTU and SO2 content of 1.7 lb. Alpha’s steam coal quality specifications generally vary from the OTC specifications, and price is adjusted for specific quality variations and transportation differentials. Alpha’s steam coal quality specifications generally vary from the OTC specifications, and specific prices are not necessarily tied to the indices. The indices are used more for directional purposes.
The chart below shows the 5-year historical coal pricing for steam coal.

COALINDUSTRYB2.JPG

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This chart below shows the relevant steam coal quality specifications for our respective markets.
 
CAPP - CSX 12,500 BTU 1.0% Sulfur (1)
 
CAPP - NS 12,500 BTU 1.0% Sulfur (2)
 
NAPP - Mon River 13,000 BTU 4.8% Sulfur   (3)
Moisture
8.0%
 
8.0%
 
8.0%
Ash
13.5%
 
13.5%
 
8.0%
Sulfur
1.0%
 
1.0%
 
4.8%
BTUs
12,500
 
12,500
 
13,000
Volatile Matter
30.0%
 
30.0%
 
33.0%
HGI
43.0
 
43.0
 
50.0
______________
(1)
Published Daily by Coal Desk. Based on US OTC Trades. Rail Deliveries from the Big Sandy or Kanawha Districts on the CSX Railroad.
(2)
Published Daily by Coal Desk. Based on US OTC Trades. Rail Deliveries from the Kenova or Thacker I Districts on the Norfolk Southern Railroad.
(3)
Published Daily by Coal Desk. Based on US OTC Trades. Barge Deliveries from mile post 80 on the Monongahela River.

165


BUSINESS
Unless otherwise indicated or the context otherwise requires, references in this “Business” section to “the combined company,” “we,” “us” and other similar terms refer to Contura Energy, Inc. and its consolidated subsidiaries after giving effect to the mergers.
Our Company
Contura and Alpha are large scale, diversified providers of met and steam coal to a global customer base. Upon consummation of the mergers, the combined company will operate high-quality, cost-competitive coal mines across coal basins in Virginia, West Virginia and Pennsylvania, complemented by a Trading and Logistics business. The combined company’s portfolio of mining operations will consist of eight mining complexes, comprised of twenty-one underground mines, nine surface mines and thirteen coal preparation plants. Contura currently operates four mining complexes located in Virginia, West Virginia and Pennsylvania, comprised of seven underground mines, two surface mines and four coal preparation plants. Alpha currently operates four mining complexes located in West Virginia, comprised of fourteen underground mines, seven surface mines and nine coal preparation plants. To supplement mining operations, the combined company will operate a Trading and Logistics business, currently operated by Contura, that focuses on the sale of third-party coal into the international market. Contura owns a 65.0% interest in the DTA, a coal export terminal in eastern Virginia. DTA will provide the combined company with the ability to fulfill a broad range of customer coal quality requirements through coal blending, while also providing storage capacity and transportation flexibility.
Contura and Alpha produce a diverse mix of coal products, which enables them to satisfy a broad range of customer needs across all their operations. In the CAPP coal basin, Contura and Alpha predominantly produce low-ash and low-sulfur met coal, including High-Vol. A, High-Vol. B, Mid-Vol., Low-Vol. steam coal and specialty coals, which are shipped to domestic and international steel producers. In the NAPP coal basin, Contura produces primarily high-BTU steam coal. This steam coal has metallurgical properties but it is higher in sulfur content than typical products sold in the metallurgical coal market. Limited volumes can be placed in the metallurgical coal market where customers have the flexibility to accommodate quantities of higher sulfur coal in their coking coal blends. Contura’s and Alpha’s steam coal is primarily sold to the domestic power generation industry.
Contura has a substantial reserve base of over 491 million tons of proven reserves and approximately 251 million tons of probable reserves, which we believe could support current production levels for more than 35 years based on Contura’s 2017 production levels. Contura’s reserve base in CAPP consists of over 71 million tons of proven and approximately 24 million tons of probable reserves across the three mining complexes, of which substantially all is met coal. Contura’s reserve base in NAPP consists of approximately 420 million tons of proven and over 227 million tons of probable reserves, of which approximately 7% is met coal, with substantially all of the remaining reserves principally characterized as high-BTU, Pittsburgh 8 seam steam coal.
Alpha has a substantial reserve base in CAPP that consists of approximately 405 million tons of proven reserves and approximately 206 million tons of probable reserves across four mining complexes, of which approximately 531 million tons is met coal (approximately 87% of total reserves) and 80 million tons is steam coal (approximately 13% of total reserves).  We believe the reserve base could support current met and steam production levels for approximately 77 and 13 years, respectively, based on Alpha's 2017 production levels. Alpha’s steam reserves are principally characterized as high-BTU CAPP steam coal.
Through Contura’s operations and reserves in two major U.S. coal producing basins, it is able to source coal from multiple mines to meet the needs of a long-standing global customer base, many of which have been served by Contura or its predecessors for over a decade. Contura is continuously evaluating opportunities to strategically cultivate current relationships to drive new business in Contura’s target growth markets that include India, Turkey and Brazil. In addition, Contura’s experienced management team continues to analyze acquisitions, joint ventures and other opportunities that would be accretive and synergistic to its existing asset portfolio.

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Contura and Alpha have also identified organic met coal growth opportunities that can be developed in supportive pricing environments. Opportunities identified by Contura include:
•
Deep Mine #42 in CAPP, which could provide an incremental 1.0-1.5 million tons per year of High-Vol. A and Mid-Vol. met coal; and
•
Freeport mine in NAPP, which could provide an incremental 2.5-3.5 million tons per year of primarily High-Vol. B met coal, with some steam coal as byproduct.
Opportunities identified by Alpha include:
•
Black Eagle in CAPP, which could provide an incremental 0.3-0.5 million tons per year of High-Vol. A met coal;
•
Panther Eagle in CAPP, which could provide an incremental 0.3-0.5 million tons per year of High-Vol. A met coal; and
•
Road Fork 52 in CAPP, which could provide an incremental 0.6-0.8 million tons per year of High-Vol. A met coal.
Production at these adjacent mines provides embedded growth potential while leveraging existing infrastructure. In addition, Contura’s operational footprint in multiple U.S. coal basins provides significant opportunities for potential synergies from domestic acquisitions.
Alpha’s operations and reserves enable it to source coal from multiple mines to meet the needs of its customer base, which include several large utility and industrial customers throughout the United States, as well as steel companies in the Northeastern and Midwestern regions of the United States and in several countries in Europe, Asia and South America. Many of Alpha’s customers have been served by Alpha or its predecessors for over two decades. Alpha regularly evaluates opportunities to strategically expand its business with existing customers, as well as pursuing relationships with new customers.
Alpha Restructuring
On August 3, 2015, Predecessor Alpha and each of its wholly-owned domestic subsidiaries other than ANR Second Receivables Funding LLC (collectively, the “Alpha Debtors”) filed voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Court”). The Bankruptcy Court approved the Alpha Debtors’ Plan of Reorganization on July 7, 2016. On July 26, 2016, a consortium of former creditors of the Alpha Debtors acquired Contura common stock in exchange for a partial release of their creditor claims pursuant to the Alpha Debtors’ bankruptcy settlement. The Alpha Debtors, collectively, were a coal producer with operations in Central Appalachia, Northern Appalachia, and the Powder River Basin.
Contura entered into various settlement agreements with the Alpha Debtors, their bankruptcy successor, and third parties as part of the Alpha Debtors’ bankruptcy reorganization process. Contura assumed acquisition-related obligations through those settlement agreements, which became effective on July 26, 2016, the effective date of the Alpha Debtors’ Plan of Reorganization. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Contura—Liquidity and Capital Resources—Acquisition-Related Obligations.”
Contura began operations on July 26, 2016, with mining complexes in Northern Appalachia, the Powder River Basin and Central Appalachia. Contura also acquired the Alpha Debtors’ 40.6% interest in the DTA, and, on March 31, 2017, Contura acquired a portion of another partner’s ownership stake and increased its interest to 65.0%. Through the asset purchase from the Alpha Debtors, Contura acquired a significant reserve base. On December 11, 2017, Contura sold its mines located in the PRB, along with related coal reserves, equipment, infrastructure and other real properties.
ANR and Holdings were each incorporated in Delaware on June 13, 2016 in accordance with the Plan of Reorganization. On July 26, 2016, the effective date of the Plan of Reorganization, the Alpha Debtors emerged from bankruptcy, and ANR (in which Holdings held an equity investment) became the parent entity under the Plan of Reorganization. On October 23, 2017, Alpha transferred certain idle real properties and related assets located in Kentucky, Tennessee and West Virginia to Lexington Coal Company, LLC, pursuant to the terms of a Membership Interest and Asset Purchase Agreement.

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Contura’s Operations and Properties
The following table presents a summary of Contura’s mining complexes:
Complex
 
Location
 
Type
 
Coal Qualities
 
Logistics
Nicholas
 
CAPP (WV)
 
Underground
 
Met High-Vol. B and specialty
 
Norfolk Southern
Toms Creek
 
CAPP (VA)
 
Underground / Surface
 
Met High-Vol. A and B
 
Norfolk Southern
McClure
 
CAPP (VA)
 
Underground
 
Met Mid-Vol. and High-Vol. A
 
CSX
Cumberland
 
NAPP (PA)
 
Underground
 
Steam / Met High-Vol. B
 
CSX, Norfolk Southern, Monongahela River
Contura considers Deep Mine 41 in CAPP and Cumberland Mine in NAPP to be individually material mines.
CAPP
Contura’s CAPP operations consist of three high-quality met coal mining complexes: Toms Creek, McClure and Nicholas. For the fiscal year ended December 31, 2017, Contura’s CAPP met coal quality was composed of 42.8% Mid-Vol., 44.0% High-Vol. A and 13.1% High-Vol. B. During this time period, Contura shipped 2.9 million tons of its met coal production from its CAPP operations internationally to customers in Europe, Asia and the Americas, with the remaining met coal production sold into the domestic market. In the six months ended June 30, 2018, Contura’s CAPP met coal quality was composed of 45.0% Mid-Vol., 37.9% High-Vol. A and 17.1% High-Vol. B. During this period, Contura shipped 1.9 million tons of its met coal production from its CAPP operations internationally to customers in Europe, Asia and the Americas, with the remaining met coal production sold into the domestic market.
Central Appalachia (CAPP)
BUSINESSIMAGE1.JPG

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Deep Mine 41, associated with the McClure Plant, is located in Dickenson County, Virginia on property subject to a lease dated April 1, 2003. Contura can automatically extend the lease until March 31, 2063. The McClure Plant is a 1000 ton per hour plant that is located on owned property in Dickenson County, Virginia. It was built in 1979 and upgraded in 1998.
NAPP
Contura’s NAPP operations consist of the large-scale, high-margin and high-quality Cumberland coal mining complex. Cumberland is located in Greene County, Pennsylvania and operates one highly efficient longwall mine supported by four continuous miner sections for longwall panel development. Contura’s NAPP operations also include the idled Emerald mine complex, which is currently being used as an underground water treatment and holding facility, allowing Cumberland to realize significant cost savings on water management expenditures. Contura is also able to sell part of its Cumberland coal production (0.2 million tons in 2017 and 0.3 million tons in the six months ended June 30, 2018) into the met coal market as High-Vol. B, achieving higher realized pricing than if sold as steam coal. The coal produced by the Cumberland mine is from the Pittsburgh 8 seam, which is recognized for its high-BTU, low chlorine content and desirable ash fusion properties. This makes Cumberland coal ideal for boilers and, accordingly, most of the domestic customer base for this mine consists of base load, scrubbed coal-fired power plants. Additionally, NAPP offers transportation optionality through rail and barge, allowing Contura to reach a broader customer base. Contura enters into long-term supply agreements, typically ranging from one to five years, to contract its steam coal production in advance, thereby reducing the risks associated with its steam coal portfolio in future years.
The Cumberland Mine is on property owned by Contura’s subsidiaries, as well as on property subject to a lease dated December 4, 1980 (the “Greene Manor Lease”). Contura can extend the Greene Manor Lease for successive ten-year periods. The Cumberland Plant (associated with Cumberland Mine) is a 1600 ton per hour plant located on owned property in Greene County, Pennsylvania. It was built in 1978 and upgraded in 1996.
Northern Appalachia (NAPP)
NORTHERNAPPALACHIA.JPG
PRB
Contura’s PRB operations formerly consisted of the Belle Ayr and Eagle Butte mines, located in Wyoming. On December 11, 2017, Contura sold these, along with related coal reserves, equipment, infrastructure and other real properties.
On October 23, 2017, ANR closed the sale of substantially all idle assets in Kentucky, Tennessee, and West Virginia to LCC. The conveyance included real property, substantial reclamation equipment and the transfer of ongoing royalty payment obligations associated with the properties. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations of ANR.”

169


Trading and Logistics
Contura’s Trading and Logistics business purchases met coal from domestic producers and sells into international markets. Such purchases are predominantly made pursuant to long-term agreements, but Contura also purchases coal on the spot market when it is advantageous to its business. A strategic cornerstone of Contura’s Trading and Logistics business is its interest in the DTA coal export terminal. In March 2017, Contura increased its stake in the DTA coal export terminal from 40.6% to 65.0%, which provides Contura with 14 million tons of export capacity. Purchasing coal produced by various CAPP operators allows it to leverage Contura’s export capacity at DTA. Contura’s Trading and Logistics platform complements its met coal operations by blending captive and third-party coal at DTA to achieve a broader portfolio of coal qualities. Contura typically builds in margin for transportation fees, overhead, risk and profit when purchasing third-party coal. Additionally, Contura sells capacity to third-party operators via throughput contracts. The Trading and Logistics business provides Contura a larger presence in international markets and further diversifies and expands Contura’s revenue sources.
For the year ended December 31, 2017, Alpha sold 3.8 million tons to Contura for export at DTA. For the six months ended June 30, 2018, Alpha sold 2.2 million tons to Contura for export at DTA. After the consummation of the mergers, Contura’s and Alpha’s export metallurgical products will continue to be marketed jointly but Alpha’s production will no longer be considered part of the Trading and Logistics business.
Alpha’s Operations and Properties
The following table presents a summary of Alpha’s mining complexes:
Complex
 
Location
 
Type
 
Coal Qualities
 
Logistics
Brooks Run West
 
CAPP (WV)
 
Underground / Surface
 
Met High-Vol. and Steam
 
CSX, Norfolk Southern, Kanawha River Barge
Brooks Run South
 
CAPP (WV)
 
Underground
 
Mid-Vol. and Low-Vol.
 
CSX, Norfolk Southern, Kanawha River Barge
Coal River East
 
CAPP (WV)
 
Underground
 
Met High-Vol. and Steam
 
CSX, Norfolk Southern, Kanawha River Barge
Mid WV Surface
 
CAPP (WV)
 
Surface
 
Met High-Vol. and Steam
 
CSX, Norfolk Southern, Kanawha River Barge
Alpha’s operations consist of four high-quality met and steam coal mining complexes in CAPP: Brooks Run West, Brooks Run South, Coal River East and Mid WV Surface. For the fiscal year ended December 31, 2017, Alpha’s met coal quality was composed of 14% Low-Vol., 11% Mid-Vol., 49% High-Vol. A and 26% High-Vol. B. During this time period, 36% of Alpha’s met coal production from its operations was shipped to customers that utilized the coal in the domestic market. In the six months ended June 30, 2018, Alpha’s met coal quality was composed of 11.2% Low-Vol., 10.3% Mid-Vol., 52.1% High-Vol. A and 26.4% High-Vol. B. During this time period, 35% of Alpha’s met coal production from its operations was shipped to customers that utilized the coal in the domestic market.

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Central Appalachia (CAPP)
BUSINESSIMAGE2.JPG
Coal Reserves
Contura and Alpha each prepared its respective estimates of reserves which were audited by Marshall Miller & Associates, Inc. (“MM&A”), and MM&A reviewed its methodology, assumptions and reserve factors utilized in calculations. In the few instances where MM&A recommended revisions to reserve figures, MM&A worked with Contura’s or Alpha’s team, as applicable, to modify reserve estimates. MM&A relied on their independent pro-forma economic analysis for ultimate reserve determination; this analysis is further discussed in the Costs & Calculations section on page 177.
Contura and Alpha each maintain an internal staff of engineers and geoscience professionals who work closely with their respective independent reserve engineers to ensure the integrity, accuracy and timeliness of the data used to calculate their respective estimated reserves. Contura’s and Alpha’s internal technical team members meet with their respective internal independent reserve engineers periodically to discuss the assumptions and methods used in the proved reserve estimation process. Contura and Alpha each provide historical information to the independent reserve engineers for their properties, such as ownership interest, production, test data, commodity prices and operating and development costs.
These estimates are based on engineering, economic and geologic data, coal ownership information and current and proposed mine plans. Contura’s and Alpha’s proven and probable coal reserves are reported as “recoverable coal reserves,” which is the portion of the coal that could be economically and legally extracted or produced at the time of the reserve determination, taking into account mining recovery and preparation plant yield. These estimates are periodically updated to reflect past coal production, new drilling information and other geologic or mining data. Acquisitions or dispositions of coal properties will also change these estimates. Changes in mining methods may increase or decrease the recovery basis for a coal seam, as will changes in preparation plant processes.
“Reserves” are defined by the SEC Industry Guide 7 as that part of a mineral deposit which could be economically and legally extracted or produced at the time of the reserve determination. Industry Guide 7 divides reserves between “proven (measured) reserves” and “probable (indicated) reserves,” which are defined as follows:
•
“Proven (Measured) Reserves.” Reserves for which (a) quantity is computed from dimensions revealed in outcrops, trenches, workings or drill holes; grade and/or quality are computed from the results of detailed sampling and (b) the sites for inspection, sampling and measurement are spaced so closely and the geologic character is so well defined that size, shape, depth and mineral content of reserves are well-established.
•
“Probable (Indicated) Reserves.” Reserves for which quantity and grade and/or quality are computed from information similar to that used for proven (measured) reserves, but the sites for inspection, sampling and measurement are farther apart or are otherwise less adequately spaced. The degree of assurance, although lower than that for proven (measured) reserves, is high enough to assume continuity between points of observation.
As of December 31, 2017, the combined company had estimated reserves totaling approximately 1,354 million tons, of which approximately 572 million tons, or 42%, were “assigned” recoverable reserves that were either being mined, were

171


controlled and accessible from a then active mine, or located at idled facilities where limited capital expenditures would be required to initiate operations when conditions warrant. The remaining approximately 782 million tons were classified as “unassigned,” representing coal at currently non-producing locations that Contura anticipates mining in the future, but which would require significant additional development capital before operations could begin.
Contura’s and Alpha’s reserve estimates are predicated on engineering, economic, and geological data assembled and analyzed by internal engineers, geologists and finance associates, as well as third-party consultants. Contura and Alpha each update their respective reserve estimates annually to reflect past coal production, new drilling information and other geological or mining data, and acquisitions or sales of coal properties.
The following table provides the location and coal reserves associated with each of Contura’s mines or potential mines as of December 31, 2017:
As of December 31, 2017
(in thousands of short tons) (1)  
 
 
 
 
 
 
 
 
Recoverable Reserves
 
Reserve Control
Location/Mine
 
Status of Operation (2)
 
Coal Bed
 
Assigned/ Unassigned (3)
 
Reserves
 
Proven
 
Probable
 
Owned
 
Leased
CAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nicholas
 
Active
 
Various
 
15,509 / 902
 
16,411

 
9,905

 
6,506

 
4,003

 
12,408

Toms Creek
 
Active
 
Various
 
8,238 / 23,613
 
31,851

 
25,502

 
6,349

 
—

 
31,851

McClure (4)
 
Active
 
Various
 
43,724 / 3,349
 
47,073

 
35,985

 
11,088

 
—

 
47,073

 
 
 
 
 
 
67,471 / 27,864
 
95,335

 
71,392

 
23,943

 
4,003

 
91,332

NAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cumberland
 
Active
 
Pittsburgh 8
 
31,380 / 0
 
31,380

 
31,380

 
—

 
22,970

 
8,410

Greene Manor
 
Reserve
 
Pittsburgh 8
 
90,936 / 138,146
 
229,082

 
146,543

 
82,539

 
—

 
229,082

CNG
 
Reserve
 
Pittsburgh 8
 
0 / 224,404
 
224,404

 
134,642

 
89,762

 
224,404

 
—

Consol Trade Area
 
Reserve
 
Pittsburgh 8
 
0 / 23,343
 
23,343

 
14,006

 
9,337

 
—

 
23,343

CNG Sewickley
 
Reserve
 
Sewickley
 
0 / 65,524
 
65,524

 
37,349

 
28,175

 
65,524

 
—

Contura Freeport
 
Reserve
 
Freeport
 
0 / 73,633
 
73,633

 
55,961

 
17,672

 
—

 
73,633

 
 
 
 
 
 
122,316 / 525,050
 
647,366

 
419,881

 
227,485

 
312,898

 
334,468

Total
 
 
 
 
 
189,787 / 552,914
 
742,701

 
491,273

 
251,428

 
316,901

 
425,800

______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
The “Status of Operation” for each mine is classified as follows:
Active — the mine is actively operating.
Reserve — a mine where exploration has been conducted sufficient to define recoverable reserves, but the mine is not yet in development or production stage.
(3)
“Assigned” reserves represent recoverable reserves that are either currently being mined, reserves that are controlled and accessible from a currently active mine or reserves at idled facilities where limited capital expenditures would be required to initiate operations. “Unassigned” reserves represent coal at currently non-producing locations that would require significant additional capital spending before operations begin.
(4)
McClure includes Deep Mine 41.


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The following table provides the location and coal reserves associated with each of Alpha’s mines or potential mines as of December 31, 2017:
As of December 31, 2017
(in thousands of short tons) (1)  
 
 
 
 
 
 
 
 
Recoverable Reserves
 
Reserve Control
Location/Mine
 
Status of
Operation (2)
 
Coal Bed
 
Assigned/
Unassigned (3)
 
Reserves
 
Proven
 
Probable
 
Owned
 
Leased
CAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Brooks Run West
 
Active
 
Various
 
75,754 / 77,182
 
152,936

 
86,544

 
66,392

 
—

 
152,936

Brooks Run South
 
Active
 
Various
 
51,613 / 64,399
 
116,012

 
71,871

 
44,141

 
1,261

 
114,751

Coal River East
 
Active
 
Various
 
136,771 / 87,593
 
224,364

 
145,822

 
78,542

 
108,918

 
115,446

Mid WV Surface
 
Active
 
Various
 
117,906 / 0
 
117,906

 
100,992

 
16,914

 
192

 
117,714

Total
 
 
 
 
 
382,044 / 229,174
 
611,218

 
405,229

 
205,989

 
110,371

 
500,847

______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
The “Status of Operation” for each mine is classified as follows:
Active— the mine is actively operating.
Reserve —a mine where exploration has been conducted sufficient to define recoverable reserves, but the mine is not yet in development or production stage.
(3)
“Assigned” reserves represent recoverable reserves that are either currently being mined, reserves that are controlled and accessible from a currently active mine or reserves at idled facilities where limited capital expenditures would be required to initiate operations. “Unassigned” reserves represent coal at currently non-producing locations that would require significant additional capital spending before operations begin.

The following table provides the breakdown between the quantity of reserves that is currently permitted or not permitted and the quantity of reserves that is met coal or steam coal associated with each of Contura’s mines or potential mines as of December 31, 2017:
As of December 31, 2017
(in thousands of short tons) (1)  
 
 
By Permit Status
 
By Coal Market Type  (2)
Location/Mine
 
Permitted
 
Not Permitted
 
Met
 
Steam
CAPP
 
 
 
 
 
 
 
 
Nicholas
 
2,120

 
14,291

 
16,411

 
—

Toms Creek
 
25,056

 
6,795

 
30,631

 
1,220

McClure(3)
 
37,862

 
9,211

 
47,033

 
40

 
 
65,038

 
30,297

 
94,075

 
1,260

NAPP
 
 
 
 
 
 
 
 
Cumberland
 
31,380

 
—

 
—

 
31,380

Greene Manor
 
—

 
229,082

 
—

 
229,082

CNG
 
—

 
224,404

 
—

 
224,404

Consol Trade Area
 
—

 
23,343

 
—

 
23,343

CNG Sewickley
 
—

 
65,524

 
—

 
65,524

Contura Freeport
 
13,858

 
59,775

 
44,180

 
29,453

 
 
45,238

 
602,128

 
44,180

 
603,186

 
 
 
 
 
 
 
 
 
Total
 
110,276

 
632,425

 
138,255

 
604,446

______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
Classification of coal market type is based on available quality information and is subject to change with shifting market condition and/or additional exploration.
(3)
McClure includes Deep Mine 41.


173


The following table provides the breakdown between the quantity of reserves that is currently permitted or not permitted and the quantity of reserves that is met coal or steam coal associated with each of Alpha’s mines or potential mines as of December 31, 2017:
As of December 31, 2017
(in thousands of short tons) (1)  
 
 
By Permit Status
 
By Coal Market Type (2)
Location/Mine
 
Permitted
 
Not Permitted
 
Met
 
Steam
CAPP
 
 
 
 
 
 
 
 
Brooks Run West
 
92,811

 
60,125

 
113,339

 
39,597

Brooks Run South
 
24,119

 
91,893

 
116,012

 
—

Coal River East
 
116,273

 
108,091

 
213,492

 
10,872

Mid WV Surface
 
25,729

 
92,177

 
87,732

 
30,174

Total
 
258,932

 
352,286

 
530,575

 
80,643

______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
Classification of coal market type is based on available quality information and is subject to change with shifting market conditions and/or additional exploration.

The following table provides a summary of the quality of Contura’s reserves as of December 31, 2017:
As of December 31, 2017
(in thousands of short tons) (1)  
 
 
 
 
 
 
 
 
 
 
 
 
Average Btu
 
 
Location/Mine or Seam
 
Reserves
 
Primary Coal Type (2)
 
<1% Sulfur
 
1 - 1.5% Sulfur
 
>1.5% Sulfur
 
>12,500
 
<12,500
 
Date Acquired
CAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nicholas / Jerry Fork / Eagle
 
6,010

 
HVM
 
6,010

 
—

 
—

 
6,010

 
—

 
07/26/16
Nicholas / Peerless
 
10,401

 
HVM
 
—

 
10,401

 
—

 
10,401

 
—

 
07/26/16
Toms Creek / (Multiple)
 
31,851

 
HVM
 
31,230

 
621

 
—

 
31,851

 
—

 
07/26/16
McClure (3)  / (Multiple)
 
47,073

 
HVM
 
47,073

 
—

 
—

 
47,073

 
—

 
07/26/16
NAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cumberland / Pittsburgh 8
 
31,380

 
S
 
—

 
—

 
31,380

 
31,380

 
—

 
07/26/16
Greene Manor/ Pittsburgh 8
 
229,082

 
S
 
—

 
—

 
229,082

 
229,082

 
—

 
07/26/16
CNG / Pittsburgh 8
 
224,404

 
S
 
—

 
—

 
224,404

 
224,404

 
—

 
07/26/16
Consol Trade Area / Pittsburgh 8
 
23,343

 
S
 
—

 
—

 
23,343

 
23,343

 
—

 
07/26/16
CNG Sewickley
 
65,524

 
S
 
—

 
—

 
65,524

 
65,524

 
—

 
07/26/16
Contura Freeport / Upper Freeport
 
73,633

 
HVM
 
73,633

 
—

 
—

 
73,633

 
—

 
07/26/16
Total
 
742,701

 
 
 
157,946

 
11,022

 
573,733

 
742,701

 
—

 
 
______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
Coal Type: M=Metallurgical Coal; S=Steam; MVM=Mid-Vol. Metallurgical Coal; HVM=High-Vol. Metallurgical Coal.
(3)
McClure includes Deep Mine 41.


174


The following table provides a summary of the quality of Alpha’s reserves as of December 31, 2017:
As of December 31, 2017
(in thousands of short tons) (1)  
 
 
 
 
 
 
 
 
 
 
 
 
Average Btu
Location/Mine or Seam
 
Reserves
 
Primary Coal Type (2)
 
<1% Sulfur
 
1 - 1.5%
Sulfur
 
>1.5%
Sulfur
 
>12,500
 
<12,500
 
Date Acquired
CAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Brooks Run West
 
152,936

 
M
 
142,186

 
2,003

 
8,747

 
144,189

 
8,747

 
2011

Brooks Run South
 
116,012

 
M
 
99,025

 
16,987

 
—

 
105,098

 
10,914

 
Varies

Coal River East
 
224,364

 
M
 
191,931

 
28,057

 
4,376

 
211,053

 
13,311

 
2011

Mid WV Surface
 
117,906

 
M
 
35,166

 
82,740

 
—

 
116,509

 
1,397

 
2011

Total
 
611,218

 
 
 
468,308

 
129,787

 
13,123

 
576,849

 
34,369

 
—

______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
Coal Type: M=Metallurgical Coal.

The following table provides a summary of information regarding Contura’s mining operations as of December 31, 2017:
 
 
 
 
 
 
 
 
Transportation
 
Preparation Plant(s)
Location/Mine or Seam
 
Reserves (thousands of short tons) (1)
 
Type (2)
 
Mining Equipment (3)
 
Rail
 
Other (4)
 
Capacity
(short tons per hr)
 
Utilization %
 
Source of Power
CAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nicholas / Jerry Fork
 
6,010

 
U
 
CM
 
NS
 
 
 
1,200
 
19
 
Mon Power
Toms Creek /
(Multiple)
 
31,851

 
U/S
 
CM/S/T/H
 
NS
 
 
 
800
 
33
 
Old Dominion
McClure (5)  /
(Multiple)
 
47,073

 
U
 
CM
 
CSX
 
 
 
1,000
 
67
 
MP2 Energy
NAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cumberland / Pittsburgh 8
 
31,380

 
U
 
LW
 
NS/CSX
 
B
 
1,600
 
71
 
West Penn Power
Total
 
116,314

 
 
 
 
 
 
 
 
 
 
 
 
 
 
______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
Type of Mine: S = Surface; U = Underground.
(3)
Mining Equipment: S = Shovel/Excavator/Loader; T = Trucks; LW = Longwall; CM = Continuous Miner; H = Highwall Miner.
(4)
Transportation: B = Barge Loadout availability.
(5)
McClure includes Deep Mine 41.
(6)
Loadout Only.


175


The following table provides a summary of information regarding Alpha’s mining operations as of December 31, 2017:
 
 
 
 
 
 
 
 
Transportation
 
Preparation Plant(s)
Location/Mine
 
Reserves
(thousands of short tons)  (1)
 
Type (2)
 
Mining
Equipment (3)
 
Rail
 
Other (4)
 
Capacity
(short tons per hr)
 
Utilization
%
 
Source of
Power
CAPP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Brooks Run West
 
152,936

 
U/S
 
S/T/CM/H
 
NS/CSX
 
B
 
1,200 (Bandmill) /
600 (Delbarton)
 
55% / 62%
 
American Electric Power
Brooks Run South
 
116,012

 
U
 
CM
 
NS/CSX
 
B
 
800 (Kepler) /
700 (Kingston)
 
34% / 55%
 
American Electric Power
Coal River East
 
224,364

 
U
 
CM
 
NS/CSX
 
B
 
2,400 (Marfork) /
1,200 (Mammoth)
 
40% / 53%
 
American Electric Power
Mid WV Surface
 
117,906

 
S
 
S/T/H
 
NS/CSX
 
B
 
1,600 (Inman)
 
32%
 
American Electric Power
Total
 
611,218

 
 
 
 
 
 
 
 
 
 
 
 
 
 
______________
(1)
1 short ton is equivalent to 0.907185 metric tons.
(2)
Type of Mine: S = Surface; U = Underground.
(3)
Mining Equipment: S = Shovel/Excavator/Loader; T = Trucks; CM = Continuous Miner; H = Highwall Miner.
(4)
Transportation: B = Barge Loadout availability.

Costs & Calculations
Coal tonnage is classified as reserve when demonstrating profit on a fully loaded cost basis. Pro forma testing conducted by MM&A demonstrated that Alpha’s and Contura’s reserves generate cash and are profitable on a fully loaded cost basis, including non-cash depreciation, depletion and amortization items. Fully loaded costs were compared to two-year historical sales realizations for all potential reserve areas. The classification of reserves is dependent upon the sum of all costs normalized to a per clean ton basis, including both cash and non-cash items, being less than the two-year historical sales price. The two-year historical sales price includes the following price ranges categorized by coal qualities:
Coal Qualities
 
Two-Year Historical Sales Price
Met High-Vol. A
 
$91 - $120
Met High-Vol. B
 
$71.50 - $91
Met Mid-Vol.
 
$101 - $104
Met Low-Vol.
 
$114
Steam
 
$44 - $58
For the surface mining resource areas, the mining costs were estimated using the surface mining overburden ratios. Direct mining costs were estimated for labor, blasting, fuel and lubrication supplies, repairs and maintenance, operating supplies and other costs. The pro forma mining cost estimates for underground mining areas began with the computation of representative total seam thickness for each area evaluated. The clean-tons-per-foot of mining advance was calculated to support mine production and productivity calculations.
All underground and highwall miner coal resources are expected to require washing to remove coal partings and out-of-seam contamination. Preparation plant yield was calculated by multiplying the in-seam recovery, out-of-seam contamination and plant efficiency factors. In-seam recovery factors were obtained based upon the relative percentages of coal and rock within the seam. Direct mining costs were estimated for labor, supplies, maintenance and repairs, mine power and other direct mining costs. Sales, general and administration and environmental cost allocations were based on values typically observed by MM&A. Sales variable costs for royalty payments, black lung excise tax and reclamation fees were calculated, along with cost components for other indirect mining costs and depreciation, depletion and amortization.

176


Coal Production
The following table provides a summary of coal production for Contura’s mining operations:
 
Coal Production (thousands of tons)
Location/Mine Complex
2017
 
2016
 
2015
CAPP
 
 
 
 
 
Nicholas
527

 
595

 
655

McClure
461

 
345

 
755

Toms Creek
1,372

 
1,315

 
1,385

Deep Mine 41
1,610

 
1,510

 
1,325

 
3,970

 
3,765

 
4,120

NAPP
 
 
 
 
 
Cumberland
6,770

 
6,959

 
7,490

Emerald
—

 
2

 
1,689

 
6,770

 
6,961

 
9,179

PRB (1)
 
 
 
 
 
Belle Ayr
14,723

 
14,884

 
18,319

Eagle Butte
16,335

 
19,003

 
19,650

 
31,058

 
33,887

 
37,969

Total
41,798

 
44,613

 
51,268

______________
(1)
In connection with the PRB divestiture, operations at the Belle Ayr and Eagle Butte mining complexes have been discontinued.

The following table provides a summary of coal production for Alpha’s mining operations:
 
Coal Production (thousands of tons)
Location/Mine Complex
2017
 
2016
 
2015
CAPP
 
 
 
 
 
Brooks Run West
4,987

 
4,692

 
5,149

Brooks Run South
1,693

 
1,482

 
1,795

Coal River East
3,433

 
2,351

 
2,507

Mid WV Surface
3,491

 
2,855

 
2,202

Total
13,604

 
11,380

 
11,653

Information provided within the previous tables concerning Contura’s and Alpha’s properties has been prepared in accordance with applicable U.S. federal securities laws. All mineral reserve estimates have been prepared in accordance with SEC Industry Guide 7.
Mine Life
The following table provides a summary of mine life for each of Contura’s active mines by region, as of December 31. 2017:
Mine Location
 
Segment
 
Mine Name
 
Estimated Years
PA
 
NAPP
 
Cumberland*
 
18
VA
 
CAPP
 
Deep Mine 41
 
26
WV
 
CAPP
 
Nicholas Complex
 
9
VA
 
CAPP
 
McClure Complex**
 
1 to 10
VA
 
CAPP
 
Toms Creek**
 
1 to 10
______________
*
Cumberland mine includes all of the Cumberland Reserve block and a portion of the Greene Manor Reserve block. The remaining portion of the Greene Manor Reserve block and the CNG and Consol Trade Area reserve blocks are located adjacent to the area included in the Cumberland mine life area.

177


**
Aggregation of mines which are not individually material (excluding Deep Mine 41 which Contura considers to be an individually material mine)

The following table provides a summary of mine life for each of Alpha’s active mines by region, as of December 31, 2017:
Mine Location
 
Segment
 
Mine Name
 
Estimated Years
WV
 
CAPP
 
Brooks Run West
 
31
WV
 
CAPP
 
Brooks Run South
 
69
WV
 
CAPP
 
Coal River East
 
65
WV
 
CAPP
 
Mid WV Surface
 
34
Coal Mining Techniques
Contura uses four different mining techniques to extract coal from the ground: longwall mining, room-and-pillar mining, truck and front-end loader mining and highwall mining. Alpha uses four different mining techniques to extract coal from the ground: room-and-pillar mining, truck-and-shovel mining, truck and front-end loader mining and highwall mining. Neither Contura nor Alpha uses mountaintop removal mining.
Longwall Mining
At Contura’s Cumberland mine complex, Contura utilizes longwall mining techniques, which are the most productive underground mining methods used in the United States. A rotating drum is trammed mechanically across the face of coal, and a hydraulic system supports the roof of the mine while the drum advances through the coal. Chain conveyors then move the loosened coal to a standard underground mine conveyor system for delivery to the surface. Continuous miners are used to develop access to long rectangular blocks of coal which are then mined with longwall equipment, allowing controlled subsidence behind the advancing machinery. Longwall mining is highly productive and most effective for large blocks of medium to thick coal seams. High capital costs associated with longwall mining demand large, contiguous reserves. Ultimate seam recovery of in-place reserves using longwall mining is much higher than the room-and-pillar mining underground technique. All of the coal mined at Contura’s longwall mines is processed in preparation plants to remove rock and impurities.
Room-and-Pillar Mining
Certain of Alpha’s and Contura’s mines in CAPP use room-and-pillar mining methods. In this type of mining, main airways and transportation entries are developed and maintained while remote-controlled continuous miners extract coal from the seam, leaving pillars to support the roof. Shuttle cars, continuous haulage or battery coal haulers are used to transport coal from the continuous miner to the conveyor belt for transport to the surface. This method is more flexible than longwall mining and often used to mine smaller coal blocks or thin seams. Ultimate seam recovery of in-place reserves is typically less than that achieved with longwall mining. All of this production is also washed in preparation plants before it becomes saleable clean coal.
Truck-and-Shovel Mining and Truck and Front-End Loader Mining
Contura utilizes truck/shovel and truck/front-end loader mining methods at its PRB surface mines. These methods are similar and involve using large, electric or hydraulic-powered shovels or diesel-powered front-end loaders to remove earth and rock (overburden) covering a coal seam which is later used to refill the excavated coal pits after the coal is removed. The loading equipment places the coal into haul trucks for transportation to a preparation plant or loadout area. Ultimate seam recovery of in-place reserves on average exceeds 90%. This surface-mined coal typically does not need to be cleaned in a preparation plant before sale. Productivity depends on overburden and coal thickness (strip ratio), equipment utilized and geologic factors.
Contour Mining
Alpha and Contura each use contour mining which limits the overburden removal from above a coal seam or series of coal seams. In contour mining, surface mining machinery follows the contours of a coal seam or seams around a ridge, excavating the overburden and recovering the coal seam or seams as a “contour bench” around the mountain is created. This contour bench is then backfilled and graded to approximate original contour after highwall mining.

178


Highwall Mining
Alpha and Contura each utilize highwall mining methods at its CAPP surface mines. A highwall mining system consists of a remotely controlled continuous miner, which extracts coal and conveys it via augers or belt conveyors to the portal. The cut is typically a rectangular, horizontal opening in the highwall (the unexcavated face of exposed overburden and coal in a surface mine) 9-feet or 11-feet wide and reaching depths of up to 1,000 feet. Multiple parallel openings are driven into the highwall, separated by narrow pillars that extend the full depth of the hole.
Marketing, Sales and Customer Contracts
Contura markets coal produced at its operations and purchases and resells coal mined by others, including Alpha. Contura has coal supply commitments with a wide range of electric utilities, steel manufacturers and industrial customers. Contura’s marketing efforts are centered on customer needs and requirements. By offering coal of various types and grades to provide specific qualities of heat content, sulfur and ash and other characteristics relevant to its customers, Contura and Alpha are able to serve a global customer base. Through this global platform, Contura’s and Alpha’s coals are shipped to customers on five continents. This diversity allows both companies to adjust to changing market conditions. Many of Contura’s and Alpha’s larger customers are well-established public utilities and steel manufacturers.
Alpha is one of America’s premier metallurgical coal suppliers, providing high quality products to domestic customers and, through an export arrangement with Contura, to steel manufacturers around the world. Alpha also supplies thermal coal to electric utilities and manufacturing industries both domestically and internationally. Alpha offers premium low volatile, medium volatile and high volatile metallurgical coals, and high quality Central Appalachia utility and industrial coals.
Contura sold a total of about 15.7 million tons of coal in 2017, consisting of approximately 10.8 million tons of captive coal, and approximately 4.9 million tons of T&L coal, including approximately 0.9 million tons of coal sold to Alpha. Contura sold a total of 8.2 million tons of coal in the six months ended June 30, 2018, consisting of approximately 5.1 million tons of captive coal, and 3.1 million tons of T&L coal, including approximately 0.1 million tons of coal sold to Alpha. Alpha sold a total of about 14.3 million tons of coal in 2017, consisting of approximately 13.3 million tons of captive coal, and approximately 1.0 million tons of brokered coal, including 4.1 million tons of coal sold to Contura. Alpha sold a total of 6.9 million tons of coal in the six months ended June 30, 2018, consisting of approximately 6.8 million tons of captive coal, and approximately 0.1 million tons of brokered coal, including 2.3 million tons of coal sold to Contura. Contura’s and Alpha’s captive coal volumes include coal produced and processed by each company, respectively, as well as small volumes purchased from third-party producers to blend with its produced coal in order to meet customer specifications. These volumes are processed by Contura and Alpha, meaning that each company washed, crushed or blended the coal at one of its preparation plants or loading facilities prior to resale. Contura’s T&L coal volumes solely include those volumes purchased from third-party producers (including Alpha, as noted above) and sold through Contura’s Trading and Logistics business.
The breakdown of tons sold by Contura for year ended December 31, 2017 and the six months ended June 30, 2018 are set forth in the table below. All of Contura’s steam coal sales were captive volumes.
 
Steam Coal Sales
 
Metallurgical Coal Sales
 
(In millions, except percentages)
 
Tons
 
% of Coal Sales Volume
 
% of Coal Revenues
 
Tons
 
% of Coal
Sales Volume
 
% of Coal
Revenues
Period Ended
Captive
 
Captive
 
T&L Coal
 
Captive
 
T&L Coal
 
Captive
 
T&L Coal
December 31, 2017
6.7
 
43%
 
21%
 
4.1
 
4.9
 
26%
 
31%
 
34%
 
45%
June 30, 2018 (1)
2.7
 
33%
 
14%
 
2.4
 
3.1
 
30%
 
37%
 
37%
 
49%
______________
(1)
Excludes freight and handling revenues.


179


The breakdown of tons sold by Alpha for year ended December 31, 2017 and the six months ended June 30, 2018 are set forth in the table below. All of Alpha’s steam coal sales were captive volumes.
 
Steam Coal Sales
 
Metallurgical Coal Sales
 
(In millions, except percentages)
 
Tons
 
% of Coal Sales Volume
 
% of Coal Revenues
 
Tons
 
% of Coal
Sales Volume
 
% of Coal
Revenues
Period Ended
Captive
 
Captive
 
T&L Coal
 
Captive
 
T&L Coal
 
Captive
 
T&L Coal
December 31, 2017
6.4
 
45%
 
28%
 
6.9
 
1.0
 
48%
 
7%
 
63%
 
9%
June 30, 2018 (1)
3.1
 
45%
 
28%
 
3.7
 
0.1
 
54%
 
1%
 
71%
 
1%
______________
(1)
Excludes freight and handling revenues.

Contura sold coal to approximately 57 and 47 different customers (other than Alpha) in 2017 and the six months ended June 30, 2018, respectively. Contura’s top 10 customers (other than Alpha) accounted for approximately 64% of 2017 total coal revenues (excluding coal revenues from sales to Alpha) and Contura’s largest customer accounted for approximately 16% of 2017 total coal revenues (excluding coal revenues from sales to Alpha). Pro Forma for the Mergers, no customer of the combined company would have accounted for more than 10% of 2017 total revenues. The following tables provide information regarding domestic and export sales by Contura and Alpha in 2017 by revenues and tons sold:
Contura
 
Tons Sold
 
Tons Sold as a Percentage of Coal Sales Volume
 
Coal
Revenues (excluding freight and handling revenues)
 
Percentage of Coal Revenues
 
(In millions, except percentages)
Export
8.2
 
52%
 
$1,024.6
 
74%
Domestic
7.5
 
48%
 
$367.9
 
26%
Alpha
 
Tons Sold
 
Tons Sold as a Percentage of Coal Sales Volume
 
Coal
Revenues (excluding freight and handling revenues)
 
Percentage of Coal Revenues
 
(In millions, except percentages)
Export
5.8
 
41%
 
$595.3
 
50%
Domestic
8.5
 
59%
 
$591.6
 
50%
The following tables provide information regarding domestic and export sales by Contura and Alpha in the six months ended June 30, 2018 by revenues and tons sold:
Contura
 
Tons Sold
 
Tons Sold as a Percentage of Coal Sales Volume
 
Coal
Revenues (excluding freight and handling revenues)
 
Percentage of Coal Revenues
 
(In millions, except percentages)
Export
5.7
 
69%
 
$706.7
 
86%
Domestic
2.5
 
31%
 
$119.8
 
14%

180


Alpha
 
Tons Sold
 
Tons Sold as a Percentage of Coal Sales Volume
 
Coal
Revenues (excluding freight and handling revenues)
 
Percentage of Coal Revenues
 
(In millions, except percentages)
Export
3.0
 
43%
 
$317.0
 
54%
Domestic
3.9
 
57%
 
$267.4
 
46%
Alpha sold coal to approximately 34 and 29 different customers (including Contura) in 2017 and the six months ended June 30, 2018, respectively. Alpha’s top 10 customers (other than Contura) accounted for approximately 87% of 2017 coal revenues (excluding coal revenues from sales to Contura). Pro Forma for the Mergers, no customer of the combined company would have accounted for more than 10% of 2017 total revenues.
Contura, Alpha’s largest customer, accounted for approximately 39% of total 2017 coal revenues.
Contura’s and Alpha’s export shipments serviced customers through shipping ports in 22 and 23 countries, respectively, during 2017. Europe was Contura’s largest export market in 2017, with coal sales to Europe accounting for approximately 44% of total export coal revenues (excluding freight and handling revenues) and 32% of total coal revenues (excluding freight and handling revenues). Excluding sales by Alpha to Contura, Europe was Alpha’s largest export market in 2017, with coal sales to Europe accounting for approximately 55% of total export coal revenues (excluding freight and handling revenues) and 27% of total coal revenues (excluding freight and handling revenues). Contura’s export shipments serviced customers through shipping ports in 21 countries during the six months ended June 30, 2018. Europe was Contura’s largest export market in the six months ended June 30, 2018, with coal sales to Europe accounting for approximately 37% of total export coal revenues (excluding freight and handling revenues) and 32% of total coal revenues (excluding freight and handling revenues). Alpha’s export shipments serviced customers through shipping ports in 22 countries during the six months ended June 30, 2018. Europe was Alpha’s largest export market in the six months ended June 30, 2018, with coal sales to Europe accounting for approximately 45% of total export coal revenues (excluding freight and handling revenues) and 24% of total coal revenues (excluding freight and handling revenues). All of Contura’s and Alpha’s sales are made in U.S. dollars.
Contura and Alpha each enter into long-term contracts (typically ranging from one to five years) with its steam coal customers. Terms of these agreements may address coal quality requirements, quantity parameters, flexibility and adjustment mechanisms, permitted sources of supply, treatment of environmental constraints, options to extend, force majeure, suspension, termination and assignment issues, the allocation between the parties of the cost of complying with future governmental regulations and many other matters.
Generally, Contura’s and Alpha’s long-term steam coal agreements contain committed volumes and fixed prices for a period or a certain number of periods pursuant to which steam coal will be delivered under these agreements. After a fixed price period elapses, the long-term agreement may provide for a price negotiation/determination period prior to the commencement of the pending unpriced contract period. The price negotiations generally consider either then current market prices and/or relevant market indices. Provisions of this sort increase the difficulty of predicting the exact prices a coal supplier will receive for its coal during the course of the long-term agreement. During 2017, approximately 86% of Contura’s and 16% of Alpha’s respective steam coal sales volume were delivered pursuant to long-term contracts.
Distribution and Transportation
Coal consumed domestically is usually sold at the mine and transportation costs are normally borne by the purchaser. Export coal is usually sold at the loading port, with purchasers responsible for further transportation.
For Contura’s export sales, Contura negotiates transportation agreements with various providers, including railroads, trucks, barge lines, and terminal facilities to transport shipments to the relevant loading port. Contura and Alpha coordinate with customers, mining facilities and transportation providers to establish shipping schedules that meet each customer’s needs. Contura’s and Alpha’s captive coal is loaded from their respective preparation plants, loadout facilities, and in certain cases directly from its mines. The coal Contura purchases is loaded in some cases directly from mines and preparation plants operated by third parties or from an export terminal. Virtually all of Contura’s and Alpha’s coal is transported from the mine to the respective company’s preparation plants by truck or belt conveyor systems. It is transported from preparation plants and loading facilities to the customer by means of railroads, trucks, barge lines, and lake-going and ocean-going vessels from terminal facilities. Contura and Alpha each depend upon rail, barge, trucking and other systems to deliver coal to markets. In 2017 and the six months ended June 30, 2018, Contura’s produced coal was transported from the mines and to the customer

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primarily by rail, with the main rail carriers being CSX Transportation and Norfolk Southern Railway Company. Rail shipments constituted approximately 41% and 55% of total shipments of captive coal volume from Contura’s mines to the customer in 2017 and the six months ended June 30, 2018, respectively. The balance was shipped from Contura’s preparation plants, loadout facilities or mines via truck or barge. Contura’s export sales are primarily shipped to Chesapeake Bay Pier shipping port in Maryland, and DTA and Pier 6 (Lamberts Point) shipping ports in Virginia. Contura owns a 65.0% interest in the Dominion Terminal Associates (DTA) coal export terminal at Newport News, Virginia.
In 2017 and the six months ended June 30, 2018, Alpha’s produced coal was transported from the mines and to the customer primarily by rail, with the main rail carriers being CSX Transportation and Norfolk Southern Railway Company. Rail shipments constituted approximately 69% and 69% of total shipments of captive coal volume from Alpha’s mines to its customers in 2017 and the six months ended June 30, 2018, respectively. The balance was shipped from Alpha’s preparation plants, loadout facilities or mines via truck or barge. Alpha’s export sales are primarily shipped to either DTA via CSXT or Pier 6 via the Norfolk Southern Railroad.
Equipment
Contura’s and Alpha’s equipment, including underground and surface, is of varying age and in good and operational condition. It is regularly maintained and serviced by their respective dedicated maintenance workforce, including scheduled preventive maintenance.
Procurement
Contura and Alpha each incur substantial expenses per year to procure goods and services in support of their respective business activities in addition to capital expenditures. Principal goods and services include maintenance and repair parts and services, electricity, fuel, roof control and support items, explosives, tires, conveyance structure, ventilation supplies and lubricants. Contura uses suppliers for a significant portion of its equipment rebuilds and repairs both on- and off-site, as well as construction and reclamation activities and to support computer systems.
Contura has a centralized sourcing group, which sets sourcing policy and strategy focusing primarily on major supplier contract negotiation and administration, including but not limited to the purchase of major capital goods in support of the mining operations. Contura promotes competition between suppliers and seek to develop relationships with suppliers that focus on lowering its costs while improving quality and service. Contura seeks suppliers who identify and concentrate on implementing continuous improvement opportunities within their area of expertise.
Alpha has a centralized strategic sourcing and material management department that promotes its company-wide goal to control costs and assure performance by vendors. Sourcing policies and procedures are focused on, but not limited to, major providers of capital goods and services in support of Alpha’s mining operations. Alpha develops vendor relationships that lower costs through volume purchases and measures contract compliance with Alpha’s KPI program for compliance to quality parameters established in contracts. Alpha has a warehouse system that makes sure key consumables are available and managed. Materials Management provides an additional revenue stream through its equipment and scrap sales process. Alpha lowers expenditures through the idle mine supply transfer program where idled mine supplies are utilized.
Competition
The coal industry is highly competitive. Contura and Alpha each compete for U.S. sales with numerous coal producers in the Appalachian region, and the Illinois basin, and with western coal producers. The most important factors on which Contura and Alpha each compete are delivered coal price, coal quality and characteristics, transportation costs from the mine to the customer and the reliability of supply. Competition from coal with lower production costs shipped from other coal basins has resulted in increased competition for coal sales in the Appalachian region.
Demand for steam coal and the prices that each of Contura and Alpha are able to obtain for it are closely linked to coal consumption patterns of the domestic electric generation industry. These coal consumption patterns are influenced by many factors beyond Contura’s and Alpha’s control, including the demand for electricity, which is significantly dependent upon summer and winter temperatures, and commercial and industrial outputs in the U.S., environmental and other government regulations, technological developments and the location, availability, quality and price of competing sources of power. These competing sources include natural gas, nuclear, fuel oil and increasingly, renewable sources such as solar and wind power. Demand for thermal coal and the prices that each of Contura and Alpha are able to obtain for it are affected by each of the above factors.
Demand for met coal and the prices that each of Contura and Alpha are able to obtain for it depend to a large extent on the demand and price for steel in the U.S. and internationally. This demand is influenced by factors beyond Contura’s and Alpha’s

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control, including overall economic activity and the availability and relative cost of substitute materials. In the export met coal market, Contura competes with producers from Australia and Canada and with other international producers on many of the same factors as in the U.S. market. Competition in the export market is also impacted by fluctuations in relative foreign exchange rates and costs of inland and ocean transportation, among other factors.
Employees
As of June 30, 2018, Contura had approximately 1,750 employees, with the United Mine Workers of America (“UMWA”) representing approximately 37% of these employees. Certain of Contura’s subsidiaries have wage agreements with the UMWA that are subject to termination by either the employer or the UMWA, without cause, on July 31, 2020. Either party may also reopen the wage agreements on July 26, 2018, for the sole purpose of renegotiating changes in the hourly wage rates, by giving written notice to the other party during the period from May 1, 2018 through June 1, 2018. The UMWA has issued such notices to the signatory employers. Relations with organized labor are important to Contura’s success, and it believes it has good relations with its employees.
As of June 30, 2018, Alpha had approximately 2,700 employees, with the UMWA representing 2% of these employees. Certain of Alpha’s subsidiaries have wage agreements with the UMWA that are subject to termination by either the employer or the UMWA, without cause, on July 31, 2020. Either party may also reopen the wage agreements on July 15, 2018, for the sole purpose of renegotiating changes in the hourly wage rates, by giving written notice to the other party during the period from May 1, 2018 through June 1, 2018. Relations with organized labor are important to Alpha’s success, and it believes it has good relations with its employees.
Legal Proceedings
Contura could become party to legal proceedings from time to time. These proceedings, as well as governmental examinations, could involve various business units and a variety of claims including, but not limited to, contract disputes, personal injury claims, property damage claims (including those resulting from blasting, trucking and flooding), environmental and safety issues, and employment matters. While some legal matters may specify the damages claimed by the plaintiffs, many seek an unquantified amount of damages. Even when the amount of damages claimed against Contura or its subsidiaries is stated, (i) the claimed amount may be exaggerated or unsupported; (ii) the claim may be based on a novel legal theory or involve a large number of parties; (iii) there may be uncertainty as to the likelihood of a class being certified or the ultimate size of the class; (iv) there may be uncertainty as to the outcome of pending appeals or motions; and/or (v) there may be significant factual issues to be resolved. As a result, if such legal matters arise in the future Contura may be unable to estimate a range of possible loss for matters that have not yet progressed sufficiently through discovery and development of important factual information and legal issues. Contura records accruals based on an estimate of the ultimate outcome of these matters, but these estimates can be difficult to determine and involve significant judgment.
Alpha could become party to legal proceedings from time to time incidental to its normal business activities. Alpha’s legal proceedings have historically ranged from cases brought by a single plaintiff to purported class actions. While some matters specify the damages claimed by the plaintiff(s), many seek an unquantified amount of damages. Accordingly, any estimated damages or range of damages may not represent Alpha’s maximum potential exposure. Legal proceedings and governmental examinations may change from time to time, and actual results may vary significantly from Alpha’s estimated exposure from those matters. Alpha evaluates developments in legal proceedings and governmental examinations that could cause a change in the amount of reserves previously recorded. Alpha records accruals based on an estimate of the ultimate outcome of these matters, but these estimates can be difficult to determine and involve significant judgment.
On March 5, 2014, EPA, the U.S. Department of Justice, West Virginia Department of Environmental Protection, the Pennsylvania Department of Environmental Protection and the Kentucky Energy and Environment Cabinet filed a Complaint against Old Alpha and its permit holding subsidiaries in Kentucky, Pennsylvania, Tennessee, Virginia and West Virginia alleging that Old Alpha’s mining affiliates in those states and in Tennessee and Virginia exceeded certain water discharge permit limits during the period of 2006 to 2013 and simultaneously entered into a Consent Decree with Alpha resolving their claims. The Consent Decree was entered by the Southern District of West Virginia on November 26, 2014 and amended on February 28, 2018 (the “Alpha Consent Decree”). As part of the Alpha Consent Decree, Alpha agreed to implement an integrated environmental management system and an expanded auditing/reporting protocol, install selenium and osmotic pressure treatment facilities at specific locations, and certain other measures. The Alpha Consent Decree required Alpha to pay $27.5 million in civil penalties, to be divided among the federal government and state agencies. Alpha has constructed all required water treatment systems, implemented the environmental management system, and otherwise complied with the terms and conditions of the Alpha Consent Decree. Pursuant to the Stipulation, among other things, one or more subsidiaries of Contura assumed the Section IX Osmotic Pressure Injunctive Relief requirements under the Alpha Consent Decree at the Cumberland and Emerald mines from Alpha, and such Contura subsidiaries may serve a request for termination of the Alpha

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Consent Decree only after completing such requirements and thereafter maintaining consistent satisfactory compliance with the Consent Decree for a period of two years. Two of our subsidiaries have formally joined in the Alpha Consent Decree to confirm our obligations as set forth in the Stipulation. Alpha remains subject to the other requirements of the Alpha Consent Decree and pays stipulated penalties to the United States federal government and the state of West Virginia when water discharge permit limitations are exceeded. Since July 26, 2016, Contura and Alpha have been and are currently in material compliance with their respective obligations under the Stipulation.
On March 20, 2012, three environmental groups filed a citizen’s suit against two of ANR’s subsidiaries, Alex Energy, Inc. (“Alex Energy”) and Elk Run Coal Company, Inc. (“Elk Run”), in federal court in the Southern District of West Virginia. The suit alleged violations of the terms of the subsidiaries’ water discharge permits concerning conductivity levels, although the subject permits do not contain numerical limits on conductivity. The plaintiffs sought a civil penalty as well as injunctive relief. On June 4, 2014, the court entered partial summary judgment against the subsidiaries. On December 15, 2014, the parties reached agreement on definitive settlement terms, which the court approved on February 2, 2015. The settlement terms provided Alex Energy and Elk Run the opportunity to use stream habitat enhancement before having to construct treatment and set a compliance deadline of August 1, 2019. As part of a comprehensive settlement of the objections to the Plan of Reorganization, Alex Energy and Elk Run received an 18 month extension to comply with the terms of the settlement. In exchange, Alex Energy and Elk Run agreed to (a) make $5.5 million of donations by March 31 of 2018, (b) provide in-kind contributions on pilot projects testing innovative reclamation techniques, (c) donate the proceeds of sales of certain surface properties and (d) donate certain coal reserves owned in Pennsylvania, in each case, to non-profit organizations of the environmental groups’ choosing. On August 17, 2018, Alex Energy and Elk Run agreed to a further modification of the settlement to eliminate the original compliance metrics and the amended schedule and replace them with a new compliance approach focused on improving aquatic resources through the use of innovative reclamation and stream improvement techniques and submitted a joint motion to modify the settlement with the federal court in the Southern District of West Virginia. If the court approves the modified settlement, Alex Energy and Elk Run would make $9 million of cash donations to a non-profit organization of the environmental groups’ choosing and contribute $12 million of in-kind reclamation work, in both cases through 2021, a portion of which can be satisfied through the donation of properties that can be used for the reclamation projects. This modified settlement has been submitted to the court for approval and a decision is expected in the fourth quarter of 2018.


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ENVIRONMENTAL AND OTHER REGULATORY MATTERS
Unless otherwise indicated or the context otherwise requires, references in this “Environmental and Other Regulatory Matters” section to “the combined company,” “we,” “us” and other similar terms refer to Contura Energy, Inc. and its consolidated subsidiaries after giving effect to the mergers.
Federal, state and local authorities regulate the U.S. coal mining industry and the industries it serves with respect to matters such as employee health and safety, permitting and licensing requirements, air quality standards, water quality, plant and wildlife protection, the reclamation of mining properties after mining has been completed, the discharge of materials into the environment, surface subsidence from underground mining, and the effects of mining on groundwater quality and availability. These laws and regulations, which are extensive, subject to change, and have tended to become stricter over time, have had, and will continue to have, a significant effect on our production costs and our competitive position relative to certain other sources of electricity generation. Future legislation, regulations or orders, as well as future interpretations and more rigorous enforcement of existing laws, regulations or orders, may require substantial increases in equipment and operating costs to us and delays, interruptions, or a termination of operations, the extent of which we cannot predict. We intend to continue to comply with these regulatory requirements as they evolve by timely implementing necessary modifications to facilities or operating procedures. Future legislation, regulations, orders or regional or international arrangements, agreements or treaties, as well efforts by private organizations, including those relating to global climate change, may continue to cause coal to become more heavily regulated.
We endeavor to conduct our mining operations in compliance with all applicable federal, state, and local laws and regulations. We have certain procedures in place that are designed to enable us to comply with these laws and regulations. However, due to the complexity and interpretation of these laws and regulations, we cannot guarantee that we have been or will be at all times in complete compliance, and violations are likely to occur from time to time. None of the violations or the monetary penalties assessed upon Alpha since the Alpha Restructuring or upon Contura have been material. Future liability under or compliance with environmental and safety requirements could, however, have a material adverse effect on our operations or competitive position. Under some circumstances, substantial fines and penalties, including revocation or suspension of mining permits, may be imposed under the laws described below.
Monetary sanctions, expensive compliance measures and, in severe circumstances, criminal sanctions may be imposed for failure to comply with these laws.
As of June 30, 2018, Contura had accrued $60.9 million for reclamation liabilities and mine closures, including $5.6 million of current liabilities. As of June 30, 2018, Alpha had accrued $66.5 million for reclamation liabilities and mine closures, including $9.9 million of current liabilities. As of June 30, 2018, the combined company would have $273.0 million accrued for reclamation liabilities and mine closures, including $15.5 million of current liabilities, on a pro forma basis.
Mining Permits and Approvals
Numerous governmental permits or approvals are required for mining operations pursuant to certain federal, state and local laws applicable to our operations. When we apply for these permits and approvals, we may be required to prepare and present data to federal, state or local authorities pertaining to the effect or impact that any proposed production or processing of coal may have upon the environment and measures we will take to minimize and mitigate those impacts. The requirements imposed by any of these authorities may be costly and time consuming and may delay commencement or continuation of mining operations.
In order to obtain mining permits and approvals from federal and state regulatory authorities, mine operators, including us, must submit a reclamation plan for restoring, upon the completion of mining operations, the mined property to its prior or better condition, productive use or other permitted condition. Typically, we submit the necessary permit applications several months, or even years, before we plan to begin mining a new area. Mining permits generally are approved many months or even years after a completed application is submitted. Therefore, we cannot be assured that we will obtain future mining permits in a timely manner.
Permitting requirements also require, under certain circumstances, that we obtain surface owner consent if the surface estate has been severed from the mineral estate. This requires us to negotiate with third parties for surface access that overlies coal we control or intend to control. These negotiations can be costly and time-consuming, lasting years in some instances,

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which can create additional delays in the permitting process. If we cannot successfully negotiate for surface rights, we could be denied a permit to mine coal we already control.
Contura is in the process of transferring certain permits for the PRB operations it sold to Blackjewel. During the permit transfer process, Blackjewel will conduct mining operations under such permits in accordance with a permit operating agreement between the parties. There can be no assurance that such transfers will be completed on a timely basis, or at all.
Surface Mining Control and Reclamation Act
SMCRA, which is administered by the Office of Surface Mining Reclamation and Enforcement (“OSM”), establishes mining, environmental protection, reclamation, and closure standards for all aspects of surface mining as well as many aspects of underground mining that effect surface expressions. Mine operators must obtain SMCRA permits and permit renewals from the OSM or from the applicable state agency if the state agency has obtained primary control of administration and enforcement of the SMCRA program, or primacy. A state agency may obtain primacy if OSM concludes that the state regulatory agency’s mining regulatory program is no less stringent than the federal mining program under SMRCA. States where we have active mining operations have achieved primacy and issue permits in lieu of OSM. OSM maintains oversight of how the states administer their programs.
SMCRA permit provisions include a complex set of requirements which include: coal prospecting; mine plan development; topsoil or growth medium removal, storage and replacement; selective handling of overburden materials; mine pit backfilling and grading; protection of the hydrologic balance, including outside the permit area; subsidence control for underground mines; surface drainage control; mine drainage and mine discharge control and treatment; and re-vegetation and reclamation.
The mining permit application process is initiated by collecting baseline data to adequately characterize the pre- mine environmental condition of the permit area. This work includes, but is not limited to, surveys of cultural and historical resources, soils, vegetation, wildlife, assessment of surface and ground water hydrology, climatology, and wetlands. In conducting this work, we collect geologic data to define and model the soil and rock structures associated with the coal that we will mine. We develop mining and reclamation plans by utilizing this geologic data and incorporating elements of the environmental data. The mining and reclamation plan incorporates the provisions of SMCRA, the state programs, and the complementary environmental programs that affect coal mining. Also included in the permit application are documents defining ownership and agreements pertaining to coal, minerals, oil and gas, water rights, rights of way and surface land, and documents required of the OSM’s Applicant Violator System, including the mining and compliance history of officers, directors and principal owners of the entity.
Regulations under SMCRA and its state analogues provide that a mining permit or modification can, under certain circumstances, be delayed, refused or revoked if we or any entity that owns or controls us or is under common ownership or control with us have unabated permit violations or have been the subject of permit or reclamation bond revocation or suspension. These regulations define certain relationships, such as owning over 50% of stock in an entity or having the authority to determine the manner in which the entity conducts mining operations, as constituting ownership and control. Certain other relationships are presumed to constitute ownership or control, including being an officer or director of an entity or owning between 10% and 50% of the mining operator. This presumption, in some cases, can be rebutted where the person or entity can demonstrate that it in fact does not or did not have authority directly or indirectly to determine the manner in which the relevant coal mining operation is conducted. Thus, past or ongoing violations of federal and state mining laws by us or by coal mining operations owned or controlled by our significant stockholders, directors or officers or certain other third party affiliates could provide a basis to revoke existing permits and to deny the issuance of additional permits or modification or amendment of existing permits. This is known as being “permit-blocked.” In recent years, the permitting required for coal mining has been the subject of increasingly stringent regulatory and administrative requirements and extensive litigation by environmental groups.
Once a permit application is prepared and submitted to the regulatory agency, it goes through a completeness review and technical review. Public notice of the proposed permit is given that also provides for a comment period before a permit can be issued. Some SMCRA mine permits take over a year to prepare, depending on the size and complexity of the mine and may take many months or even years to be issued. Regulatory authorities have considerable discretion in the timing of the permit

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issuance and the public and other agencies have rights to comment on and otherwise engage in the permitting process, including through intervention in the courts.
The Abandoned Mine Land Fund, which is part of SMCRA, requires a fee on all coal produced. The proceeds are used to reclaim mine lands closed or abandoned prior to SMCRA’s adoption in 1977. The current fee is $0.28 per ton on surface-mined coal and $0.12 per ton on deep-mined coal. For the fiscal year ended 2017, we recorded $3.8 million of expense related to these fees, on a pro forma basis. For the six months ended June 30, 2018, we recorded $1.8 million of expense related to these fees, on a pro forma basis.
While SMCRA is a comprehensive statute, SMCRA does not supersede the need for compliance with other major environmental statutes, including the Endangered Species Act; Clean Air Act; Clean Water Act; Resource Conservation and Recovery Act (“RCRA”) and Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”).
Surety Bonds
Federal and state laws require us to obtain surety bonds or other approved forms of security to cover the costs of certain long-term obligations including mine closure or reclamation costs under SMCRA, federal and state workers’ compensation costs, coal leases and other miscellaneous obligations. As of December 31, 2017 and June 30, 2018, Contura’s posted third-party surety bond amount in all states where we operate was approximately $403.4 million and $391.8 million, respectively, which was used to primarily secure the performance of our reclamation or lease obligations. As of December 31, 2017 and June 30, 2018, Alpha’s posted third-party surety bond amount in all states where it operates was approximately $265.6 million and $183.4 million, respectively, which was used to primarily secure the performance of our reclamation or lease obligations.
Posting of a bond or other security with respect to the performance of reclamation obligations is a condition to the issuance of a permit under SMCRA. Under the terms of agreements we and Alpha entered into in connection with the Alpha Restructuring, we and Alpha were required to replace Alpha’s self-bonds with surety bonds, collateralized bonds, or other financial assurance mechanisms, over time and under applicable regulations, self-bonding may not be available to us as a means to comply with our reclamation bonding obligations for the foreseeable future. As of August 17, 2018, Alpha had no remaining self-bonds with respect to mining permits relating to operations sold to LCC. These self-bonds will be canceled upon the transfer of these permits to LCC. In August 2016, OSM announced its decision to pursue a rulemaking to evaluate self-bonding for coal mines, including eligibility standards. OSM has not yet issued a proposed rule to address this issue.
Clean Air Act
The Clean Air Act and comparable state laws that regulate air emissions affect coal mining operations both directly and indirectly. Direct impacts on coal mining and processing operations include Clean Air Act permitting requirements and emission control requirements relating to particulate matter, which may include controlling fugitive dust. The Clean Air Act indirectly affects coal mining operations by extensively regulating air emissions of particulate matter, sulfur dioxide, nitrogen oxides, mercury and other compounds emitted by coal-fired electricity generating plants or the use of met coal in connection with steelmaking operations. In recent years, Congress has considered legislation that would require increased reductions in emissions of sulfur dioxide, nitrogen oxide, and mercury. The general effect of emission regulations on coal-fired power plants could be to reduce demand for coal.
In addition to the GHG issues discussed below, the air emissions programs that may materially and adversely affect our operations, financial results, liquidity, and demand for coal, directly or indirectly, include, but are not limited to, the following:
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Acid Rain. Title IV of the Clean Air Act requires reductions of sulfur dioxide emissions by electric utilities. Affected electricity generators have sought to meet these requirements by, among other compliance methods, switching to lower sulfur fuels, installing pollution control devices, reducing electricity generating levels or purchasing or trading sulfur dioxide emission allowances. We cannot accurately predict the effect of these provisions of the Clean Air Act on us in future years.

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NAAQS for Criteria Pollutants. The Clean Air Act requires the EPA to set standards, referred to as National Ambient Air Quality Standards (“NAAQS”), for six common air pollutants, including nitrogen oxide, sulfur dioxide, particulate matter, and ozone. Areas that are not in compliance (referred to as “non- attainment areas”) with these standards must take steps to reduce emissions levels. Over the past several years, the EPA has revised its NAAQS for nitrogen oxide, sulfur dioxide, particulate matter and ozone, in each case making the standards more stringent. As a result, some states will be required to amend their existing individual state implementation plans (“SIPs”) to achieve compliance with the new air quality standards. Other states will be required to develop new plans for areas that were previously in “attainment,” but do not meet the revised standards.
For example, in October 2015, the EPA finalized the NAAQS for ozone pollution and reduced the limit to 70 parts per billion (ppb) from the previous 75 ppb standard. The EPA made the majority of area designations related to this rule on November 16, 2017 and June 4, 2018 and finalized designations for the remaining regions of the country on July 25, 2018. Under the revised NAAQS for ozone in particular, significant additional emissions control expenditures may be required at coal-fired power plants. The final rules and new standards may impose additional emissions control requirements on our customers in the electric generation, steelmaking, and coke industries. EPA is in the process of making attainment designations with respect to these rules. Although coal mining and processing operations may emit certain criteria pollutants, we operate in material compliance with our permits. However, our operations could be impacted if the attainment status of the areas in which we operate changes in the future.
A suit by industry challenging the EPA’s 2015 Ozone NAAQS ( Murray Energy Corp. v. EPA) is currently pending in the D.C. Circuit. In April 2017, the D.C. Circuit Court granted EPA’s motion to indefinitely delay any decision on the challenges pending the EPA’s possible reconsideration of the rule. In July 2018, the D.C. Circuit Court returned the matter to its active docket and in August 2018, the EPA indicated to the court that it would not be revising the 2015 standards.
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NOx SIP Call. The NOx SIP Call program was established by the EPA in October of 1998 to reduce the transport of nitrogen oxide and ozone on prevailing winds from the Midwest and South to states in the Northeast, which said they could not meet federal air quality standards because of migrating pollution. The program is designed to reduce nitrogen oxide emissions by one million tons per year in 22 eastern states and the District of Columbia. As a result of the program, many power plants have been or will be required to install additional emission control measures, such as selective catalytic reduction devices. Installation of additional emission control measures will make it more costly to operate coal-fired power plants, potentially making coal a less attractive fuel.
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Cross-State Air Pollution Rule. In June 2011, the EPA finalized the CSAPR, which required 28 states in the Midwest and eastern seaboard of the U.S. to reduce power plant emissions that cross state lines and contribute to ozone and/or fine particle pollution in other states. Nitrogen oxide and sulfur dioxide emission reductions were scheduled to commence in 2012, with further reductions effective in 2014. However, implementation of CSAPR’s requirements were delayed due to litigation. In October 2014, the EPA issued an interim final rule reconciling the CSAPR rule with the Court’s order, which calls for Phase 1 implementation in 2015 and Phase 2 implementation in 2017.
In September 2016, the EPA finalized an update to the CSAPR ozone season program by issuing the Final CSAPR Update. The Final CSAPR Update rule is the subject of a pending legal challenge in the D.C. Circuit by five states. For states to meet their requirements under CSAPR, a number of coal-fired electric generating units will likely need to be retired, rather than retrofitted with the necessary emission control technologies, reducing demand for steam coal.
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Mercury and Hazardous Air Pollutants. In February 2012, the EPA formally adopted a rule to regulate emissions of mercury and other metals, fine particulates, and acid gases such as hydrogen chloride from coal- and oil-fired power plants, referred to as “MATS.” In March 2013, the EPA finalized reconsideration of the MATS rule as it pertains to new power plants, principally adjusting emissions limits for new coal- fired units to levels considered attainable by existing control technologies. In subsequent litigation, the U.S. Supreme Court struck down the MATS rule based on the EPA’s failure to take costs into consideration. The D.C. Circuit allowed the current rule to stay in place until the EPA issued a new finding. In April 2016, the EPA issued a final finding that it is appropriate and necessary to set standards for emissions of air toxics from coal- and oil-fired power plants. However, in April 2017, the EPA indicated in a court filing that it may reconsider this finding, and on April 27, 2017, the D.C. Circuit stayed the litigation.

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Apart from MATS, several states have enacted or proposed regulations requiring reductions in mercury emissions from coal-fired power plants, and federal legislation to reduce mercury emissions from power plants has been proposed. Regulation of mercury emissions by the EPA, states, Congress, or pursuant to an international treaty may further decrease the demand for coal. Like CSAPR, MATS and other similar future regulations could accelerate the retirement of a significant number of coal-fired power plants, in addition to the significant number of plants and units that have already been retired as a result of environmental and regulatory requirements and uncertainties adversely impacting coal-fired generation. Such retirements would likely adversely impact our business.
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Regional Haze, New Source Review and Methane. The EPA’s regional haze program is intended to protect and improve visibility at and around national parks, national wilderness areas and international parks. In December 2011, the EPA issued a final rule under which the emission caps imposed under CSAPR for a given state would supplant the obligations of that state with regard to visibility protection. In May 2012, the EPA finalized a rule that allows the trading programs in CSAPR to serve as an alternative to determining source-by-source Best Available Retrofit Technology (“BART”). This rule provides that states in the CSAPR region can substitute participation in CSAPR for source-specific BART for sulfur dioxide and/or nitrogen oxides emissions from power plants. This program may result in additional emissions restrictions from new coal-fueled power plants whose operations may impair visibility at and around federally protected areas. This program may also require certain existing coal-fueled power plants to install additional control measures designed to limit haze causing emissions, such as sulfur dioxide, nitrogen oxides, volatile organic chemicals and particulate matter. These limitations could result in additional coal plant closures and affect the future market for coal.
In addition, the EPA’s new source review program under certain circumstances requires existing coal-fired power plants, when modifications to those plants significantly change emissions, to install the more stringent air emissions control equipment required of new plants.
Litigation seeking to force the EPA to list coal mines as a category of air pollution sources that endanger public health or welfare under Section 111 of the CAA and establish standards to reduce emissions from sources of methane and other emissions related to coal mines was dismissed by the D.C. Circuit in May 2014. In that case, the Court denied a rulemaking petition citing agency discretion and budgetary restrictions, and ruled the EPA has reasonable discretion to carry out its delegated responsibilities, which includes determining the timing and relative priority of its regulatory agenda. In July 2014, the D.C. Circuit denied a petition seeking a rehearing of the case en banc. Litigation regarding these issues may continue, and could result in the need for additional air pollution controls for coal fired units and our operations.
Global Climate Change
Global climate change initiatives and public perceptions have resulted, and are expected to continue to result, in decreased coal-fired power plant capacity and utilization, phasing out and closing many existing coal-fired power plants, reducing or eliminating construction of new coal-fired power plants in the United States and certain other countries, increased costs to mine coal and decreased demand and prices for steam coal.
There are three important sources of GHGs associated with the coal industry: first, the end use of our coal by our customers in electricity generation, coke plants, and steelmaking is a source of GHGs; second, combustion of fuel for mining equipment used in coal production; and third, coal mining can release methane, a GHG, directly into the atmosphere. GHG emissions from coal consumption and production are subject to pending and proposed regulation as part of initiatives to address global climate change.
The Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (the “Kyoto Protocol”) became effective in 2005, and bound those developed countries that ratified it (which the U.S. did not do) to reduce their global GHG emissions. In December 2015, the United States and almost 200 nations agreed to the Paris Agreement, which entered into force on November 4, 2016 and has the long-term goal to limit global warming to below two degrees Celsius by 2100 from temperatures in the pre-industrial era. Although this agreement does not create any binding obligations for nations to limit their GHG emissions, it does include pledges to voluntarily limit or reduce future emissions. On June 1, 2017, the Trump administration announced that the U.S. will withdraw from the Paris Agreement. Nevertheless, numerous U.S. governors, mayors and businesses have pledged their commitments to the goals of the Paris Agreement. These commitments could further reduce demand and prices for our coal.

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In 2009, the EPA issued a finding that emissions of carbon dioxide, methane and other GHGs present an endangerment to public health and the environment. The EPA has since adopted regulations under existing provisions of the CAA pursuant to this finding. For example, the EPA has adopted rules requiring the monitoring and reporting of GHG emissions from specified large GHG emission sources in the U.S., including coal-fired electric power plants and steel-making operations. The EPA has also promulgated the Tailoring Rule, which requires that all new or modified stationary sources of GHGs that will emit more than 75,000 tons of carbon dioxide per year and are otherwise subject to CAA regulation, and any other facilities that will emit more than 100,000 tons of carbon dioxide per year, to undergo prevention of significant deterioration (“PSD”) permitting, which requires that the permitted entity adopt the best available control technology.
In June 2014, the U.S. Supreme Court addressed whether the EPA’s regulation of GHG emissions from new motor vehicles properly triggered GHG permitting requirements for stationary sources under the CAA as well as the validity of the Tailoring Rule under the CAA. The decision reversed, in part, and affirmed, in part, a 2012 D.C. Circuit decision that upheld the Tailoring Rule. Specifically, the Court held that the EPA exceeded its statutory authority when it interpreted the CAA to require PSD and Title V permitting for stationary sources based on their potential GHG emissions. However, the Court also held that the EPA’s determination that a source already subject to the PSD program due to its emission of conventional pollutants may be required to limit its GHG emissions by employing the “best available control technology” was permissible. As a result, the EPA is now requiring new sources already subject to the PSD program, including coal-fired power plants, to undergo control technology reviews for GHGs (predominately carbon dioxide) as a condition of permit issuance. These reviews may impose limits on GHG emissions, or otherwise be used to compel consideration of alternative fuels and generation systems, as well as increase litigation risk for—and so discourage development of—coal-fired power plants.
On August 3, 2015, the EPA released a final rule establishing NSPS for emissions of carbon dioxide for new, modified and reconstructed fossil fuel-fired electric generating units (“Power Plant NSPS”). The final rule requires that newly-constructed fossil fuel-fired steam generating units achieve an emission standard for carbon dioxide of 1,400 lb CO 2 /MWh-gross. The standard is based on the performance of a supercritical pulverized coal boiler implementing partial carbon capture and storage (CCS). Modified and reconstructed fossil fuel fired steam generating units must implement the most efficient generation achievable through a combination of best operating practices and equipment upgrades, to meet an emission standard consistent with best historical performance.
Reconstructed units must implement the most efficient generating technology based on the size of the unit (supercritical steam conditions for larger units, to meet a standard of 1,800 lb CO 2 /MWh-gross, and subcritical conditions for smaller units to meet a standard of 2,000 lb CO 2 /MWh-gross). Numerous legal challenges to the final rule are currently pending. There is a risk that CCS technology may not be commercially practical in limiting emissions as otherwise required by the rule or similar rules that may be proposed in the future. If such legislative or regulatory programs are adopted or maintained, and economic, commercially available carbon capture technology for power plants is not developed or adopted in a timely manner, it would negatively affect our customers and would further reduce the demand for coal as a fuel source, causing coal prices and sales of our coal to decline, perhaps materially.
In August 2015, the EPA issued the CPP, a final rule that establishes carbon pollution standards for existing power plants, called CO 2 emission performance rates. The EPA expected each state to develop implementation plans for power plants in its state to meet the individual state targets established in the CPP. The EPA gave states the option to develop compliance plans for annual rate-based reductions (pounds per megawatt hour) or mass-based tonnage limits for CO 2 . The state plans were to be due in September 2016, subject to potential extensions of up to two years for final plan submission. Under the current rule, the compliance period begins in 2022, and emission reductions will be phased in up to 2030. The EPA also proposed a federal compliance plan to implement the CPP in the event that an approvable state plan is not submitted to the EPA. Judicial challenges have been filed. On February 9, 2016, the U.S. Supreme Court granted a stay of the implementation of the CPP before the D.C. Circuit even issued a decision. By its terms, this stay will remain in effect throughout the pendency of the appeals process including at the D.C. Circuit Court and the Supreme Court through the denial of any certiorari petition or a decision, if the petition is granted. The stay suspends the rule, including the requirement that states submit their initial plans by September 2016. The Supreme Court’s stay applies only to the CPP and does not affect the Power Plant NSPS.
President Trump’s March 2017 Executive Order directed the EPA to review the Power Plant NSPS and the CPP and, if appropriate, take steps to suspend, revise or rescind the rules through the rulemaking process to ensure consistency with the goals of energy independence, economic growth and cost-effective environmental regulation. On April 4, 2017, the EPA announced in the Federal Register that it is initiating its review of the Power Plant NSPS and CPP. On April 28, 2017, the

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D.C. Circuit paused legal challenges to both the CPP and the Power Plant NSPS for 60 days to allow parties in each of those cases to brief the court on whether the case should be remanded to the agency or kept on hold, and in a series of orders since, has continued to hold the cases in abeyance while EPA rulemaking regarding CPP continues. In October 2017, EPA issued a proposed rule to rescind the CPP, and in December 2017, EPA published an Advanced Notice of Proposed Rulemaking announcing an intent to commence a new rulemaking to replace the CPP with an alternative. The period for comment closed in April 2018. On July 9, 2018, the EPA sent a draft notice of proposed rulemaking to the White House Office of Management and Budget for review which will need to undergo a public comment period before being finalized. The outcome of these rulemakings is uncertain and likely to be subject to extensive notice and comment and litigation. More stringent standards for carbon dioxide emissions as a result of these rulemakings could further reduce demand for coal, and our business would be adversely impacted.
Various states and regions have adopted GHG initiatives and certain governmental bodies, including the State of California, have or are considering the imposition of fees or taxes based on the emission of GHGs by certain facilities. A number of states have enacted legislative mandates requiring electricity suppliers to use renewable energy sources to generate a certain percentage of power.
In addition, certain banks and other financing sources have taken actions to limit available financing for the development of new coal-fueled power plants, which also may adversely impact the future global demand for coal. Further, there have been recent efforts by members of the general financial and investment communities, such as investment advisors, sovereign wealth funds, public pension funds, universities and other groups, to divest themselves and to promote the divestment of securities issued by companies involved in the fossil fuel extraction market, such as coal producers. Those entities also have been pressuring lenders to limit financing available to such companies. These efforts may adversely affect the market for our securities and our ability to access capital and financial markets in the future.
Furthermore, several well-funded non-governmental organizations have explicitly undertaken campaigns to minimize or eliminate the use of coal as a source of electricity generation. These efforts, as well as concerted conservation and efficiency efforts that result in reduced electricity consumption, could cause coal prices and sales of our coal to materially decline and possibly increase our costs to mine federally owned coal.
These and other current or future global climate change laws, regulations, court orders or other legally enforceable mechanisms, or related public perceptions regarding climate change, are expected to require additional controls on coal-fired power plants and industrial boilers and may cause some users of coal to further switch from coal to alternative sources of fuel, thereby depressing demand and pricing for coal.
Clean Water Act
The CWA and corresponding state and local laws and regulations affect coal mining operations by restricting the discharge of pollutants, including dredged or fill materials, into waters of the U.S. The CWA provisions and associated state and federal regulations are complex and subject to amendments, legal challenges and changes in implementation. Legislation that seeks to clarify the scope of CWA jurisdiction has also been considered by Congress. Recent court decisions, regulatory actions and proposed legislation have created uncertainty over CWA jurisdiction and permitting requirements.
CWA requirements that may directly or indirectly affect our operations include the following:
Wastewater Discharge
Prior to discharging any pollutants into waters of the United States, coal mining companies must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit from the appropriate state or federal permitting authority. Section 402 of the CWA creates a process for establishing effluent limitations for discharges to streams that are protective of water quality standards through the NPDES program, and corresponding programs implemented by state regulatory agencies. Regular monitoring, reporting and compliance with performance standards are preconditions for the issuance and renewal of NPDES permits that govern discharges into waters of the U.S. Failure to comply with the CWA or NPDES permits can lead to the imposition of significant penalties, litigation, compliance costs and delays in coal production. Furthermore, the imposition of future restrictions on the discharge of certain pollutants into waters of the U.S. could increase the difficulty of obtaining and complying with NPDES permits, which could impose additional time and cost burdens on our operations. For instance, waters that states have designated as impaired (i.e., as not meeting present water quality standards) are subject to

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Total Maximum Daily Load regulations, which may lead to the adoption of more stringent discharge standards for our coal mines and could require more costly treatment.
In addition, when water quality in a receiving stream is of high quality, states are required to conduct an anti- degradation review before approving discharge permits. Anti-degradation policies may increase the cost, time and difficulty associated with obtaining and complying with NPDES permits and may also require more costly treatment.
On March 5, 2014, EPA, the U.S. Department of Justice, West Virginia Department of Environmental Protection, the Pennsylvania Department of Environmental Protection and the Kentucky Energy and Environment Cabinet filed a Complaint against Old Alpha and its permit holding subsidiaries in Kentucky, Pennsylvania, Tennessee, Virginia and West Virginia alleging that Old Alpha’s mining affiliates in those states and in Tennessee and Virginia exceeded certain water discharge permit limits during the period of 2006 to 2013 and simultaneously entered into a Consent Decree with Alpha resolving their claims. The Consent Decree was entered by the Southern District of West Virginia on November 26, 2014 and amended on February 28, 2018 (the “Alpha Consent Decree”). As part of the Alpha Consent Decree, Alpha agreed to implement an integrated environmental management system and an expanded auditing/reporting protocol, install selenium and osmotic pressure treatment facilities at specific locations, and certain other measures. The Alpha Consent Decree required Alpha to pay $27.5 million in civil penalties, to be divided among the federal government and state agencies. Alpha has constructed all required water treatment systems, implemented the environmental management system, and otherwise complied with the terms and conditions of the Alpha Consent Decree. Pursuant to the Stipulation, among other things, one or more subsidiaries of Contura assumed the Section IX Osmotic Pressure Injunctive Relief requirements under the Alpha Consent Decree at the Cumberland and Emerald mines from Alpha, and such Contura subsidiaries may serve a request for termination of the Alpha Consent Decree only after completing such requirements and thereafter maintaining consistent satisfactory compliance with the Consent Decree for a period of two years. Two of our subsidiaries have formally joined in the Alpha Consent Decree to confirm our obligations as set forth in the Stipulation. Alpha remains subject to the other requirements of the Alpha Consent Decree and pays stipulated penalties to the United States federal government and the state of West Virginia when water discharge permit limitations are exceeded. Since July 26, 2016, we and Alpha have been and are currently in material compliance with our obligations under the Stipulation.
Dredge and Fill Permits
Many mining activities, including the development of settling ponds, including the construction of some sediment control structures, valley fills and surface impoundments, require permits from the COE under Section 404 of the CWA. Generally speaking, these Section 404 permits allow the placement of dredge and fill materials into navigable waters of the U.S. including wetlands, streams, and other regulated areas. The COE has issued general “nationwide” permits for specific categories of activities that are similar in nature and that are determined to have minimal adverse effects on the environment. Permits issued pursuant to Nationwide Permits 5, 21, 49 and 50 generally authorize the disposal of dredged or fill material from surface coal mining activities into waters of the U.S., subject to certain restrictions. Nationwide Permits are typically reissued for a five-year period and require appropriate mitigation, and permit holders must receive explicit authorization from the COE before proceeding with proposed mining activities. The COE reauthorized use of nationwide permits for surface and underground coal mines in January 2017. Expansion of our mining operations into new areas may trigger the need for individual COE approvals which could be more costly and take more time to obtain.
In June 2015, the EPA and the COE published a new, more expansive, definition of “waters of the United States,” now known as the Clean Water Rule (“CWR”) under the CWA. The CWR is the subject of extensive ongoing litigation and administrative proceedings and its current and future impact on our operations are the subject of significant uncertainty. The U.S. Court of Appeals for the Sixth Circuit has stayed the CWR nationwide pending further action of the court. In response to this decision, the EPA and the COE resumed nationwide use of the agencies’ prior regulations defining the term “waters of the United States.” On January 22, 2018, the Supreme Court reversed the Sixth Circuit's decision, ruling that jurisdiction over challenges to the CWR rests with the federal district courts and not with the appellate courts, which was followed by the dissolution of the stay by the Sixth Circuit. On February 6, 2018, the EPA and COE published a rule that delayed applicability of the CWR for two years. However, on August 16, 2018, the federal court in South Carolina enjoined the rule, effectively reinstating the CWR in Virginia and Pennsylvania (where we have operations) and in 24 other states. The injunction is being challenged on appeal. However, our West Virginia operations remain unaffected by the CWR, due to separate injunctions issued by federal courts in Georgia and North Dakota applicable to West Virginia and 23 other states. On February 28, 2017, while challenges to the CWR were pending, President Trump signed an executive order directing the EPA

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and the COE to review the CWR for consistency with the goals of “promoting economic growth and minimizing regulatory uncertainty” and to consider a new rule that reflects Justice Scalia’s plurality opinion in the 2006 Supreme Court decision, Rapanos v. United States , that CWA jurisdiction attaches only to “navigable waters” and other waters with a relatively permanent flow, such as rivers or lakes. On March 6, 2017, the EPA and the COE published a Notice of Intent to review and rescind or revise the rule. On February 6, 2018, the EPA and the COE published an amendment to the CWR which delays its applicability until February 6, 2020 and on June 29, 2018 the EPA and the COE published a supplemental notice indicating their intention to repeal the CWR and providing a variety of reasons to support such a repeal. The process to undo and replace the CWR will likely be subject to extensive notice and comment and litigation.
Cooling Water Intake
In May 2014, the EPA issued a new final rule pursuant to Section 316(b) of the CWA that affects the cooling water intake structures at power plants in order to reduce fish impingement and entrainment. The rule is expected to affect over 500 power plants. These requirements could increase our customers’ costs and may adversely affect the demand for coal, which may materially impact our results or operations.
Effluent Guidelines
On November 3, 2015, the EPA published the final rule for Effluent Limitations Guidelines and Standards, revising the regulations for the Steam Electric Power Generating category which became effective on January 4, 2016. It establishes the first federal limits on the levels of arsenic, mercury, selenium and nitrate-nitrites in flue gas desulfurization that can be discharged as wastewater from power plants, based on technology improvements over the last three decades. On April 25, 2017 the EPA stayed the implementation of the rule indefinitely to allow for reconsideration. This stay is the subject of legal challenges.
Endangered Species Act
The ESA and counterpart state legislation protect species threatened with possible extinction. Protection of threatened and endangered species may have the effect of prohibiting or delaying us from obtaining mining permits and mine plan modifications and approvals, and may include restrictions on timber harvesting, road building and other mining activities in areas containing the affected species or their habitats. We may also need to obtain additional permits or approvals if the incidental take of these species in the course of otherwise lawful activity may occur, which could take more time, be more costly and have adverse effects on operations. A number of species indigenous to properties we control or surrounding areas are protected under the ESA. Certain other sensitive species which are not currently protected by the ESA may also require protection and mitigation efforts consistent with federal and state requirements.
Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act (“RCRA”) affects coal mining operations by establishing requirements for the treatment, storage, and disposal of hazardous wastes. The EPA determined that coal combustion residuals (“CCR”) do not warrant regulation as hazardous wastes under RCRA in May 2000. Most state hazardous waste laws do not regulate CCR as hazardous wastes. The EPA also concluded that beneficial uses of CCR, other than for mine filling, pose no significant risk and no additional national regulations of such beneficial uses are needed. However, the EPA determined that national non-hazardous waste regulations under RCRA are warranted for certain wastes generated from coal combustion, such as coal ash, when the wastes are disposed of in surface impoundments or landfills or used as minefill. In December 2014, the EPA finalized regulations that address the management of coal ash as a non-hazardous solid waste under Subtitle D. The rules impose engineering, structural and siting standards on surface impoundments and landfills that hold coal combustion wastes and mandate regular inspections. The rule also requires fugitive dust controls and imposes various monitoring, cleanup, and closure requirements. In July 2018, the EPA published a final rule extending certain deadlines under original rules, granting certain authority to states with authorized CCR programs and establishing groundwater protection standards for certain constituents. EPA plans additional rulemaking relating to CCR.
There have also been several legislative proposals that would require the EPA to further regulate the storage of CCR. For example, in December 2016, Congress passed the Water Infrastructure Improvements for the Nation Act, which allows states to establish permit programs to regulate the disposal of CCR units in lieu of the EPA’s CCR regulations. These requirements,

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as well as any future changes in the management of CCR, could increase our customers’ operating costs and potentially reduce their ability or need to purchase coal. In addition, contamination caused by the past disposal of CCR, including coal ash, can lead to material liability for our customers under RCRA or other federal or state laws and potentially further reduce the demand for coal.
Comprehensive Environmental Response, Compensation and Liability Act
The Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and similar state laws affect coal mining operations by, among other things, imposing cleanup requirements for threatened or actual releases of hazardous substances into the environment. Under CERCLA and similar state laws, joint and several liability may be imposed on hazardous substance generators, site owners, transporters, lessees and others regardless of fault or the legality of the original disposal activity. Although the EPA currently excludes most wastes generated by coal mining and processing operations from the primary hazardous waste laws. The disposal, release or spilling of some products used by coal companies in operations, such as chemicals, could trigger the liability provisions of CERCLA or similar state laws. Thus, we may be subject to liability under CERCLA and similar state laws for our current or former owned, leased or operated coal mines and property or those of our predecessors. We may be liable under CERCLA or similar state laws for the cleanup of hazardous substance contamination and natural resource damages at sites where we control surface rights. These liabilities could be significant and materially and adversely impact our financial results and liquidity.
Use of Explosives. Our surface mining operations are subject to numerous regulations relating to blasting activities. Pursuant to these regulations, we incur costs to design and implement blast schedules and to conduct pre- blast surveys and blast monitoring. In addition, the storage of explosives is subject to regulatory requirements. For example, pursuant to a rule issued by the Department of Homeland Security in 2007, facilities in possession of chemicals of interest (including ammonium nitrate at certain threshold levels) are required to complete a screening review. In 2011, the Department of Homeland Security published proposed regulations of ammonium nitrate under the Ammonium Nitrate Security Rule. Many of the requirements of the proposed regulations would be duplicative of those in place under the Bureau of Alcohol Tobacco and Firearms, including registration and background checks.
Additional requirements may include tracking and verifications for each transaction related to ammonium nitrate. A final rule has yet to be issued. In December 2014, the OSM announced its decision to pursue a rulemaking to revise regulations under SMCRA which will address all blast generated fumes and toxic gases. OSM has not yet issued a proposed rule to address these blasts. The outcome of these rulemakings could materially adversely impact our cost or ability to conduct our mining operations.
Other Environmental Laws
We are required to comply with numerous other federal, state and local environmental laws and regulations in addition to those previously discussed. These additional laws include, for example, the Safe Drinking Water Act, and the Toxic Substances Control Act and transportation laws adopted to ensure the appropriate transportation of our coal both nationally and internationally. Laws, regulations, and treaties of other countries may also adversely impact our export sales by reducing demand for our coal as a source of power generation in those countries.
Federal and State Nuclear Material Regulations
Many of our operations use equipment with radioactive sources primarily for coal density measurement. Use of this equipment must be approved by the U. S. Nuclear Regulatory Authority or the State agency that has been delegated this authority.
Mine Safety and Health
Stringent health and safety standards have been in effect since Congress enacted the Coal Mine Health and Safety Act of 1969. The Federal Mine Safety and Health Act of 1977 (“Mine Act”) significantly expanded the enforcement of safety and health standards and imposed safety and health standards on all aspects of mining operations. All of the states in which we operate also have state programs for mine safety and health regulation and enforcement. Collectively, federal and state safety and health regulation in the coal mining industry is among the most comprehensive and pervasive systems for protection of

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employee health and safety affecting any segment of U.S. industry. The Mine Act is a strict liability statute that requires mandatory inspections of surface and underground coal mines and requires the issuance of enforcement action when it is believed that a standard has been violated. While this regulation has a significant effect on our operating costs, our U.S. competitors are subject to the same degree of regulation.
In 2006, in response to underground mine accidents, Congress enacted the Mine Improvement and New Emergency Response Act (the “MINER Act”). The MINER Act significantly amended the Mine Act, requiring, among other items, improvements in mine safety practices, increasing criminal penalties and establishing a maximum civil penalty for non-compliance, and expanding the scope of federal oversight, inspection and enforcement activities. Since passage of the MINER Act enforcement scrutiny has increased, including more inspection hours at mine sites, increased numbers of inspections and increased issuance of the number and severity of enforcement actions and related penalties. Various states also have enacted their own new laws and regulations addressing many of these same subjects. MSHA continues to interpret and implement various provisions of the MINER Act, along with introducing new proposed regulations and standards. For example, the second phase of MSHA’s respirable coal mine dust rule went into effect in February 2016 and requires increased sampling frequency and the use of continuous personal dust monitors. In August 2016, the third and final phase of the rule became effective, reducing the overall respirable dust standard in coal mines from 2.0 to 1.5 milligrams per cubic meter of air. Our compliance with these or any other new mine health and safety regulations could increase our mining costs. If we were found to be in violation of these regulations we could face penalties or restrictions that may materially and adversely affect impact our operations, financial results and liquidity. Under the Black Lung Benefits Revenue Act of 1977 and the Black Lung Benefits Reform Act of 1977, as amended in 1981, each coal mine operator must secure payment of federal black lung benefits to claimants who are current and former employees and to a trust fund for the payment of benefits and medical expenses to claimants who last worked in the coal industry prior to July 1, 1973. The trust fund is funded by an excise tax on production of up to $1.10 per ton for deep-mined coal and up to $0.55 per ton for surface-mined coal, neither amount to exceed 4.4% of the gross sales price. The excise tax does not apply to coal shipped outside the United States. For the fiscal year ended December 31, 2017 and the six months ended June 30, 2018, Contura recorded $7.7 million and $2.6 million, respectively, of expense related to this excise tax. For the fiscal year ended December 31, 2017 and the six months ended June 30, 2018, Alpha recorded $6.4 million and $3.0 million, respectively, of expense related to this excise tax.
The Patient Protection and Affordable Care Act introduced significant changes to the federal black lung program, including an automatic survivor benefit paid upon the death of a miner with an awarded black lung claim, and established a rebuttable presumption with regard to pneumoconiosis among miners with 15 or more years of coal mine employment that are totally disabled by a respiratory condition. These changes could have a material impact on our costs expended in association with the federal black lung program. For former mining employees meeting statutory eligibility standards for Federal Black Lung benefits, we maintain insurance coverage sufficient to cover the cost of present and future claims. We may also be liable under state laws for black lung claims that are covered through insurance policies.
Coal Industry Retiree Health Benefit Act of 1992
Unlike many companies in the coal business, we do not have any liability under the Coal Industry Retiree Health Benefit Act of 1992 (the “Coal Act”), which requires the payment of substantial sums to provide lifetime health benefits to union-represented miners (and their dependents) who retired before 1992, because liabilities under the Coal Act that had been imposed on Alpha were settled in the bankruptcy process.

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF CONTURA
The following discussion and analysis of Contura provides a narrative of our results of operations and financial condition for the six months ended June 30, 2018 and 2017 (Successor), the year ended December 31, 2017 (Successor) and the period from July 26, 2016 to December 31, 2016 (Successor), and on a carve-out basis for the period from January 1, 2016 to July 25, 2016 (Predecessor) and the year ended December 31, 2015 (Predecessor). You should read the following discussion of our results of operations and financial condition in conjunction with the accompanying audited and unaudited Successor consolidated financial statements and Predecessor combined financial statements and the related notes, our “Unaudited Pro Forma Condensed Combined Statement of Operations,” and “Selected Consolidated and Combined Historical Financial Data” included elsewhere in this joint proxy statement and prospectus. See Note 1 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for further disclosures on the basis of presentation, as the Predecessor periods presented herein include the assets, liabilities, operating results and cash flows of Contura, prepared on a carve-out basis using Alpha Natural Resources, Inc.’s (“Old Alpha”) historical bases in the assets and liabilities and the historical results of operations of Contura. Unless otherwise indicated or the context otherwise requires, references in this “Management's Discussion and Analysis of Financial Condition and Results of Operations of Contura” section to “Contura,” the “Company,” “we,” “us” and other similar terms refer to Contura Energy, Inc. and its consolidated subsidiaries without giving effect to the mergers.
Non-GAAP Financial Measures
The discussion below contains “non-GAAP financial measures.” These are financial measures which either exclude or include amounts that are not excluded or included in the most directly comparable measures calculated and presented in accordance with generally accepted accounting principles in the United States (“GAAP”). Specifically, we make use of the non-GAAP financial measure “Adjusted EBITDA.” Adjusted EBITDA does not purport to be an alternative to net income (loss) as a measure of operating performance. The presentation of this measure should not be considered in isolation, or as a substitute for analysis of our results as reported under GAAP.
Management uses non-GAAP financial measures to supplement GAAP results to provide a more complete understanding of the factors and trends affecting the business than GAAP results alone. Because not all companies use identical calculations, the presentations of these measures may not be comparable to other similarly titled measures of other companies and can differ significantly from company to company depending on long-term strategic decisions regarding capital structure, the tax jurisdictions in which companies operate, and capital investments.
Formation
On August 3, 2015, Old Alpha filed voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Virginia. Old Alpha pursued a reorganization plan under which certain expenses were incurred and settlements negotiated. The Bankruptcy Court approved Alpha’s Plan of Reorganization on July 7, 2016 and Alpha emerged from bankruptcy on July 26, 2016.
Contura was incorporated in the State of Delaware on June 10, 2016 to acquire and operate certain of Old Alpha’s core coal operations, as part of the Alpha Restructuring. On July 26, 2016, a consortium of former Old Alpha creditors acquired our common stock in exchange for a partial release of their creditor claims pursuant to the Alpha Restructuring. Furthermore, pursuant to an asset purchase agreement between Contura and Old Alpha, we purchased certain former core coal operations of Old Alpha. See Note 3 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for information related to the Acquisition (defined below).
Overview
We are a large-scale provider of met and steam coal to a global customer base, operating high-quality, cost-competitive coal mines across two major U.S. coal basins (CAPP and NAPP) along with a Trading and Logistics business. Our operations consist of nine active mines and four coal preparation and load-out facilities, with approximately 1,750 employees. We produce, process and sell steam coal and met coal from operations located in Virginia, West Virginia and Pennsylvania. We also sell coal produced by others, some of which is processed and/or blended with coal produced from our mines prior to

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resale, with the remainder purchased for resale by our trading operations. As of December 31, 2017, we had 742.7 million tons of reserves, including 491.3 million tons of proven reserves and 251.4 million tons of probable reserves.
We began operations on July 26, 2016, with mining complexes in NAPP (including the Cumberland mine complex), the PRB (the Belle Ayr and Eagle Butte complexes), and three CAPP mining complexes (the Nicholas mine complex in Nicholas County, West Virginia, and the McClure and Toms Creek mine complexes in Virginia). We also acquired Old Alpha’s 40.6% interest in the DTA coal export terminal in eastern Virginia, and on March 31, 2017, we acquired a portion of another partner’s ownership stake and increased our interest to 65.0%. Through the Acquisition, Contura acquired a significant reserve base. On December 8, 2017, the Company closed a transaction to sell the Eagle Butte and Belle Ayr mines located in the PRB, Wyoming, along with related coal reserves, equipment, infrastructure and other real properties. The PRB results of operations and financial position are reported as discontinued operations in the financial statements. The historical information in the accompanying Notes to the financial statements has been restated to reflect the effects of the PRB operations being reported as discontinued operations in the financial statements. See Note 4 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for further information on discontinued operations.
For the six months ended June 30, 2018 and 2017, sales of steam coal were 2.7 million tons and 4.0 million tons, respectively, and accounted for approximately 33% and 47%, respectively, of our coal sales volume and sales of met coal, which generally sells at a premium over steam coal, were 5.5 million tons and 4.5 million tons, respectively, and accounted for approximately 67% and 53%, respectively, of our coal sales volume. For the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 sales of steam coal were 6.7 million tons and 2.7 million tons, respectively, and accounted for approximately 43% and 47%, respectively, of our coal sales volume and sales of met coal, which generally sells at a premium over steam coal, were 8.9 million tons and 3.1 million tons, respectively, and accounted for approximately 57% and 53%, respectively, of our coal sales volume. For the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 sales of steam coal were 4.4 million tons and 8.2 million tons, respectively, and accounted for approximately 63% and 60%, respectively, of our coal sales volume and sales of met coal, which generally sells at a premium over steam coal, were 2.6 million tons and 5.5 million tons, respectively, and accounted for approximately 37% and 40%, respectively, of our coal sales volume. These numbers include sales from our Trading and Logistics business.
Our sales of steam coal during the Successor and Predecessor periods were made primarily to large utilities and industrial customers throughout the U.S., and our sales of met coal were made primarily to steel companies in the northeastern and midwestern regions of the U.S. and in several countries in Europe, Asia and the Americas. For the six months ended June 30, 2018 and 2017, approximately 88% and 76%, respectively, of our total coal revenues, including freight and handling revenues, were derived from coal sales made to customers outside the United States. For the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 approximately 74% and 68%, respectively, of our total coal revenues, excluding freight and handling revenues, were derived from coal sales made to customers outside the United States. For the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 approximately 31% and 31%, respectively, of our total coal revenues, excluding freight and handling revenues, were derived from coal sales made to customers outside the United States.
In addition, we generate other revenues from equipment sales, rentals, terminal and processing fees, coal and environmental analysis fees, royalties and the sale of natural gas. We also record freight and handling fulfillment revenue within coal revenues for freight and handling services provided in delivering coal to certain customers, which are a component of the contractual selling price.
Our primary expenses are operating supply costs, repair and maintenance expenditures, cost of purchased coal, royalties, wages and benefits, post-employment benefits, freight and handling costs, and taxes incurred in selling our coal. Historically, our cost of coal sales per ton is lower for sales of our produced and processed coal than for sales of purchased coal that we do not process prior to resale.
We have three reportable segments: CAPP Operations, NAPP Operations and Trading and Logistics Operations. CAPP consists of eight active mines, including three mines in Virginia operated by third-party contractors, four mines operated by us in Virginia and one mine operated by us in West Virginia. CAPP Operations also include two preparation plants in Virginia, one preparation plant in West Virginia, as well as expenses associated with certain closed mines. NAPP consists of one active mine in Pennsylvania and one preparation plant, as well as expenses associated with one closed mine. The Trading

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and Logistics segment focuses primarily on coal trading and coal terminal facility services. Our All Other category includes general corporate overhead and corporate assets and liabilities, the elimination of certain intercompany activity and our discontinued operations.
Business Developments
Powder River Basin Transaction
On December 8, 2017, we closed a transaction with Blackjewel L.L.C. (“Buyer” and “Blackjewel”) to sell the Eagle Butte and Belle Ayr mines located in the Power River Basin (“PRB”). If the permit transfer process is not completed as expected, it could have material, adverse effects on us. During the permit transfer period, we will maintain the required reclamation bonds and related collateral. Per the terms of the asset purchase agreement, as promptly as practicable after closing, the Buyer shall use its best efforts to replace our reclamation performance bonds and collateral bonds relating to the purchased permits. The Buyer shall use its best efforts to obtain third party financing to replace our collateral as promptly as practicable following the closing, and the Buyer shall be obligated to replace our collateral upon the earlier of (i) with respect to all our bonds, receipt of the Buyer’s refinancing and (ii) with respect to each of our bonds, within two days of notice from any governmental agency that the Buyer’s bonds are required to advance the permit transfer process. If at this time, our bonds remain outstanding, the full amount of our collateral shall be immediately due and payable to us by the Buyer, and such amount shall accrue interest at a rate of 6% per annum, compounding annually (the “Collateral Replacement Payment”). To secure the Buyer’s obligation to make the Collateral Replacement Payment, the Buyer granted the Company a security interest in all Purchased Assets that constitute mobile equipment, including without limitation, shovels, vehicles and drills, subject to certain exclusions. We will not bear the financial burden of further processing or posting of additional bonds or other collateral for any transfer of the permits. Once the permits have been transferred, we estimate approximately $12.6 million comprised of short-term restricted cash and short-term deposits will be returned to operating cash.
The PRB operations results of operations and financial position are reported as discontinued operations in the financial statements. The historical information in the accompanying Notes to the financial statements has been restated to reflect the effects of the PRB operations being reported as discontinued operations in the financial statements. The discontinued operations include our former PRB segment. To conform with the financial statements and accompanying Notes, the former PRB segment information for the discontinued operation has been eliminated. See Note 4 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for further information on discontinued operations. The following tables summarize certain financial information relating to the PRB discontinued operating results which are reported within the All Other segment that have been derived from our financial statements for the six months ended June 30, 2018 and 2017.
Revenues
 
Successor
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
Coal revenues:
 
 
 
 
 
 
 
Steam
$
—

 
$
168,764

 
$
(168,764
)
 
(100.0
)%
Tons sold:
 
 
 
 


 


Steam
—

 
15,498

 
(15,498
)
 
(100.0
)%
Coal sales realization per ton:
 
 
 
 


 


Steam
$
—

 
$
10.89

 
$
(10.89
)
 
(100.0
)%

198


 
Successor
 
Predecessor
(In thousands, except for per ton data)
Year Ended December 31, 2017
 
% of Total Revenues
 
Period from
July 26, 2016 to December 31, 2016
 
% of Total Revenues
 
Period from
January 1, 2016 to July 25, 2016
 
% of Total Revenues
 
Year Ended
December 31, 2015
 
% of Total Revenues
Coal revenues:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Steam
$
339,599

 
20.6
%
 
$
180,555

 
35.7
%
 
$
192,629

 
46.9
%
 
$
427,680

 
46.2
%
Tons sold:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Steam
31,102

 
 
 
16,674

 
 
 
17,225

 
 
 
37,971

 
 
Coal sales realization per ton:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Steam
$
10.92

 
 
 
$
10.83

 
 
 
$
11.18

 
 
 
$
11.26

 
 
Costs and Expenses
 
Successor
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
Cost of coal sales:
$
—

 
$
157,470

 
$
(157,470
)
 
(100.0
)%
Tons sold:
—

 
15,498

 
(15,498
)
 
(100.0
)%
Cost of coal sales per ton:
$
—

 
$
10.16

 
$
(10.16
)
 
(100.0
)%
Coal margin per ton (1) :
$
—

 
$
0.73

 
$
(0.73
)
 
(100.0
)%
 
Successor
 
Predecessor
(In thousands, except for per ton data)
Year Ended December 31, 2017
 
% of Total Revenues
 
Period from
July 26, 2016 to December 31, 2016
 
% of Total Revenues
 
Period from January 1, 2016 to July 25, 2016
 
% of Total Revenues
 
Year Ended
December 31, 2015
 
% of Total Revenues
Cost of coal sales:
$
311,119

 
18.9
%
 
$
140,803

 
27.8
%
 
$
164,920

 
40.1
%
 
$
375,234

 
40.5
%
Tons sold:
31,102

 
 
 
16,674

 
 
 
17,225

 
 
 
37,971

 
 
Cost of coal sales per ton:
$
10.00

 
 
 
$
8.44

 
 
 
$
9.57

 
 
 
$
9.88

 
 
Coal margin per ton (1) :
$
0.92

 
 
 
$
2.39

 
 
 
$
1.61

 
 
 
$
1.38

 
 
______________
(1)
Coal margin per ton is calculated as coal sales realization per ton less cost of coal sales per ton for our reportable segments.

Per terms of the asset purchase agreement, we entered into an agreement with the Buyer under which the Buyer will supply, deliver and sell to us, and we will accept, purchase and pay for, all coal we are obligated to supply, deliver and sell under PRB coal supply agreements (“CSAs”) existing as of the transaction closing date that did not transfer to the Buyer at closing (each, a “Back-to-Back Coal Supply Agreement”). Each Back-to-Back Coal Supply Agreement shall have economic terms identical to, but offsetting, the CSA associated with such Back-to-Back Coal Supply Agreement. If a PRB customer subsequently consents to assign a CSA after closing, then the related CSA shall immediately and automatically transfer to Buyer and the related Back-to-Back Coal Supply Agreements executed by the parties shall thereupon terminate as set forth therein. Per terms of the Back-to-Back Coal Supply Agreements, we are required to purchase and sell coal in the remainder of 2018, 2019, and 2020 totaling $11.5 million $16.1 million, and $9.2 million, respectively. For the six months ended June 30, 2018 , we purchased and sold 4.7 million tons, totaling $50.3 million, under the Back-to-Back Coal Supply Agreements. For the period ended December 31, 2017, we purchased and sold 2.0 million tons, totaling $21.7 million, under the Back-to-Back Coal Supply Agreements.
During the third quarter of 2018, Blackjewel L.L.C. (“Blackjewel”) procured surety bonds for a total of $221.0 million to facilitate the transfer of record by the State of Wyoming of the Belle Ayr and Eagle Butte mine permits from Contura Coal

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West, LLC to Blackjewel as required by that certain Asset Purchase Agreement dated as of December 7, 2017, among Blackjewel, Contura Energy, Inc. (“Contura”), Contura Coal West, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, and Contura Energy Services, LLC.
Contura has agreed to backstop a portion of Blackjewel’s bonding obligations with respect to the Belle Ayr and Eagle Butte permits by entering into secondary general indemnification agreements and providing letters of credit to the sureties as collateral for Contura’s indemnification obligations. This arrangement provides cost reimbursement for the issuing sureties. Indemnity bonds will be issued by a third-party insurer in favor of Contura to insure Blackjewel’s performance obligations to Contura with respect to cancellation of the general indemnification agreements and return of the letters of credit.
Blackjewel has agreed that, by June 30, 2019, it will (i) enter into financing arrangements of an as yet to be determined amount to be held as collateral by the sureties and (ii) cause each surety to release and return each letter of credit and cancel the Contura general indemnification agreements.
Blackjewel’s performance obligations are also collateralized by a security interest in mobile equipment granted to Contura under 8.6(c) of the Asset Purchase Agreement. Further, in connection with this arrangement, approximately $8.0 million in surety cash collateral previously supporting reclamation bonds was returned to Contura by certain of its sureties.
During the third quarter of 2018, we expect to account for the Blackjewel surety bonding arrangement as a guarantee within discontinued operations with no material impact on our financial statements.
Mergers with Alpha Natural Resources Holdings, Inc. and ANR, Inc.
On April 29, 2018, the company and two of its subsidiaries entered into an agreement and plan of merger with Alpha Natural Resources Holdings, Inc. (“Holdings”) and ANR, Inc. (“ANR”, and, together with Holdings, “the Alpha Companies”) (the “Merger Agreement”). Pursuant to the Merger Agreement, two newly-formed subsidiaries of the company will each merge with and into one of Holdings and ANR (the “Mergers”), with Holdings and ANR continuing as the surviving corporations of the Mergers and as wholly owned subsidiaries of the company. As a result of the Mergers and subject to the terms and conditions of the Merger Agreement, each outstanding share of Class C-1 common stock of ANR (“Class C-1 Common Stock”) and each outstanding share of common stock of Holdings (“Holdings Common Stock”) will be converted into the right to receive 0.4071 shares of the company’s common stock. Each outstanding share of Class C-2 common stock of ANR (“Class C-2 Common Stock”) (held exclusively by Holdings) will be canceled in connection with the Mergers. The Mergers are expected to close prior to year-end 2018.
The Merger Agreement and the Mergers have been approved by the boards of directors of ANR and Holdings. Stockholders of ANR and Holdings will be asked to vote to approve the transactions contemplated by the Merger Agreement at special meetings that are expected to be held prior to year-end 2018. The closing of the Mergers is contingent upon approval by the holders of not less than a majority of the outstanding shares of Holdings Common Stock entitled to vote on the Mergers, and approval by the holders of outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock, voting together as a single class, representing a majority of the votes entitled to be cast by all outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock (collectively, “Alpha Stockholder Approval”). Subject to certain limitations set forth in the Merger Agreement, the boards of directors of Holdings and ANR are required to recommend that the stockholders of Holdings and ANR approve the Mergers and related transactions.
The Merger Agreement and the Mergers have been approved by the company’s board of directors. In connection with the Mergers, the company’s board of directors and the holders of a majority of the outstanding shares of company common stock have approved (i) an amendment and restatement of the company’s current certificate of incorporation, primarily to reflect (a) an increase of the number of authorized shares of company common stock (which is necessary to provide the company with sufficient authorized shares to issue as consideration in the Mergers), (b) the adoption of provisions more customary for publicly owned companies and (c) stylistic and other non-substantive changes, (ii) the entry by the company into indemnification agreements with directors and officers of the company and (iii) the company’s 2018 Long-Term Incentive Plan, including the authorization of the company to reserve up to 1,000,000 shares of company common stock for issuance under such plan. The amendment and restatement of the company’s current certificate of incorporation will become effective immediately prior to the closing of the transactions contemplated by the Merger Agreement. The approval of the company’s entry into indemnification agreements with directors and officers of the company is contingent upon, and effective

200


contemporaneously with, the effectiveness of the registration statement on Form S-4 (the “Form S-4”). On July 16, 2018, Contura, along with the Alpha Companies, announced the confidential submission by Contura of the Form S-4 with the SEC.
Effective as of the closing of the Mergers, the size of the company’s board of directors will be expanded to nine directors. Five board seats will be filled by the current company directors and four board seats will be filled by John E. Lushefski, Daniel J. Geiger, David J. Stetson and Harvey L. Tepner (who are each current members of the board of directors of Holdings), unless Messrs. Lushefski, Geiger or Tepner fail to meet applicable independence standards as of the closing, in which case such individual will not be appointed to the company board of directors at closing. If any of Messrs. Lushefski, Geiger, Stetson or Tepner is unable to or has declined to serve on the company board of directors prior to the closing (or is not appointed to the company’s board of directors because he failed to meet applicable independence standards as of the closing), Alpha Holdings may designate a replacement subject to the approval of the company’s board of directors, which cannot be unreasonably withheld (unless such replacement fails to meet applicable independence standards, in which case the company’s board of directors may withhold its approval at its reasonable discretion exercised in good faith). The company has also agreed that following the closing of the Mergers and through the completion of the company’s 2019 annual meeting of stockholders, (i) the size of the company’s board of directors may not be changed except to reduce the size of the board in the event of any resignation or other cessation of service of one or more director and (ii) the company’s board of directors must, subject to its fiduciary duties, nominate for election, unanimously recommend for election and solicit proxies in favor of the election of, each of the Alpha Holdings designees to the company’s board of directors.
The closing of the Mergers is subject to customary closing conditions, including but not limited to (i) expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (such early termination of the applicable waiting period under the HSR Act was received on July 2, 2018), (ii) the receipt of Alpha Stockholder Approval, (iii) the effectiveness of the Form S-4, (iv) listing of the company’s common stock on the New York Stock Exchange (“NYSE”), (v) no more than 10% of the Alpha Companies’ stockholders exercising appraisal rights in connection with the Mergers (disregarding for such purposes any Alpha Companies stockholder who also holds more than 1% of the company’s outstanding common stock at the time of the Alpha Companies’ special meetings) (the “Appraisal Rights Condition”) and (vi) the Alpha Companies obtaining certain third party consents in form and substance reasonably satisfactory to the company.
The company and the Alpha Companies each made customary representations, warranties and covenants in the Merger Agreement, including, among others, covenants by each of the company and the Alpha Companies to, subject to certain exceptions, conduct its business in the ordinary course of business and consistent with past practice. In particular, among other restrictions and subject to certain exceptions, the company agreed to generally refrain from acquiring new businesses, incurring new indebtedness, repurchasing shares or paying dividends, making capital expenditures in excess of budgeted amounts and entering into new material contracts or commitments outside the normal course of business, without the consent of the Alpha Companies, during the period between the execution of the Merger Agreement and the consummation of the Mergers.
The Merger Agreement also contains certain restrictions on the Alpha Companies’ ability to, among other things, (i) directly or indirectly initiate, solicit or knowingly encourage certain acquisition proposals or any inquiry, proposal or offer that may reasonably be expected to lead to such an acquisition proposal, (ii) approve or recommend certain acquisition proposals, or enter into any agreement relating to such an acquisition proposal, or enter into any agreement requiring the Alpha Companies to abandon the transactions under the Merger Agreement or (iii) take any action to exempt any third party from any takeover laws. The foregoing restrictions are subject to exceptions under the Merger Agreement which would apply in the event the board of directors of Holdings or ANR determines in good faith that the failure to take an action would be reasonably likely to be inconsistent with its fiduciary duties and certain other requirements are satisfied. The restrictions described in this paragraph and the Alpha Companies’ related obligations under the Merger Agreement are referred to herein as the “Alpha Non-Solicitation Obligations”.
The Merger Agreement may be terminated by mutual agreement of the parties, or by either party if (i) a final and non-appealable order, decree or ruling has been issued that prohibits the transactions contemplated by the Merger Agreement (unless a breach by such party is the primary cause of the order, decree or ruling), (ii) the Mergers are not consummated on or before the eight-month anniversary of the date of the Merger Agreement (unless a breach of such party is the primary cause of the failure for the closing to occur), (iii) Alpha Stockholder Approval is not obtained at the Alpha Companies’ special meetings (provided that the Alpha Companies may not terminate the agreement in such circumstances if it has breached its

201


obligations in connection with holding such meetings), or (iv) the representations, warranties or covenants of the other party are breached such that there is a failure of the related closing condition (subject to a 30-day cure period).
The Merger Agreement may be terminated by the company if the board of directors of ANR or Holdings changes its recommendation that the stockholders of the Alpha Companies vote in favor of the Mergers or the Alpha Companies have failed to perform in any material respect the Alpha Non-Solicitation Obligations.
The Merger Agreement may be terminated by the Alpha Companies (i) prior to the 25th business day after the date of the Merger Agreement, if the amendment and restatement of the company’s current certificate of incorporation has not been approved by (a) the beneficial owners of a majority of the outstanding shares of company common stock within three business days of the date of the Merger Agreement or (b) the record holders of a majority of the outstanding shares of company common stock within 20 business days of the date of the Merger Agreement (each of such approvals has already been obtained), (ii) if the company has entered into an agreement committing to consummate a transaction that would result in a change of control of the company or (iii) if following the Alpha Companies’ special meetings, the Appraisal Rights Condition has not been satisfied, and the company has not waived such condition within five business days of a written request from the Alpha Companies.
The Alpha Companies are required to pay the company a termination fee of $19.0 million if (i) the company terminates the Merger Agreement because (a) there has been a material breach of the Alpha Non-Solicitation Obligations or (b) the board of directors of Holdings or ANR changes its recommendation that its stockholders vote in favor of the Mergers, (ii) the company or the Alpha Companies terminate the Merger Agreement because the Alpha Companies’ stockholders do not approve the Mergers at the Alpha Companies’ special meetings and the company would have been able to terminate the Merger Agreement in connection with the matters described in clause (i) or (iii) (a) an acquisition proposal meeting certain conditions set forth in the Merger Agreement is made (and not withdrawn) with respect to the Alpha Companies, (b) thereafter (A) the company or the Alpha Companies terminate the Merger Agreement because (x) Alpha Stockholder Approval is not obtained at the Alpha Companies’ special meetings or (y) the transactions contemplated by the Merger Agreement have not been consummated by the eight-month anniversary of the date of the Merger Agreement or (B) the company terminates the Merger Agreement because the representations, warranties or covenants of the Alpha Companies are breached such that there is a failure of the related closing condition and (c) within 12 months after the date of the termination, the Alpha Companies enters into a definitive agreement to consummate an acquisition proposal or consummates any acquisition proposal meeting certain requirements set forth in the Merger Agreement.
The Alpha Companies are also required to reimburse the company for the company’s fees and expenses incurred in connection with the transactions contemplated by the Merger Agreement if the Merger Agreement is terminated because Alpha Stockholder Approval is not obtained at the Alpha Companies’ special meetings. This reimbursement is limited to $9.0 million, which would be credited against the aforementioned $19.0 million termination fee.
The company is required to pay the Alpha Companies a termination fee of $19.0 million if (i) the Merger Agreement is terminated because an order, decree or ruling issued under antitrust law prohibits the consummation of the transactions contemplated by the Merger Agreement, or (ii) the Merger Agreement is terminated because the Mergers have not closed by the eight month anniversary of the Merger Agreement and all closing conditions are satisfied except for closing conditions relating to matters arising under antitrust laws.
Cumberland Outlook Update
On July 2, 2018, we announced our updated 2018 production outlook for the Cumberland mine, our longwall thermal coal mine located in NAPP. Due to unforeseen geologic conditions due to reduced coal seam thickness and localized soft clay influences within the coal seam, both production and processing were temporarily slowed. Full coal production resumed August 1, 2018, at the Cumberland mine as the previously announced challenges due to localized geologic conditions are no longer impacting production or processing. We now expect our total 2018 NAPP shipments to be reduced by one million tons below the previously announced guidance of 7.1 million tons to 7.5 million tons.
Basis of Presentation
In this management’s discussion and analysis, (i) the “Successor” refers to Contura Energy, Inc. and its subsidiaries for the period beginning July 26, 2016 and thereafter following the acquisition of certain of Old Alpha’s core coal operations as

202


part of the Old Alpha Restructuring (“Acquisition”), and (ii) “Predecessor” refers to Contura on a carve-out basis using Old Alpha’s historical bases in the assets, liabilities and operating results of Contura while under Old Alpha’s ownership.
The historical costs and expenses reflected in the Predecessor combined results of operations include an allocation for certain corporate functions historically provided by Old Alpha, including, but not limited to, general corporate expenses related to finance, legal, information technology, human resources, employee benefits and incentives, insurance, stock-based compensation, engineering, asset management, and sales and logistics, which were included in cost of coal sales and selling, general and administrative expenses in the financial statements included elsewhere in this joint proxy statement and prospectus.
The combined financial statements of our Predecessor included elsewhere in this joint proxy statement and prospectus and the other historical Predecessor combined financial information presented and discussed herein may not be indicative of what our financial condition, results of operations and cash flows would have been if we were a separate stand-alone entity, nor are they indicative of what our financial position, results of operations and cash flows may be in the future. In addition, the Successor consolidated financial statements on and after July 26, 2016 are not comparable with the Predecessor combined financial statements prior to that date. Refer to Notes 1 and 3 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for additional information.
On December 8, 2017, we closed a transaction with Blackjewel L.L.C. (“Buyer”) to sell the Eagle Butte and Belle Ayr mines located in the PRB, Wyoming, along with related coal reserves, equipment, infrastructure and other real properties. The PRB operations results of operations and financial position are reported as discontinued operations in the financial statements. The historical information in the accompanying Notes to the financial statements has been restated to reflect the effects of the PRB operations being reported as discontinued operations in the financial statements. The discontinued operations include our former PRB segment. To conform with the financial statements and accompanying Notes, the former PRB segment information for the discontinued operation has been eliminated. See Note 4 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for further information on discontinued operations.
We adopted Accounting Standards Codification (“ASC”) 606, with a date of initial application of January 1, 2018, using the modified retrospective method. As a result, we had changes to our accounting policy for revenue recognition. See Note 4 to Contura’s unaudited condensed consolidated financial statements included elsewhere in this joint proxy statement and prospectus for further information on the revenue recognition standard adopted during the six months ended June 30, 2018.
Management’s discussion and analysis of Contura’s financial condition and results of operations has been recast for all periods presented to reflect the retrospective adoption of ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash and ASU 2017-07, Compensation-Retirement Benefits (Topic 715): Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost .
Factors Affecting Our Results of Operations
Sales Volume. We earn revenues primarily through the sale of coal produced at our operations and resale of coal purchased from third parties. During Successor period for the six months ended June 30, 2018 , we sold 2.4 million tons of met coal from CAPP and NAPP, 3.1 million tons of met coal from our Trading and Logistics business, and 2.6 million tons of steam coal from CAPP and NAPP. During Successor period for the six months ended June 30, 2017 , we sold 2.1 million tons of met coal from CAPP and NAPP, 2.3 million tons of met coal from our Trading and Logistics business, and 4.0 million tons of steam coal from CAPP and NAPP. During the Successor period for the year ended December 31, 2017 , we sold 4.1 million tons of met coal from CAPP and NAPP, 4.8 million tons of met coal from our Trading and Logistics business, and 6.7 million tons of steam coal from CAPP and NAPP. During the Successor period for the period from July 26, 2016 to December 31, 2016 , we sold 1.6 million tons of met coal from CAPP and NAPP, 1.5 million tons of met coal from our Trading and Logistics business, and 2.7 million tons of steam coal from CAPP and NAPP. During the Predecessor period for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 , we sold 2.4 million tons and 4.9 million tons of met coal from CAPP and NAPP, 0.2 million tons and 0.6 million tons of met coal from our Trading and Logistics business, and 4.4 million tons and 8.2 million tons of steam coal from CAPP, NAPP, and our Trading and Logistics business, respectively.

203


Sales Agreements
We manage our commodity price risk for coal sales through the use of coal supply agreements. As of July 31, 2018, we expect to ship on sales commitments of approximately 6.3 million tons of NAPP coal for 2018, 100% of which is priced at an average realized price per ton of $43.71, and 3.9 million tons of CAPP coal for 2018, 68% of which is priced at an average realized price per ton of $131.48.
Realized Pricing . Our realized price per ton of coal is influenced by many factors that vary by region, including (i) coal quality, which includes energy (heat content), sulfur, ash, volatile matter and moisture content; (ii) differences in market conventions concerning transportation costs and volume measurement; and (iii) regional supply and demand.
•
Coal Quality. The energy content or heat value of steam coal is a significant factor influencing coal prices as higher energy coal is more desirable to consumers and typically commands a higher price in the market. The heat value of coal is commonly measured in British thermal units or the amount of heat needed to raise the temperature of one pound of water by one degree Fahrenheit. Coal from the eastern and midwestern regions of the United States tends to have a higher heat value than coal found in the western United States. Coal volatility is a significant factor influencing met coal pricing as coal with a lower volatility has historically been more highly valued and typically commands a higher price in the market. The volatility refers to the loss in mass, less moisture, when coal is heated in the absence of air. The volatility of met coal determines the percentage of feed coal that actually becomes coke, known as coke yield, with lower volatility producing a higher coke yield.
•
Market Conventions. Coal sales contracts are priced according to conventions specific to the market into which such coal is to be sold. Our domestic sales contracts are typically priced free on board (“FOB”) at our mines and on a short ton basis. Our international sales contracts are typically priced FOB at the shipping port from which such coal is delivered and on a metric ton basis. Accordingly, for international sales contracts, we typically bear the cost of transportation from our mine complexes to the applicable outbound shipping port, and our coal sales realization per ton calculation reflects the conversion of such tonnage from metric tons into short tons, as well as the elimination of the freight and handling fulfillment component of coal sales revenue. In addition, for domestic sales contracts, as customers typically bear the cost of transportation from our mine complexes, our operations located further away from the end user of the coal may command lower prices.
•
Regional Supply and Demand. Our realized price per ton is influenced by market forces of the regional market into which such coal is to be sold. Market pricing may vary according to region and lead to different discounts or premiums to the most directly comparable benchmark price for such coal product.
Costs. Our results of operations are dependent upon our ability to improve productivity and control costs. Our primary expenses are for operating supply costs, repair and maintenance expenditures, cost of purchased coal, royalties, current wages and benefits, freight and handling costs and taxes incurred in selling our coal. Principal goods and services we use in our operations include maintenance and repair parts and services, electricity, fuel, roof control and support items, explosives, tires, conveyance structure, ventilation supplies and lubricants.

204


In addition, our cost of coal sales includes idle mine costs, which are spread over total sales volume by basin and forecasted by reference to upcoming reclamation obligations and historical cost trends. The following table shows our cost of coal sales and idle mine costs. We calculate adjusted cost of coal sales as cost of coal sales less idle mine costs.
 
Six Months Ended
June 30, 2018
(Actual)
 
Six Months Ended
 June 30, 2017
(Actual)
 
Year Ended
December 31, 2017
(Actual)
 
Period from July 26, 2016 to
December 31, 2016
(Actual)
 
Per Ton
 
Per Ton
 
Per Ton
 
Per Ton
CAPP
 
 
 
 
 
 
 
Cost of coal sales
$
78.66

 
$
73.97

 
$
74.50

 
$
68.57

Idle mine costs
$
1.62

 
$
1.60

 
$
1.77

 
$
2.08

Adjusted cost of coal sales
$
77.04

 
$
72.37

 
$
72.73

 
$
66.49

NAPP
 
 
 
 
 
 
 
Cost of coal sales
$
39.89

 
$
31.12

 
$
37.14

 
$
36.95

Idle mine costs
$
0.98

 
$
0.80

 
$
0.89

 
$
1.60

Adjusted cost of coal sales
$
38.91

 
$
30.32

 
$
36.25

 
$
35.35

Our management strives to aggressively control costs and improve operating performance to mitigate external cost pressures. We experience volatility in operating costs related to fuel, explosives, steel, tires, contract services and healthcare, among others, and take measures to mitigate the increases in these costs at all operations. We have a centralized sourcing group for major supplier contract negotiation and administration, for the negotiation and purchase of major capital goods, and to support the business units. We promote competition between suppliers and seek to develop relationships with suppliers that focus on lowering our costs. We seek suppliers who identify and concentrate on implementing continuous improvement opportunities within their area of expertise. To the extent upward pressure on costs exceeds our ability to realize sales increases, or if we experience unanticipated operating or transportation difficulties, our operating margins would be negatively impacted. We may also experience difficult geologic conditions, delays in obtaining permits, labor shortages, unforeseen equipment problems, and unexpected shortages of critical materials such as tires, fuel and explosives that may result in adverse cost increases and limit our ability to produce at forecasted levels.
During the year ended December 31, 2017 we had temporary production delays in NAPP resulting from a mid-September roof fall at our Cumberland underground longwall mine in Greene County, Pennsylvania. No injuries occurred as a result of the roof fall and, due to the installation of additional support in the headgate area, we believe the issue has been successfully mitigated. Full production resumed at Cumberland in mid-October. In late-November, the armored face conveyor chain prematurely failed due to adverse face conditions and the chain had to be replaced. Full production resumed at Cumberland in mid-December.
Results of Operations
Our results of operations for the Successor period for the six months ended June 30, 2018 compared to the six months ended June 30, 2017, the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 and the Predecessor period for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 are discussed in these “Results of Operations” presented below. Given the change in basis that resulted from the Acquisition on July 26, 2016, we separately discuss our Successor and Predecessor results of operations and segment results.

205


Six Months Ended June 30, 2018 Compared to the Six Months Ended June 30, 2017 (Successor)
The following tables summarize certain financial information relating to our operating results that have been derived from our Condensed Consolidated Financial Statements for the six months ended June 30, 2018 and 2017.
Revenues
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
Revenues:
 
 
 
 
 
 
 
Coal revenues:
 
 
 
 
 
 
 
Steam
$
111,984

 
$
166,255

 
$
(54,271
)
 
(32.6
)%
Met
714,573

 
614,645

 
99,928

 
16.3
 %
Freight and handling fulfillment revenues
176,976

 
129,919

 
47,057

 
36.2
 %
Other revenues
7,717

 
3,968

 
3,749

 
94.5
 %
Total revenues
$
1,011,250

 
$
914,787

 
$
96,463

 
10.5
 %
 
 
 
 
 
 
 
 
Tons sold:
 
 
 
 
 
 
 
Steam
2,679

 
3,961

 
(1,282
)
 
(32.4
)%
Met
5,523

 
4,466

 
1,057

 
23.7
 %
Total
8,202

 
8,427

 
(225
)
 
(2.7
)%
 
 
 
 
 
 
 
 
Coal sales realization per ton (1) :
 
 
 
 
 
 
 
Steam
$
41.80


$
41.97

 
$
(0.17
)
 
(0.4
)%
Met
$
129.38


$
137.63

 
$
(8.25
)
 
(6.0
)%
Average
$
100.78


$
92.67

 
$
8.11

 
8.8
 %
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
Coal revenues (1) :
 
 
 
 
 
 
 
CAPP Operations
$
286,723

 
$
259,975

 
$
26,748

 
10.3
 %
NAPP Operations
132,166

 
175,001

 
(42,835
)
 
(24.5
)%
Trading and Logistics Operations
407,668

 
345,924

 
61,744

 
17.8
 %
Total coal revenues
$
826,557

 
$
780,900

 
$
45,657

 
5.8
 %
 
 
 
 
 
 
 


Tons sold:
 
 
 
 
 
 


CAPP Operations
2,138

 
2,048

 
90

 
4.4
 %
NAPP Operations
2,986

 
4,038

 
(1,052
)
 
(26.1
)%
Trading and Logistics Operations
3,078

 
2,341

 
737

 
31.5
 %
 
 
 
 
 
 
 


Coal sales realization per ton (1) :
 
 
 
 
 
 


CAPP Operations
$
134.11

 
$
126.94

 
$
7.17

 
5.6
 %
NAPP Operations
$
44.26

 
$
43.34

 
$
0.92

 
2.1
 %
Trading and Logistics Operations
$
132.45

 
$
147.77

 
$
(15.32
)
 
(10.4
)%
Average
$
100.78

 
$
92.67

 
$
8.11

 
8.8
 %
______________
(1)
Does not include $177.0 million of freight and handling fulfillment revenues for the six months ended June 30, 2018 .

206



Total revenues. Total revenues increased $96.5 million , or 10.5% , for the six months ended June 30, 2018 compared to the prior year period. The increase in total revenues was due to increased coal revenues of $45.7 million , increased freight and handling fulfillment revenues of $47.1 million and increased other revenues of $3.7 million .
Coal revenues. Coal revenues increased $45.7 million , or 5.8% , for the six months ended June 30, 2018 compared to the prior year period. The increase in coal revenues was due to increased revenues of 10.3% and 17.8% for CAPP and our Trading and Logistics Operations, respectively, partially offset by decreased revenues of 24.5% for NAPP.
The increase in CAPP revenues was primarily due to higher coal sales volume of 0.1 million tons and increases in coal sales realization of $7.17 per ton. The decrease in NAPP revenues was primarily due to lower coal sales volumes of 1.1 million tons, partially offset by higher coal sales realization of $0.92 per ton. The increase in Trading and Logistics coal revenues was primarily due to higher sales volumes of 0.7 million tons, partially offset by lower coal sales realization of $15.32 per ton.
Our sales mix of met coal and steam coal based on volume was 67.3% and 32.7%, respectively, for the six months ended June 30, 2018 compared to 53.0% and 47.0%, respectively, in the prior year period. Our sales mix of met coal and steam coal based on coal revenues, excluding freight and handling fulfillment revenues, was 86.5% and 13.5%, respectively, for the six months ended June 30, 2018 compared to 78.7% and 21.3%, respectively, for the prior year period.
Steam coal volumes decreased 1.3 million tons due to increased longwall moves during the current period, and average coal realization per ton decreased $0.17 . Met coal volumes increased 1.1 million tons due to increased export sales for our Trading and Logistics Operations during the current period, and average coal realization per ton decreased $8.25 . The increase in coal revenues consisted of increased met coal revenue of $99.9 million , or 16.3% , partially offset by decreased steam coal revenue of $54.3 million , or 32.6% .
Freight and handling fulfillment revenues were $177.0 million for the six months ended June 30, 2018 , an increase of $47.1 million , or 36.2% , compared to the prior year period. This increase was primarily due to increased shipments by rail car during the current period.
Other revenues. Other revenues were $7.7 million for the six months ended June 30, 2018 , an increase of $3.7 million , or 94.5% , compared to the prior year period, primarily attributable to a $2.5 million increase in rail transportation rebates and a $1.6 million increase in coal royalty revenues, partially offset by a $0.3 million decrease in revenues associated with natural gas wells.
Costs and Expenses
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
Cost of coal sales (exclusive of items shown separately below)
$
629,128

 
$
571,320

 
$
57,808

 
10.1
 %
Freight and handling costs
176,976

 
129,919

 
47,057

 
36.2
 %
Depreciation, depletion and amortization
22,810

 
17,788

 
5,022

 
28.2
 %
Amortization of acquired intangibles, net
11,310

 
34,243

 
(22,933
)
 
(67.0
)%
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
31,108

 
40,148

 
(9,040
)
 
(22.5
)%
Merger related costs
3,883

 
—

 
3,883

 
100.0
 %
Secondary offering costs
—

 
3,438

 
(3,438
)
 
(100.0
)%
Total other operating (income) loss:
 
 
 
 


 


Gain on disposal of assets
(16,502
)
 
—

 
(16,502
)
 
(100.0
)%
Mark-to-market adjustment for acquisition-related obligations
—

 
2,382

 
(2,382
)
 
(100.0
)%

207


Gain on settlement of acquisition-related obligations
(292
)
 
(9,200
)
 
8,908

 
96.8
 %
Other expenses
288

 
81

 
207

 
255.6
 %
Total costs and expenses
858,709

 
790,119

 
$
68,590

 
8.7
 %
Other income (expense):
 

 
 
 


 


Interest expense
(17,984
)
 
(19,614
)
 
1,630

 
8.3
 %
Interest income
322

 
73

 
249

 
341.1
 %
Loss on early extinguishment of debt
—

 
(38,701
)
 
38,701

 
100.0
 %
Equity loss in affiliates
(1,233
)
 
(1,709
)
 
476

 
27.9
 %
Bargain purchase gain
—

 
642

 
(642
)
 
(100.0
)%
Miscellaneous income, net
(583
)
 
(192
)
 
(391
)
 
(203.6
)%
Total other expense, net
(19,478
)
 
(59,501
)
 
40,023

 
67.3
 %
Income tax expense
(121
)
 
(15,811
)
 
15,690

 
99.2
 %
Net income from continuing operations
$
132,942

 
$
49,356

 
$
83,586

 
169.4
 %
 
 
 
 
 


 


Cost of coal sales:
 
 
 
 


 


CAPP Operations
$
168,170

 
$
151,484

 
$
16,686

 
11.0
 %
NAPP Operations
$
119,116

 
$
125,647

 
$
(6,531
)
 
(5.2
)%
Trading and Logistics Operations
$
341,842

 
$
294,381

 
$
47,461

 
16.1
 %
 
 
 
 
 


 


Tons sold:
 
 
 
 


 


CAPP Operations
2,138

 
2,048

 
$
90

 
4.4
 %
NAPP Operations
2,986

 
4,038

 
$
(1,052
)
 
(26.1
)%
Trading and Logistics Operations
3,078

 
2,341

 
$
737

 
31.5
 %
 
 
 
 
 


 


Cost of coal sales per ton:
 
 
 
 


 


CAPP Operations
$
78.66

 
$
73.97

 
$
4.69

 
6.3
 %
NAPP Operations
$
39.89

 
$
31.12

 
$
8.77

 
28.2
 %
Trading and Logistics Operations
$
111.06

 
$
125.75

 
$
(14.69
)
 
(11.7
)%
 
 
 
 
 


 


Coal margin per ton (1) :
 
 
 
 


 


CAPP Operations
$
55.45

 
$
52.97

 
$
2.48

 
4.7
 %
NAPP Operations
$
4.37

 
$
12.22

 
$
(7.85
)
 
(64.2
)%
Trading and Logistics Operations
$
21.39

 
$
22.02

 
$
(0.63
)
 
(2.9
)%
______________
(1)
Coal margin per ton for our reportable segments is calculated as coal sales realization per ton for our reportable segments less cost of coal sales per ton for our reportable segments. Coal margin per ton is not shown for our All Other category since it has no coal sales or coal production related to our continuing operation.

Cost of coal sales. Cost of coal sales increased $57.8 million , or 10.1% , for the six months ended June 30, 2018 compared to the prior year period. The increase was primarily driven by increased purchases of tons associated with our Trading and Logistics Operations segment during the current period.
Freight and handling costs. Freight and handling costs increased $47.1 million , or 36.2% , for the six months ended June 30, 2018 compared to the prior year period. This increase was primarily due to increased shipments by rail car during the current period.

208


Depreciation, depletion and amortization. Depreciation, depletion and amortization increased $5.0 million , or 28.2% , for the six months ended June 30, 2018 compared to the prior year period. The increase in depreciation, depletion and amortization primarily related to increased purchases of machinery and equipment during the current period and increased asset development during the current period.
Amortization of acquired intangibles, net. Amortization of acquired intangibles, net decreased $22.9 million , or 67.0% , for the six months ended June 30, 2018 compared to the prior year period. The decrease was primarily driven by the write-off of above-market coal sales contract assets during 2017 associated with the sale of PRB and certain other above-market coal sales contract assets being fully amortized as of December 31, 2017, partially offset by the accelerated amortization of acquired intangibles related to the above-market coal sales contract asset related to FirstEnergy Generation, LLC during the current period.
Selling, general and administrative. Selling, general and administrative expenses decreased $9.0 million , or 22.5% for the six months ended June 30, 2018 compared to the prior year period. The six months ended June 30, 2018 included approximately $6.0 million in non-cash stock compensation and $4.8 million related to incentive bonus plans. Selling, general, and administrative expenses for the six months ended June 30, 2017 were higher primarily due to non-recurring expenses related to the special dividend, business development expenses, and costs related to the company’s filing of a registration statement.  
Acquisition-related obligations. The mark-to-market loss on acquisition-related obligations of $2.4 million for the six months ended June 30, 2017 primarily consisted of a mark-to-market loss of $1.8 million related to the Contingent Reclamation Funding Liability and a mark-to-market loss of $0.5 million related to the Contingent Credit Support Commitment. The gain on settlement of acquisition-related obligations of $9.2 million for the six months ended June 30, 2017 primarily consisted of the UMWA Contingent VEBA Funding Notes 1 and Note 2 settlements.
Merger related costs. The merger related costs of $3.9 million recorded during the six months ended June 30, 2018 related to costs incurred related to the Merger Agreement entered into with the Alpha Companies on April 29, 2018.
Secondary offering costs. The secondary offering costs of $3.4 million recorded during the six months ended June 30, 2017 related to (i) legal fees for drafting the registration statement and other legal services directly related to the withdrawn offering and (ii) financial reporting advisory fees directly related to the withdrawn offering including preparation of the pro forma financial statements and other financial information included in the registration statement.
Gain on disposal of assets. The gain on disposal of assets of $16.5 million recorded during the six months ended June 30, 2018 related primarily to the sale of a disposal group within the Company’s CAPP segment.
Interest expense. Interest expense decreased $1.6 million , or 8.3% , for the six months ended June 30, 2018 compared to the prior year period, primarily due to lower interest costs associated with Company debt as a result of the prior year debt refinancing. See Note 9 to Contura’s unaudited condensed consolidated financial statements included elsewhere in this joint proxy statement and prospectus for additional information.
Loss on early extinguishment of debt. The loss on early extinguishment of debt of $38.7 million for the six months ended June 30, 2017 primarily related to a prepayment premium of $22.5 million on the 10.00% Senior Secured First Lien Notes and the write-off of outstanding debt discounts of $13.4 million on the 10.00% Senior Secured First Lien Notes and GUC Distribution Note in connection with the Credit Agreement entered into by the Company on March 17, 2017.
Income taxes. Income tax expense of $0.1 million was recorded for the six months ended June 30, 2018 on income from continuing operations before income taxes of $133.1 million . The effective tax rate is lower than the federal statutory rate of 21% primarily due to the impact of the percentage depletion allowance and the reduction in the valuation allowance, partially offset by the impact of state income taxes, net of federal tax impact.
Income tax expense of $15.8 million was recorded for the six months ended June 30, 2017 on income from continuing operations before income taxes of $65.2 million . The effective tax rate is lower than the federal statutory rate of 35% primarily due to the impact of the percentage depletion allowance and the reduction in the valuation allowance.

209


Segment Adjusted EBITDA
Segment Adjusted EBITDA for our reportable segments is a financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Segment Adjusted EBITDA is presented because management believes it is a useful indicator of the financial performance of our coal operations. The following tables presents a reconciliation of net income (loss) to Adjusted EBITDA for the six months ended June 30, 2018 and 2017:
 
Six Months Ended June 30, 2018
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Net income (loss) from continuing operations
$
123,000

 
$
6,205

 
$
54,894

 
$
(51,157
)
 
$
132,942

Interest expense
312

 
(349
)
 
—

 
18,021

 
17,984

Interest income
(10
)
 
(12
)
 
(18
)
 
(282
)
 
(322
)
Income tax expense
—

 
—

 
—

 
121

 
121

Depreciation, depletion and amortization
11,978

 
10,463

 
—

 
369

 
22,810

Merger related costs
—

 
—

 
—

 
3,883

 
3,883

Management restructuring costs (1)
—

 
—

 
—

 
2,659

 
2,659

Non-cash stock compensation expense
—

 
—

 
—

 
6,355

 
6,355

Gain on settlement of acquisition-related obligations
—

 
—

 
—

 
(292
)
 
(292
)
Gain on sale of disposal group  (2)
(16,386
)
 
—

 
—

 
—

 
(16,386
)
Accretion expense
2,174

 
1,882

 
—

 
—

 
4,056

Amortization of acquired intangibles, net
—

 
—

 
11,310

 
—

 
11,310

Adjusted EBITDA (3)
$
121,068

 
$
18,189

 
$
66,186

 
$
(20,323
)
 
$
185,120

______________
(1)
Management restructuring costs are related to severance expense associated with senior management changes in the six months ended June 30, 2018 .
(2)
During the fourth quarter of 2017, we entered into an asset purchase agreement to sell a disposal group (comprised of property, plant and equipment and associated asset retirement obligations) within our CAPP segment. From the date we entered into the asset purchase agreement through the transaction close date, the property, plant and equipment and associated asset retirement obligations were classified as held for sale in amounts representing the fair value of the disposal group. Upon permit transfer, the transaction closed on April 2, 2018. We paid $10.0 million in connection with the transaction, which was paid into escrow on March 27, 2018 and transferred to the buyer at the transaction close date, and expect to pay a series of additional cash payments in the aggregate amount of $1.5 million, per the terms stated in the agreement, and recorded a gain on sale of approximately $16.4 million within gain on disposal of assets with in the Condensed Consolidated Statements of Operations.
(3)
Pursuant to the PRB divestiture and classification as a discontinued operation, we are no longer presenting a PRB reporting segment. The former PRB reporting segment had Adjusted EBITDA of ($2.4 million) for the six months ended June 30, 2018 .

210


 
Six Months Ended June 30, 2017
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Net income (loss) from continuing operations
$
98,346

 
$
45,155

 
$
16,590

 
$
(110,735
)
 
$
49,356

Interest expense
(93
)
 
(369
)
 
—

 
20,076

 
19,614

Interest income
(5
)
 
—

 
—

 
(68
)
 
(73
)
Income tax expense
—

 
—

 
—

 
15,811

 
15,811

Depreciation, depletion and amortization
10,711

 
6,662

 
—

 
415

 
17,788

Non-cash stock compensation expense
—

 
—

 
209

 
6,389

 
6,598

Mark-to-market adjustment - acquisition-related obligations
—

 
—

 
—

 
2,382

 
2,382

Gain on settlement of acquisition-related obligations
—

 
—

 
—

 
(9,200
)
 
(9,200
)
Secondary offering costs
—

 
—

 
—

 
3,438

 
3,438

Loss on early extinguishment of debt
—

 
—

 
—

 
38,701

 
38,701

Bargain purchase gain
—

 
—

 
—

 
(642
)
 
(642
)
Accretion expense
2,923

 
2,082

 
—

 
—

 
5,005

Amortization of acquired intangibles, net
—

 
—

 
34,243

 
—

 
34,243

Expenses related to Special Dividend
377

 
57

 
—

 
9,102

 
9,536

Adjusted EBITDA (1) (2)
$
112,259

 
$
53,587

 
$
51,042

 
$
(24,331
)
 
$
192,557

______________
(1)
Our Adjusted EBITDA calculation has been modified to add back non-cash stock compensation expense to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, we are no longer presenting a PRB reporting segment. The former PRB reporting segment had Adjusted EBITDA of $18.8 million for the six months ended June 30, 2017.

The following table summarizes Adjusted EBITDA for our three reportable segments and All Other category:
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
Adjusted EBITDA
 
 
 
 
 
 
 
CAPP Operations
$
121,068

 
$
112,259

 
$
8,809

 
7.8
 %
NAPP Operations
$
18,189

 
$
53,587

 
$
(35,398
)
 
(66.1
)%
Trading and Logistics Operations
$
66,186

 
$
51,042

 
$
15,144

 
29.7
 %
All Other
$
(20,323
)
 
$
(24,331
)
 
$
4,008

 
16.5
 %
Total
$
185,120


$
192,557


$
(7,437
)
 
(3.9
)%
CAPP Coal Operations. Adjusted EBITDA increased $8.8 million , or 7.8% , for the six months ended June 30, 2018 compared to the prior year period. The increase in Adjusted EBITDA was primarily due to increased coal margin per ton of $2.48 . The increase in coal margin per ton consisted of increased average sales realization per ton of $7.17 , or approximately 5.6% , due primarily to increases in the market pricing of coal during the current period.
NAPP Coal Operations. Adjusted EBITDA decreased $35.4 million , or 66.1% , for the six months ended June 30, 2018 compared to the prior year period. The decrease in Adjusted EBITDA was primarily due to decreased coal margin per ton of $7.85 . The decrease in coal margin per ton consisted of increased average cost of coal sales per ton of $8.77 , or approximately 28.2% , due primarily to reductions in tons sold due to geological factors during the current period.
Trading and Logistics Operations. Adjusted EBITDA increased $15.1 million , or 29.7% , for the six months ended June 30, 2018 compared to the prior year period. The increase in Adjusted EBITDA was primarily due to increased sales volumes during the current period, partially offset by a decrease in coal margin per ton of $0.63 .

211


All Other category. Adjusted EBITDA increased $4.0 million , or 16.5% , for the six months ended June 30, 2018 compared to the prior year period. The increase in Adjusted EBITDA was driven by decreases in professional service related expenses and decreases in incentive pay during the current period.
Year Ended December 31, 2017 (Successor)
The following tables summarize certain financial information relating to our operating results that have been derived from our consolidated financial statements for the year ended December 31, 2017 .
Revenues
 
Successor
 
 
(In thousands, except for per ton data)
Year Ended December 31, 2017
 
% of Total Revenues
Revenues:
 
 
 
Coal revenues:
 
 
 
Steam
$
286,662

 
17.4
%
Met
1,105,819

 
67.0
%
Freight and handling revenues
247,402

 
15.0
%
Other revenues
10,086

 
0.6
%
Total revenues
$
1,649,969

 
100.0
%
 
 
 
 
Tons sold:
 
 
 
Steam
6,741

 
 
Met
8,916

 
 
Total
15,657

 
 
 
 
 
 
Coal sales realization per ton:
 
 
 
Steam
$
42.53

 
 
Met
$
124.03

 
 
Average
$
88.94

 
 

212


 
Successor
 
 
(In thousands, except for per ton data)
Year Ended December 31, 2017
 
% of Total Revenues
Coal revenues (1) :
 
 
 
CAPP Operations
$
458,806

 
27.8
%
NAPP Operations
301,789

 
18.3
%
Trading and Logistics Operations
631,886

 
38.3
%
Total coal revenues
$
1,392,481

 
84.4
%
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
3,901

 
 
NAPP Operations
6,904

 
 
Trading and Logistics Operations
4,852

 
 
 
 
 
 
Coal sales realization per ton (1) :
 
 
 
CAPP Operations
$
117.61

 
 
NAPP Operations
$
43.71

 
 
Trading and Logistics Operations
$
130.23

 
 
Average
$
88.94

 
 
______________
(1)
Does not include any portion of the price paid by our export customers to transport coal to the relevant outbound shipping port.

Revenues. Total revenues were $1,650.0 million for the year ended December 31, 2017 and consisted of coal revenues of $1,392.5 million , freight and handling revenues of $247.4 million and other revenues of $10.1 million . Our sales mix of met coal and steam coal based on volume was 56.9% and 43.1%, respectively, and sales mix of met coal and steam coal based on coal revenues was 79.4% and 20.6%, respectively, for the year ended December 31, 2017 . CAPP, NAPP and Trading and Logistics Operations’ coal revenues comprised 28% , 18% and 38% , respectively, of total revenues for the year ended December 31, 2017 . Average coal sales realization per ton was $88.94 .
Costs and Expenses
 
Successor
 
 
(In thousands, except for per ton data)
Year Ended December 31, 2017
 
% of Total Revenues
Cost of coal sales (exclusive of items shown separately below)
$
1,089,829

 
66.1
 %
Freight and handling costs
247,402

 
15.0
 %
Depreciation, depletion and amortization
34,910

 
2.1
 %
Amortization of acquired intangibles, net
59,007

 
3.6
 %
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
67,459

 
4.1
 %
Secondary offering costs
4,491

 
0.3
 %
Total other operating (income) loss:
 
 


Mark-to-market adjustment for acquisition-related obligations
3,221

 
0.2
 %
Gain (loss) on settlement of acquisition-related obligations
(38,886
)
 
(2.4
)%
Other expenses
178

 
—
 %
Total costs and expenses
1,467,611

 
88.9
 %

213


Other (expense) income:
 
 
 
   Interest expense
(35,977
)
 
(2.2
)%
   Interest income
210

 
—
 %
   Loss on early extinguishment of debt
(38,701
)
 
(2.3
)%
   Equity loss in affiliates
(3,339
)
 
(0.2
)%
   Bargain purchase gain
1,011

 
0.1
 %
   Miscellaneous income, net
194

 
—
 %
Total other expense, net
(76,602
)
 
(4.6
)%
Income tax benefit
67,979

 
4.1
 %
Net income from continuing operations
$
173,735

 
10.5
 %
 
 
 
 
Cost of coal sales:
 
 
 
CAPP Operations
$
290,632

 
17.6
 %
NAPP Operations
$
256,427

 
15.5
 %
Trading and Logistics Operations
$
543,148

 
32.9
 %
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
3,901

 
 
NAPP Operations
6,904

 
 
Trading and Logistics Operations
4,852

 
 
 
 
 
 
Cost of coal sales per ton:
 
 
 
CAPP Operations
$
74.50

 
 
NAPP Operations
$
37.14

 
 
Trading and Logistics Operations
$
111.94

 
 
 
 
 
 
Coal margin per ton (1) :
 
 
 
CAPP Operations
$
43.11

 
 
NAPP Operations
$
6.57

 
 
Trading and Logistics Operations
$
18.29

 
 
______________
(1)
Coal margin per ton for our reportable segments is calculated as coal sales realization per ton for our reportable segments less cost of coal sales per ton for our reportable segments. Coal margin per ton is not shown for our All Other category since it has no coal sales or coal production related to our continuing operations.

Cost of coal sales was $1,089.8 million (including $0.3 million of expenses related to the dividend), freight and handling costs were $247.4 million , other expenses were $0.2 million and depreciation, depletion and amortization was $34.9 million for the year ended December 31, 2017 .
Amortization of acquired intangibles, net was $59.0 million . During the year ended December 31, 2017 , coal supply agreement assets related to the Acquisition were amortized over the actual amount of tons shipped under each contract.
Selling, general and administrative expenses were $67.5 million for the year ended December 31, 2017 , which includes approximately $4.0 million of non-recurring expenses associated with the formation of the company and costs related to the company’s filing of a registration statement with the SEC, $19.2 million of stock compensation charges (including approximately $4.8 million of dividend equivalent payments pursuant to the award adjustment provisions of the Contura Energy, Inc. Management Incentive Plan (the “MIP”)), and $7.4 million of charges related to our incentive bonus plans. The

214


selling, general and administrative expenses also include approximately $1.3 million of professional fees related to the dividend), and approximately $1.5 million of business development expense.
The mark-to-market loss on acquisition-related obligations of $3.2 million for the year ended December 31, 2017 consisted of a mark-to-market loss of $2.5 million related to the Contingent Reclamation Funding Liability and a mark-to-market loss of $0.7 million related to the Contingent Credit Support Commitment. Our credit-adjusted risk-free rate as of September 30, 2017 decreased relative to the rate used to discount the Contingent Reclamation Funding Liability as of December 31, 2016. The reduction in expected funding of the Contingent Reclamation Funding Liability by us, due to contributions made by ANR, was offset by the change in discount rate resulting in an overall loss of $2.5 million for the nine months ended September 30, 2017. During the fourth quarter of 2017, the Contingent Reclamation Funding Liability and the Contingent Credit Support Commitment were settled. See Note 14 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for additional information.
The gain on settlement of acquisition-related obligations of $38.9 million for the year ended December 31, 2017 consisted of the UMWA Contingent VEBA Funding Notes 1 and Note 2 settlements as well as the settlements of the Contingent Reclamation Funding Liability and the Contingent Credit Support Commitment. See Note 14 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for additional information.
The secondary offering costs of $4.5 million recorded during the year ended December 31, 2017 related to (i) legal fees for drafting the registration statement and other legal services directly related to the withdrawn offering, (ii) financial reporting advisory fees directly related to the withdrawn offering including preparation of the pro forma financial statements and other financial information included in the registration statement and (iii) and other registration related fees. In the third quarter of 2017, we withdrew our initial public offering of our shares of common stock due to capital market conditions.
Interest expense of $36.0 million for the year ended December 31, 2017 consisted primarily of the interest on debt instruments, acquisition-related obligations, including discounts, resulting from the Acquisition, and interest expense related to the extinguishment of certain debt instruments, including discounts, associated with the refinancing transaction on March 17, 2017. See Note 13 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for further detail on the March 17, 2017 refinancing transaction.
The loss on early extinguishment of debt of $38.7 million for the year ended December 31, 2017 primarily related to a prepayment premium of $22.5 million on the 10.00% Senior Secured First Lien Notes and the write-off of outstanding debt discounts of $13.4 million on the 10.00% Senior Secured First Lien Notes and GUC Distribution Note in connection with the Credit Agreement entered into by the Company on March 17, 2017. See Note 13 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for additional information on our debt refinancing.
Income tax benefit of $68.0 million was recorded for the year ended December 31, 2017 on income from continuing operations before income taxes of $105.8 million . The income tax rate differs from the federal statutory rate of 35% primarily due to the impact of the percentage depletion allowance and the reduction in the valuation allowance, partially offset by the revaluation of the net deferred tax assets as a result of the enactment of the Tax Cuts and Jobs Act.

215


Segment Adjusted EBITDA
Segment Adjusted EBITDA for our reportable segments is a non-GAAP financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Segment Adjusted EBITDA is presented because management believes it is a useful indicator of the financial performance of our coal operations. The following table presents a reconciliation of net income (loss) to Adjusted EBITDA for the year ended December 31, 2017 :
 
Successor
 
Year Ended December 31, 2017
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Net income (loss) from continuing operations
$
150,304

 
$
36,604

 
$
29,639

 
$
(42,812
)
 
$
173,735

Interest expense
(90
)
 
(1,505
)
 
—

 
37,572

 
35,977

Interest income
(22
)
 
(1
)
 
—

 
(187
)
 
(210
)
Income tax benefit
—

 
—

 
—

 
(67,979
)
 
(67,979
)
Depreciation, depletion and amortization
18,941

 
15,087

 
—

 
882

 
34,910

Non-cash stock compensation expense
—

 
—

 
650

 
19,559

 
20,209

Mark-to-market adjustment - acquisition-related obligations
—

 
—

 
—

 
3,221

 
3,221

Gain on settlement of acquisition-related obligations
—

 
—

 
—

 
(38,886
)
 
(38,886
)
Secondary offering costs
—

 
—

 
—

 
4,491

 
4,491

Loss on early extinguishment of debt
—

 
—

 
—

 
38,701

 
38,701

Bargain purchase gain
—

 
—

 
—

 
(1,011
)
 
(1,011
)
Accretion expense
5,770

 
4,164

 
—

 
—

 
9,934

Amortization of acquired intangibles, net
—

 
—

 
59,007

 
—

 
59,007

Expenses related to dividend
115

 
84

 
—

 
6,168

 
6,367

Adjusted EBITDA (1) (2)
$
175,018

 
$
54,433

 
$
89,296

 
$
(40,281
)
 
$
278,466

______________
(1)
Our Adjusted EBITDA calculation has been modified to add back non-cash stock compensation expense and accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, we are no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $41.9 million for the year ended December 31, 2017.

CAPP Coal Operations. Adjusted EBITDA was $175.0 million for the year ended December 31, 2017 , driven by coal margin per ton of $43.11 , coal sales realization per ton of $117.61 and cost of coal sales per ton of $74.50 .
NAPP Coal Operations. Adjusted EBITDA was $54.4 million for the year ended December 31, 2017 , driven by coal margin per ton of $6.57 , coal sales realization per ton of $43.71 and cost of coal sales per ton of $37.14 .
Trading and Logistics Operations. Adjusted EBITDA was $89.3 million for the year ended December 31, 2017 , driven by coal margin per ton of $18.29 , coal sales realization per ton of $130.23 and cost of coal sales per ton of $111.94 .
All Other category. Adjusted EBITDA was ($40.3) million for the year ended December 31, 2017 , which includes approximately $4.0 million of non-recurring expenses associated with the formation of the company and costs related to the company’s filing of a registration statement with the SEC, $7.4 million of charges related to our incentive bonus plans, and approximately $1.5 million of business development expense.

216


Period from July 26, 2016 to December 31, 2016 (Successor)
The following tables summarize certain financial information relating to our operating results that have been derived from our consolidated financial statements for the period from July 26, 2016 to December 31, 2016. Also included is certain information relating to the operating results as a percentage of total revenues.
Revenues
 
Successor
 
 
(In thousands, except for per ton data)
Period from
July 26, 2016 to December 31, 2016
 
% of Total Revenues
Revenues:
 
 
 
Coal revenues:
 
 
 
Steam
$
119,189

 
23.6
%
Met
312,503

 
61.7
%
Freight and handling revenues
70,544

 
13.9
%
Other revenues
4,060

 
0.8
%
Total revenues
$
506,296

 
100.0
%
 
 
 
 
Tons sold:
 
 
 
Steam
2,739

 
 
Met
3,068

 
 
Total
5,807

 
 
 
 
 
 
Coal sales realization per ton:
 
 
 
Steam
43.52

 
 
Met
101.86

 
 
Average
74.34

 
 

217


 
Successor
 
 
(In thousands, except for per ton data)
Period from
July 26, 2016 to December 31, 2016
 
% of Total Revenues
Coal revenues (1) :
 
 
 
CAPP Operations
$
137,981

 
27.3
%
NAPP Operations
129,961

 
25.7
%
Trading and Logistics Operations
163,750

 
32.3
%
Total coal revenues
$
431,692

 
85.3
%
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
1,388

 
 
NAPP Operations
2,888

 
 
Trading and Logistics Operations
1,531

 
 
 
 
 
 
Coal sales realization per ton (1) :
 
 
 
CAPP Operations
99.41

 
 
NAPP Operations
45.00

 
 
Trading and Logistics Operations
106.96

 


Average
74.34

 


______________
(1)
Does not include any portion of the price paid by our export customers to transport coal to the relevant outbound shipping port.

Total revenues were $506.3 million for the period from July 26, 2016 to December 31, 2016 and consisted of coal revenues of $431.7 million , freight and handling revenues of $70.5 million and other revenues of $4.1 million . Our sales mix of met coal and steam coal based on volume was 52.8% and 47.2%, respectively, and our sales mix of met coal and steam coal based on coal revenues was 72.4% and 27.6%, respectively, for the period from July 26, 2016 to December 31, 2016. Average coal sales realization per ton was $74.34 . CAPP, NAPP, and Trading and Logistics Operations’ coal revenues comprised 27% , 26% , and 32% , respectively, of total revenues for the period from July 26, 2016 to December 31, 2016.
Costs and Expenses
 
Successor
 
 
(In thousands, except for per ton data)
Period from
July 26, 2016 to December 31, 2016
 
% of Total Revenues
Cost of coal sales (exclusive of items shown separately below)
$
324,590

 
64.1
 %
Freight and handling costs
70,544

 
13.9
 %
Depreciation, depletion and amortization
5,973

 
1.2
 %
Amortization of acquired intangibles, net
61,281

 
12.1
 %
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
19,135

 
3.8
 %
Mark-to-market adjustment for acquisition-related obligations
(10,616
)
 
(2.1
)%
Total costs and expenses
470,907

 
93.0
 %
Other (expense) income:
 
 
 
   Interest expense
(20,496
)
 
(4.0
)%
   Interest income
23

 
—
 %
   Equity loss in affiliates
(2,287
)
 
(0.5
)%

218


Mark-to-market adjustment for warrant derivative liability
(33,975
)
 
(6.7
)%
   Bargain purchase gain
7,719

 
1.5
 %
   Miscellaneous expense, net
(139
)
 
—
 %
Total other expense, net
(49,155
)
 
(9.7
)%
Income tax benefit
1,920

 
0.4
 %
Net loss from continuing operations
$
(11,846
)
 
(2.3
)%
 
 
 
 
Cost of coal sales:
 
 
 
CAPP Operations
$
95,177

 
18.8
 %
NAPP Operations
$
106,718

 
21.1
 %
Trading and Logistics Operations
$
122,667

 
24.2
 %
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
1,388

 
 
NAPP Operations
2,888

 
 
Trading and Logistics Operations
1,531

 
 
 
 
 
 
Cost of coal sales per ton (1) :
 
 
 
CAPP Operations
$
68.57

 
 
NAPP Operations
$
36.95

 
 
Trading and Logistics Operations
$
80.12

 
 
 
 
 
 
Coal margin per ton (2) :
 
 
 
CAPP Operations
$
30.84

 
 
NAPP Operations
$
8.05

 
 
Trading and Logistics Operations
$
26.84

 
 
______________
(1)
Cost of coal sales per ton exclude costs associated with our All Other category.
(2)
Coal margin per ton for our reportable segments is calculated as coal sales realization per ton for our reportable segments less cost of coal sales per ton for our reportable segments. Coal margin per ton is not shown for our All Other category since it has no coal sales or coal production related to our continuing operations.

Cost of coal sales was $324.6 million , freight and handling costs were $70.5 million , depreciation, depletion and amortization was $6.0 million , amortization of acquired intangibles, net was $61.3 million and selling, general and administrative expenses were $19.1 million for the period from July 26, 2016 to December 31, 2016.
The mark-to-market gain on acquisition-related obligations of $10.6 million for the period from July 26, 2016 to December 31, 2016 consisted of a mark-to-market gain of $17.4 million related to the Contingent Credit Support Commitment and a mark-to-market loss of $6.8 million related to the Contingent Reclamation Funding Liability.
The change in fair value of the Contingent Credit Support Commitment resulted from a reduction in our estimated obligation to provide ANR with revolving credit support. The fair value calculation was based on a probability-weighted scenario analysis. The inputs to this analysis included ANR’s projected short-term cash flows, which were derived from the ANR financial statements and operating budget provided pursuant to the terms of the agreement. The cash position of ANR at December 31, 2016 increased relative to the projections used at the Acquisition Date resulting in a gain of $17.4 million in the estimated fair value of this obligation. Based on relevant factors including ANR’s current cash balance, near-term estimated met coal prices, the September 30, 2018 termination date to loan funds, and the provision that loans can only be requested if ANR’s unrestricted cash is below $20.0 million, we adjusted the liability down to $4.6 million for this obligation.

219


Absent a significant change in ANR’s cash position and related projections, we do not expect the obligation to change significantly.
Due to the increase in met coal prices and the corresponding improvement to our financial results, our credit-adjusted risk-free rate as of December 31, 2016 decreased relative to the rate used to discount the Contingent Reclamation Funding Liability at the Acquisition Date. The reduction in the credit-adjusted risk-free rate used to discount the projected obligation was the primary driver of the loss of $6.8 million. Due to the long-term nature of this obligation and the uncertainty of ANR’s operational results over the life of the obligation, we maintained the expectations utilized at the Acquisition Date related to ANR’s expected long-term contributions to the Restricted Cash Reclamation Accounts.
Interest expense of $20.5 million for the period from July 26, 2016 to December 31, 2016 consisted of the accrued interest on debt instruments and acquisition-related obligations, including discounts, resulting from the Acquisition.
The mark-to-market loss on the warrant derivative liability of $34.0 million for the period from July 26, 2016 to December 31, 2016 related to the warrants issued in connection with the Acquisition and was calculated using the Black-Scholes pricing model. The warrants are marked to market at each reporting period with changes in value reflected in earnings. The inputs included in the Black-Scholes pricing model include our stock price, the stated exercise price, the expected term, the annual risk-free interest rate based on the U.S. Constant Maturity Curve and annualized equity volatility. The annualized volatility was calculated by observing volatilities for comparable companies with adjustments for our size and leverage. The annualized volatility as of December 31, 2016 decreased relative to the annualized volatility used as of the Acquisition Date due to the significant improvement in our leverage ratio. However, our stock price as of December 31, 2016 was also significantly higher than our stock price at the Acquisition Date and was the primary driver of the mark-to-market loss of $34.0 million recognized for the warrant derivative liability.
The bargain purchase gain of $7.7 million for the period from July 26, 2016 to December 31, 2016 resulted from the excess of the fair value of the acquired assets over liabilities assumed through the Acquisition.
Income tax benefit of $1.9 million was recorded for the period from July 26, 2016 to December 31, 2016 on loss from continuing operations before income taxes of $13.8 million . The income tax rate differs from the federal statutory rate of 35% primarily due to the impact of the non-deductible mark-to-market adjustment for the warrant derivative liability, partially offset by the impact of the percentage depletion allowance and the reduction in the valuation allowance.

220


Segment Adjusted EBITDA
Segment Adjusted EBITDA for our reportable segments is a non-GAAP financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Segment Adjusted EBITDA is presented because ANR’s management believes it is a useful indicator of the financial performance of our coal operations. The following table presents a reconciliation of net income (loss) to Adjusted EBITDA for the period from July 26, 2016 to December 31, 2016:
 
Successor
 
Period from July 26, 2016 to December 31, 2016
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Net income (loss) from continuing operations
$
37,436

 
$
26,434

 
$
(22,053
)
 
$
(53,663
)
 
$
(11,846
)
Interest expense
97

 
171

 
—

 
20,228

 
20,496

Interest income
(6
)
 
—

 
—

 
(17
)
 
(23
)
Income tax benefit
—

 
—

 
—

 
(1,920
)
 
(1,920
)
Depreciation, depletion and amortization
6,442

 
(772
)
 
—

 
303

 
5,973

Non-cash stock compensation expense
—

 
—

 
37

 
1,387

 
1,424

Mark-to-market adjustment for warrant derivative liability
—

 
—

 
—

 
33,975

 
33,975

Bargain purchase gain
—

 
—

 
—

 
(7,719
)
 
(7,719
)
Mark-to-market adjustment - acquisition-related obligations
—

 
—

 
—

 
(10,616
)
 
(10,616
)
Accretion expense
2,436

 
2,365

 
—

 
—

 
4,801

Amortization of acquired intangibles, net
—

 
—

 
61,281

 
—

 
61,281

Adjusted EBITDA (1) (2)
$
46,405

 
$
28,198

 
$
39,265

 
$
(18,042
)
 
$
95,826

______________
(1)
Our Adjusted EBITDA calculation has been modified to add back non-cash stock compensation expense and accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, we are no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $45.8 million for the period from July 26, 2016 to December 31, 2016.

CAPP Coal Operations. Adjusted EBITDA was $46.4 million for the period from July 26, 2016 to December 31, 2016, driven by coal margin per ton of $30.84 , coal sales realization per ton of $99.41 and cost of coal sales per ton of $68.57 .
NAPP Coal Operations. Adjusted EBITDA was $28.2 million for the period from July 26, 2016 to December 31, 2016, driven by coal margin per ton of $8.05 , coal sales realization per ton of $45.00 and cost of coal sales per ton of $36.95 .
Trading and Logistics Operations. Adjusted EBITDA was $39.3 million for the period from July 26, 2016 to December 31, 2016, driven by coal margin per ton of $26.84 , coal sales realization per ton of $106.96 and cost of coal sales per ton of $80.12 .
All Other category. Adjusted EBITDA was ($18.0) million for the period from July 26, 2016 to December 31, 2016, primarily driven by wages and benefits expense of $7.4 million, professional fees of $4.0 million, incentive pay of $3.2 million, and rent, utilities and property costs of $0.6 million

221


Period from January 1, 2016 to July 25, 2016 (Predecessor)
The following tables summarize certain financial information relating to our operating results that have been derived from our combined financial statements for the period from January 1, 2016 to July 25, 2016 . Also included is certain information relating to the operating results as a percentage of total revenues.
Revenues
 
Predecessor
 
 
(In thousands, except for per ton data)
Period from
January 1, 2016 to July 25, 2016
 
% of Total Revenues
Revenues:
 
 
 
Coal revenues:
 
 
 
Steam
$
197,135

 
48.0
%
Met
147,557

 
35.9
%
Freight and handling revenues
52,076

 
12.7
%
Other revenues
14,343

 
3.4
%
Total revenues
$
411,111

 
100.0
%
 
 
 
 
Tons sold:
 
 
 
Steam
4,424

 
 
Met
2,576

 
 
Total
7,000

 
 
 
 
 
 
Coal sales realization per ton:
 
 
 
Steam
$
44.56

 
 
Met
$
57.28

 
 
Average
$
49.24

 
 

222


 
Predecessor
 
 
(In thousands, except for per ton data)
Period from
January 1, 2016 to July 25, 2016
 
% of Total Revenues
Coal revenues (1) :
 
 
 
CAPP Operations
$
131,640

 
32.0
%
NAPP Operations
204,473

 
49.7
%
Trading and Logistics Operations
8,579

 
2.1
%
Total coal revenues
$
344,692

 
83.8
%
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
2,189

 
 
NAPP Operations
4,654

 
 
Trading and Logistics Operations
157

 
 
 
 
 
 
Coal sales realization per ton (1) :
 
 
 
CAPP Operations
$
60.14

 
 
NAPP Operations
$
43.93

 
 
Trading and Logistics Operations
$
54.64

 
 
Average
$
49.24

 
 
______________
(1)
Does not include any portion of the price paid by our export customers to transport coal to the relevant outbound shipping port.

Total revenues were $411.1 million for the period from January 1, 2016 to July 25, 2016 and consisted of coal revenues of $344.7 million , freight and handling revenues of $52.1 million and other revenues of $14.3 million . Our sales mix of met coal and steam coal based on volume was 36.8% and 63.2%, respectively, and our sales mix of met coal and steam coal based on coal revenues was 42.8% and 57.2%, respectively, for the period from January 1, 2016 to July 25, 2016 . Average coal sales realization per ton was $49.24 . CAPP, NAPP and Trading and Logistics Operations’ coal revenues comprised 32% , 50% and 2% , respectively, of total revenues for the period from January 1, 2016 to July 25, 2016 .
Costs and Expenses
 
Predecessor
 
 
(In thousands, except for per ton data)
Period from
January 1, 2016 to July 25, 2016
 
% of Total Revenues
Cost of coal sales (exclusive of items shown separately below)
$
310,281

 
75.5
 %
Freight and handling costs
52,076

 
12.7
 %
Depreciation, depletion and amortization
66,076

 
16.1
 %
Amortization of acquired intangibles, net
11,567

 
2.8
 %
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
29,568

 
7.2
 %
Asset impairment and restructuring
3,096

 
0.8
 %
Other expenses
2,184

 
0.5
 %
Total costs and expenses
474,848

 
115.5
 %
Other (expense) income:
 
 
 
   Interest expense
(2
)
 
—
 %
   Interest income
19

 
—
 %

223


   Equity loss in affiliates
(2,735
)
 
(0.7
)%
   Miscellaneous expense, net
(13,978
)
 
(3.4
)%
Total other expense, net
(16,696
)
 
(4.1
)%
Reorganization items, net
(20,989
)
 
(5.1
)%
Income tax benefit
39,881

 
9.7
 %
Net loss from continuing operations
$
(61,541
)
 
(15.0
)%
 
 
 
 
Cost of coal sales:
 
 
 
CAPP Operations
$
131,512

 
32.0
 %
NAPP Operations
$
171,074

 
41.6
 %
Trading and Logistics Operations
$
7,695

 
1.9
 %
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
2,189

 
 
NAPP Operations
4,654

 
 
Trading and Logistics Operations
157

 
 
 
 
 
 
Cost of coal sales per ton (1) :
 
 
 
CAPP Operations
$
60.08

 
 
NAPP Operations
$
36.76

 
 
Trading and Logistics Operations
$
49.01

 
 
 
 
 
 
Coal margin per ton (2) :
 
 
 
CAPP Operations
$
0.06

 
 
NAPP Operations
$
7.17

 
 
Trading and Logistics Operations
$
5.63

 
 
______________
(1)
Cost of coal sales per ton exclude costs associated with our All Other category.
(2)
Coal margin per ton for our reportable segments is calculated as coal sales realization per ton for our reportable segments less cost of coal sales per ton for our reportable segments. Coal margin per ton is not shown for our All Other category since it has no coal sales or coal production related to our continuing operations.

Cost of coal sales was $310.3 million , freight and handling costs were $52.1 million , other expenses were $2.2 million , depreciation, depletion and amortization was $66.1 million , amortization of acquired intangibles, net was $11.6 million and selling, general and administrative expenses were $29.6 million for the period from January 1, 2016 to July 25, 2016 .
Asset impairment and restructuring expenses of $3.1 million for the period from January 1, 2016 to July 25, 2016 consisted of $2.1 million of losses related to non-core property divestitures and $1.0 million related to severance expenses and other restructuring-related charges.
Reorganization items, net of $21.0 million for the period from January 1, 2016 to July 25, 2016 primarily consisted of realized gains and losses from the settlement of pre-petition liabilities, professional fees, and provisions for losses resulting from Old Alpha’s Restructuring.
Income tax benefit of $39.9 million was recorded for the period from January 1, 2016 to July 25, 2016 on a loss from continuing operations before income taxes of $101.4 million . The income tax rate differs from the federal statutory rate of 35% primarily due to the impact of the percentage depletion allowance and state income taxes, net of federal tax impact, partially offset by the impact of the non-deductible transaction costs.

224


Segment Adjusted EBITDA
Segment Adjusted EBITDA for our reportable segments is a non-GAAP financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Segment Adjusted EBITDA is presented because ANR’s management believes it is a useful indicator of the financial performance of our coal operations. The following table presents a reconciliation of net (loss) income to Adjusted EBITDA for the period from January 1, 2016 to July 25, 2016 :
 
Predecessor
 
Period from January 1, 2016 to July 25, 2016
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Net (loss) income from continuing operations
$
(26,407
)
 
$
(43,143
)
 
$
(1,452
)
 
$
9,461

 
$
(61,541
)
Interest expense
2

 
—

 
—

 
—

 
2

Interest income
(9
)
 
(10
)
 
—

 
—

 
(19
)
Income tax benefit
—

 
—

 
—

 
(39,881
)
 
(39,881
)
Depreciation, depletion and amortization
15,389

 
49,852

 
3

 
832

 
66,076

Non-cash stock compensation expense
34

 
61

 
—

 
498

 
593

Reorganization items, net
8,196

 
12,528

 
248

 
17

 
20,989

Asset impairment and restructuring
1,667

 
1,408

 
21

 
—

 
3,096

Accretion expense
1,753

 
3,252

 
—

 
—

 
5,005

Amortization of acquired intangibles, net
—

 
11,567

 
—

 
—

 
11,567

Adjusted EBITDA (1) (2)
$
625

 
$
35,515

 
$
(1,180
)
 
$
(29,073
)
 
$
5,887

______________
(1)
Our Adjusted EBITDA calculation has been modified to add back non-cash stock compensation expense and accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, we are no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $36.9 million for the period from January 1, 2016 to July 25, 2016.

CAPP Coal Operations. Adjusted EBITDA was $0.6 million for the period from January 1, 2016 to July 25, 2016 , driven by coal margin per ton of $0.06 , coal sales realization per ton of $60.14 and cost of coal sales per ton of $60.08 .
NAPP Coal Operations. Adjusted EBITDA was $35.5 million for the period from January 1, 2016 to July 25, 2016 , driven by coal margin per ton of $7.17 , coal sales realization per ton of $43.93 and cost of coal sales per ton of $36.76 .
Trading and Logistics Operations. Adjusted EBITDA was ($1.2) million for the period from January 1, 2016 to July 25, 2016 , driven by coal margin per ton of $5.63 , coal sales realization per ton of $54.64 and cost of coal sales per ton of $49.01 .
All Other category. Adjusted EBITDA was ($29.1) million for the period from January 1, 2016 to July 25, 2016 , primarily driven by wages and benefits expense of $8.9 million, incentive pay of $8.1 million, professional fees of $5.8 million, and rent, utilities and property costs of $5.0 million.

225


Year Ended December 31, 2015 (Predecessor)
The following tables summarize certain financial information relating to our operating results for the year ended December 31, 2015.
Revenues
 
Predecessor
 
 
(In thousands, except for per ton data)
Year Ended
December 31, 2015
 
% of Total Revenues
Revenues:
 
 
 
Coal revenues:
 
 
 
Steam
$
434,360

 
46.9
%
Met
381,650

 
41.2
%
Freight and handling revenues
97,237

 
10.5
%
Other revenues
12,774

 
1.4
%
Total revenues
$
926,021

 
100.0
%
 
 
 
 
Tons sold:
 
 
 
Steam
8,238

 


Met
5,501

 


Total
13,739

 


 
 
 
 
Coal sales realization per ton:
 
 
 
Steam
$
52.73

 


Met
$
69.38

 


Average
$
59.39

 



226


 
Predecessor
 
 
(In thousands, except for per ton data)
Year Ended
December 31, 2015
 
% of Total Revenues
Coal revenues (1) :
 
 
 
CAPP Operations
$
298,810

 
32.3
%
NAPP Operations
468,178

 
50.6
%
Trading and Logistics Operations
49,022

 
5.3
%
Total coal revenues
$
816,010

 
88.2
%
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
4,099

 


NAPP Operations
8,953

 


Trading and Logistics Operations
687

 


 
 
 
 
Coal sales realization per ton (1) :
 
 
 
CAPP Operations
$
72.90

 


NAPP Operations
$
52.29

 


Trading and Logistics Operations
$
71.36

 


Average
$
59.39

 


______________
(1)
Does not include any portion of the price paid by our export customers to transport coal to the relevant outbound shipping port.

Total revenues were $926.0 million for the twelve months ended December 31, 2015 and consisted of coal revenues of $816.0 million , freight and handling revenues of $97.2 million , and other revenues of $12.8 million . Our sales mix of met coal and steam coal based on volume was 40.0% and 60.0%, respectively, and our sales mix of met coal and steam coal based on coal revenues was 46.8% and 53.2%, respectively, for the twelve months ended December 31, 2015. Average coal sales realization per ton was $59.39 . CAPP, NAPP and Trading and Logistics Operations’ coal revenues comprised 32% , 51% , and 5% , respectively, of total revenues for the year ended December 31, 2017 .
Costs and Expenses
 
Predecessor
 
 
(In thousands, except for per ton data)
Year Ended
December 31, 2015
 
% of Total Revenues
Cost of coal sales (exclusive of items shown separately below)
$
709,993

 
76.7
 %
Freight and handling costs
97,237

 
10.5
 %
Depreciation, depletion and amortization
149,197

 
16.1
 %
Amortization of acquired intangibles, net
2,223

 
0.2
 %
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
44,158

 
4.8
 %
Asset impairment and restructuring
297,425

 
32.1
 %
Other expenses
(99
)
 
—
 %
Total costs and expenses
1,300,134

 
140.4
 %
Other (expense) income:
 
 
 
   Interest expense
(28
)
 
—
 %
   Interest income
4

 
—
 %
   Equity loss in affiliates
(7,712
)
 
(0.8
)%
   Miscellaneous expense, net
(20,904
)
 
(2.3
)%

227


Total other expense, net
(28,640
)
 
(3.1
)%
Reorganization items, net
(10,085
)
 
(1.1
)%
Income tax benefit
155,052

 
16.7
 %
Net loss from continuing operations
$
(257,786
)
 
(27.8
)%
 
 
 
 
Cost of coal sales:
 
 
 
CAPP Operations
$
301,852

 
32.6
 %
NAPP Operations
$
364,499

 
39.4
 %
Trading and Logistics Operations
$
43,642

 
4.7
 %
 
 
 
 
Tons sold:
 
 
 
CAPP Operations
4,099

 
 
NAPP Operations
8,953

 
 
Trading and Logistics Operations
687

 
 
 
 
 
 
Cost of coal sales per ton (1) :
 
 
 
CAPP Operations
$
73.64

 
 
NAPP Operations
$
40.71

 
 
Trading and Logistics Operations
$
63.53

 
 
 
 
 
 
Coal margin per ton (2) :
 
 
 
CAPP Operations
$
(0.74
)
 
 
NAPP Operations
$
11.58

 
 
Trading and Logistics Operations
$
7.83

 
 
_____________
(1)
Cost of coal sales per ton exclude costs associated with our All Other category.
(2)
Coal margin per ton for our reportable segments is calculated as coal sales realization per ton for our reportable segments less cost of coal sales per ton for our reportable segments. Coal margin per ton is not shown for our All Other category since it has no coal sales or coal production related to our continuing operations.
Cost of coal sales was $710.0 million , freight and handling costs were $97.2 million , other expenses were ($0.1) million , depreciation, depletion and amortization was $149.2 million for the twelve months ended December 31, 2015.
Amortization of acquired intangibles, net was $2.2 million and selling, general and administrative expenses were $44.2 million for the twelve months ended December 31, 2015.
Asset impairment and restructuring expenses were $297.4 million for the twelve months ended December 31, 2015 and consisted of impairment charges of $296.2 million and severance related expenses of $1.2 million and consisted primarily of severance and related benefits, professional fees for consulting, and reserves for other assets that may not be recoverable. See Critical Accounting Policies and Note 10 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for further information.
Reorganization items, net were ($10.1) million for the twelve months ended December 31, 2015 due to Old Alpha’s bankruptcy filing in August 2015. Refer to Note 22 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for disclosures related to reorganization items.
Income tax benefit of $155.1 million was recorded for the twelve months ended December 31, 2015 on a loss before income taxes of $412.8 million . The income tax rate differs from the federal statutory rate of 35% primarily due to the impact of the percentage depletion allowance and state income taxes, net of federal tax impact.

228


Segment Adjusted EBITDA
Segment Adjusted EBITDA for our reportable segments is a non-GAAP financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Segment Adjusted EBITDA is presented because management believes it is a useful indicator of the financial performance of our coal operations. The following table presents a reconciliation of net (loss) income to Adjusted EBITDA for the year ended December 31, 2015:
 
Predecessor
 
Year Ended December 31, 2015
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Net (loss) income from continuing operations
$
(118,543
)
 
$
(249,090
)
 
$
795

 
$
109,052

 
$
(257,786
)
Interest expense
28

 
—

 
—

 
—

 
28

Interest income
(3
)
 
(1
)
 
—

 
—

 
(4
)
Income tax benefit
—

 
—

 
—

 
(155,052
)
 
(155,052
)
Depreciation, depletion and amortization
42,869

 
104,479

 
13

 
1,836

 
149,197

Non-cash stock compensation expense
305

 
483

 
46

 
1,360

 
2,194

Reorganization items, net
3,438

 
6,306

 
336

 
5

 
10,085

Impairments
72,012

 
224,139

 
3

 
—

 
296,154

Restructuring
1,573

 
(420
)
 
118

 
—

 
1,271

Accretion expense
3,005

 
2,691

 
—

 
—

 
5,696

Mark-to-market adjustment for other derivatives
(2,635
)
 
(446
)
 
—

 
—

 
(3,081
)
Amortization of acquired intangibles, net
350

 
1,873

 
—

 
—

 
2,223

Adjusted EBITDA (1) (2)
$
2,399

 
$
90,014

 
$
1,311

 
$
(42,799
)
 
$
50,925

______________
(1)
Our Adjusted EBITDA calculation has been modified to add back non-cash stock compensation expense and accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, we are no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $67.7 million for the year ended December 31, 2015.

CAPP Coal Operations. Adjusted EBITDA was $2.4 million for the twelve months ended December 31, 2015, driven by negative coal margin per ton of $0.74 , coal sales realization per ton of $72.90 and cost of coal sales per ton of $73.64 .
NAPP Coal Operations. Adjusted EBITDA was $90.0 million for the twelve months ended December 31, 2015, driven by coal margin per ton of $11.58 , coal sales realization per ton of $52.29 and cost of coal sales per ton of $40.71 .
Trading and Logistics Operations. Adjusted EBITDA was $1.3 million for the twelve months ended December 31, 2015, driven by coal margin per ton of $7.83 , coal sales realization per ton of $71.36 and cost of coal sales per ton of $63.53 .
All Other category . Adjusted EBITDA was ($42.8) million for the twelve months ended December 31, 2015.
Liquidity and Capital Resources
Our primary liquidity and capital resource requirements stem from the cost of our coal production and purchases, our capital expenditures, our debt service, our reclamation obligations, our regulatory costs and settlements and associated costs. Our primary sources of liquidity are derived from sales of coal, our debt financing and miscellaneous revenues.

229


We believe that cash on hand and cash generated from our operations will be sufficient to meet our working capital requirements, anticipated capital expenditures, debt service requirements, acquisition-related obligations, and reclamation obligations for the next 12 months. We have relied on a number of assumptions in budgeting for our future activities. These include the costs for mine development to sustain capacity of our operating mines, our cash flows from operations, effects of regulation and taxes by governmental agencies, mining technology improvements and reclamation costs. These assumptions are inherently subject to significant business, political, economic, regulatory, environmental and competitive uncertainties, contingencies and risks, all of which are difficult to predict and many of which are beyond our control. We may need to raise additional funds more quickly if market conditions deteriorate; or one or more of our assumptions proves to be incorrect or if we choose to expand our acquisition, exploration, appraisal, or development efforts or any other activity more rapidly than we presently anticipate. We may decide to raise additional funds before we need them if the conditions for raising capital are favorable. We may seek to sell equity or debt securities or obtain additional bank credit facilities. The sale of equity securities could result in dilution to our stockholders. The incurrence of additional indebtedness could result in increased fixed obligations and additional covenants that could restrict our operations.
At June 30, 2018 , we had total liquidity of $314.4 million, including cash and cash equivalents of $199.3 million and $115.1 million of unused commitments available under the Asset-Based Revolving Credit Facility, subject to limitations described therein.
To secure our obligations under certain workers’ compensation and reclamation-related bonds, we are required to provide cash collateral. At June 30, 2018 , we had cash collateral in the amounts of $46.9 million and $15.2 million classified as short-term and long-term restricted cash and short-term and long-term deposits, respectively, on our balance sheet. Once the permits associated with the PRB transaction have been transferred, we estimate approximately $12.6 million, comprised of short-term restricted cash and short-term deposits, will be returned to operating cash. If the permit transfer process is not completed as expected, it could have material, adverse effects on us.
During the fourth quarter of 2017, we entered into an asset purchase agreement to sell a disposal group (comprised of property, plant and equipment and associated asset retirement obligations) at a preparation plant within our CAPP segment. From the date we entered into the asset purchase agreement through the transaction close date, the property, plant and equipment and associated asset retirement obligations were classified as held for sale in amounts representing the fair value of the disposal group. Upon permit transfer, the transaction closed on April 2, 2018. We paid $10.0 million in connection with the transaction, which was paid into escrow on March 27, 2018 and transferred to the buyer at the transaction close date, and expect to pay a series of additional cash payments in the aggregate amount of $1.5 million, per the terms stated in the agreement, and recorded a gain on sale of approximately $16.4 million within gain on disposal of assets within the Condensed Consolidated Statements of Operations.

230


Cash Flows
Cash, cash equivalents, and restricted cash increased by $52.2 million, increased by $129.5 million, increased by $22.7 million , increased by $171.3 million , increased by $16.2 million , and increased by $4.4 million over the six months ended June 30, 2018 and 2017, the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016 , the period from January 1, 2016 to July 25, 2016 , and the year ended December 31, 2015, respectively. The net change in cash, cash equivalents, and restricted cash was attributable to the following:
 
Successor
 
 
Predecessor
 
Six Months Ended June 30, 2018
 
Six Months Ended June 30, 2017
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Cash flows (in thousands):
 
 
 
 
 
 
 
 
 
 
 
 
Net cash provided by operating activities
$
115,606

 
$
186,214

 
$
314,260

 
$
21,459

 
 
$
77,029

 
$
155,052

Net cash (used in) provided by investing activities
(50,106
)
 
(50,027
)
 
(121,307
)
 
108,352

 
 
(25,029
)
 
(97,034
)
Net cash (used in) provided by financing activities
(13,288
)
 
(6,660
)
 
(170,282
)
 
41,478

 
 
(35,822
)
 
(53,585
)
Net increase in cash, cash equivalents, and restricted cash
$
52,212

 
$
129,527

 
$
22,671

 
$
171,289

 
 
$
16,178

 
$
4,433

Operating Activities
Net cash flows from operating activities consist of net income (loss) adjusted for non-cash items, such as depreciation, depletion and amortization, amortization of acquired intangibles, net, accretion of acquisition-related obligations discount, mark-to-market adjustments for warrants derivative liability and acquisition related obligations, equity loss in affiliates, accretion of asset retirement obligations, employee benefit plans, deferred income taxes, non-cash loss on extinguishment of debt, non-cash loss on disposals, asset impairment and restructuring charges, and changes in net working capital.
Net cash provided by operating activities for the six months ended June 30, 2018 was $115.6 million and was primarily attributable to net income of $130.7 million adjusted for depreciation, depletion and amortization of $22.8 million , amortization of acquired intangibles, net of $11.3 million , accretion of asset retirement obligations of $4.1 million , and stock-based compensation of $7.1 million , partially offset by a $16.5 million gain on disposal of assets. The change in our operating assets and liabilities of $54.7 million was primarily attributed to increases in trade accounts receivable and inventories, net, and decreases in trade accounts payable and other non-current liabilities.
Net cash provided by operating activities for the six months ended June 30, 2017 was $186.2 million and was primarily attributed to net income of $47.7 million adjusted for depreciation, depletion and amortization of $34.3 million , amortization of acquired intangibles, net of $34.2 million , accretion of asset retirement obligations of $11.0 million , a loss on extinguishment of debt of $38.7 million , partially offset by a $9.2 million gain on settlement of acquisition-related obligations. The change in our operating assets and liabilities of $8.9 million was primarily attributed to increases in trade accounts payable.
Net cash provided by operating activities for the year ended December 31, 2017 was $314.3 million and was primarily attributable to net income of $154.5 million adjusted for depreciation, depletion and amortization of $65.0 million , amortization of acquired intangibles, net of $59.0 million , accretion of asset retirement obligations of $21.3 million , a loss on early extinguishment of debt of $ 38.7 million , stock-based compensation of $20.4 million , and a loss on the sale of PRB of $36.1 million , partially offset by a $38.9 million gain on settlement of acquisition-related obligations and deferred income taxes of $78.7 million . The change in our operating assets and liabilities of $9.8 million was primarily attributed to increases in trade accounts payable of $ 6.1 million , decreases in trade accounts receivable of $34.8 million , decreases in other non-current assets of $24.5 million , and decreases in deposits of $38.4 million , partially offset by increases in prepaid expenses

231


and other current assets of $40.4 million , decreases in acquisition-related obligations of $22.8 million , and decreases in other non-current liabilities of $16.5 million .
Net cash provided by operating activities for the period from July 26, 2016 to December 31, 2016 was $21.5 million and was primarily attributed to net loss of $10.9 million adjusted for depreciation, depletion and amortization of $44.0 million, amortization of acquired intangibles, net of $61.3 million, and mark-to-market adjustment for warrants derivative liability of $34.0 million. The change in our operating assets and liabilities of $111.5 million was primarily attributed to increases in trade accounts receivable of $114.2 million, increases in inventories, net of $32.0 million, increases in long-term deposits of $55.4 million, and decreases in acquisition-related obligations of $9.3 million, partially offset by increases in trade accounts payable of $59.2 million and increases in accrued expenses and other current liabilities of $51.1 million.
Net cash provided by operating activities for the period from January 1, 2016 to July 25, 2016 was $77.0 million and was primarily attributed to net loss of $67.2 million adjusted for depreciation, depletion and amortization of $85.4 million, amortization of acquired intangibles, net of $11.6 million, non-cash employee benefit plan expense of $11.9 million, accretion of asset retirement obligations of $12.4 million and deferred income taxes of $34.9 million. The change in our operating assets and liabilities of $46.6 million was primarily attributed to decreases in trade accounts receivable of $42.8 million and decreases in inventories, net of $16.7 million.
Net cash provided by operating activities for the year ended December 31, 2015 was $155.1 million and was primarily attributed to net loss of $417.6 million adjusted for depreciation, depletion and amortization of $202.1 million, accretion of asset retirement obligations of $17.9 million, non-cash loss on disposal of property, plant, and equipment of $17.4 million, deferred income taxes of $250.7 million and asset impairment and restructuring of $558.7 million. The decrease in our operating assets and liabilities of $9.2 million was primarily attributed to decreases in trade accounts receivable of $41.4 million, offset by decreases in accrued expenses and other current liabilities of $31.8 million and decreases in other non-current liabilities of $16.3 million.
Investing Activities
Net cash used in investing activities for the six months ended June 30, 2018 was $50.1 million , driven by capital expenditures of $38.3 million and net payments on disposition of assets of $10.3 million .
Net cash used in investing activities for the six months ended June 30, 2017 was $50.0 million , driven by the purchase of additional ownership interest in equity affiliate of $13.3 million and capital expenditures of $35.5 million .
Net cash used in investing activities for the year ended December 31, 2017 was $121.3 million , driven by the purchase of additional ownership interest in equity affiliate of $13.3 million , capital expenditures of $83.1 million , capital contributions to equity affiliates of $5.7 million , and cash paid on sale of PRB of $21.4 million , partially offset by proceeds from sale of property, plant and equipment of $2.6 million .
Net cash provided by investing activities for the period from July 26, 2016 to December 31, 2016 was $108.4 million . The cash provided by investing activities for the period from July 26, 2016 to December 31, 2016 primarily included cash acquired in the Acquisition of $143.8 million offset by capital expenditures of $34.5 million, and capital contributions to equity affiliates of $2.7 million.
Net cash used in investing activities for the period from January 1, 2016 to July 25, 2016 was $25.0 million, driven by capital expenditures of $23.4 million and capital contributions to equity affiliates of $2.1 million, partially offset by proceeds from the sale of property, plant and equipment.
Net cash used in investing activities for the year ended December 31, 2015 was $97.0 million, primarily driven by capital expenditures of $59.5 million and acquisition of mineral rights under federal lease of $42.1 million, partially offset by proceeds from the sale of property, plant and equipment of $10.5 million.

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Financing Activities
Net cash used in financing activities for the six months ended June 30, 2018 was $13.3 million , primarily attributable to principal repayments of debt of $5.3 million , common stock repurchases and related expenses of $4.8 million , and principal repayments of notes payable of $2.9 million .
Net cash used in financing activities for the six months ended June 30, 2017 was $6.7 million , primarily attributable to principal repayments of debt of $357.5 million , debt extinguishment costs of $25.0 million , debt issuance costs of $14.4 million , and $4.5 million of debt amendment costs, partially offset by borrowings on debt of $396.0 million .
Net cash used in financing activities for the year ended December 31, 2017 was $170.3 million , primarily attributable to principal repayments of debt of $369.5 million , dividend payments of $100.7 million , debt extinguishment costs of $25.0 million , debt issuance costs of $14.4 million , and common stock repurchases and related expenses of $49.9 million . These amounts were partially offset by proceeds from borrowings on debt of $396.0 million .
Net cash provided by financing activities for the period from July 26, 2016 to December 31, 2016 was $41.5 million. The cash provided by financing activities for the period from July 26, 2016 to December 31, 2016 primarily included $42.5 million of proceeds from borrowings on debt.
Net cash used in financing activities for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 was $35.8 million and $53.6 million, respectively, and was primarily attributable to transfers to Old Alpha.
The major components of cash flows related to our discontinued operations are as follows:
 
Successor
 
 
Predecessor
 
Six Months Ended June 30, 2018
 
Six Months Ended June 30, 2017
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Depreciation, depletion and amortization
$
—

 
$
16,489

 
$
30,090

 
$
38,005

 
 
$
19,303

 
$
52,918

Capital expenditures
$
—

 
$
5,052

 
$
(10,420
)
 
$
(11,123
)
 
 
$
(8,071
)
 
$
(14,839
)
Acquisition of mineral rights under federal lease
$
—

 
$
—

 
$
—

 
$
—

 
 
$
—

 
$
(42,130
)
Other significant operating non-cash items related to discontinued operations:
 
 
 
 
 
 
 
 
 
 
 
 
  Mark-to-market adjustments for derivatives
$
—

 
$
—

 
$
—

 
$
—

 
 
$
—

 
$
4,683

Accretion of asset retirement obligations
$
—

 
$
6,044

 
$
11,341

 
$
6,019

 
 
$
7,400

 
$
12,202

Asset impairment and restructuring
$
—

 
$
—

 
$
—

 
$
—

 
 
$
659

 
$
261,274

Long-Term Debt
See Note 9 to Contura’s unaudited condensed consolidated financial statements and Note 13 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for disclosures on long-term debt.
Analysis of Material Debt Covenants
We were in compliance with all covenants under the Term Loan Credit Facility, as amended, and the Asset-Based Revolving Credit Agreement, as amended, as of June 30, 2018 . A breach of the covenants in the Term Loan Credit Facility, as amended, and the Asset-Based Revolving Credit Agreement, as amended, could result in a default under the terms of the agreement and the respective lenders could elect to declare all amounts borrowed due and payable.

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Pursuant to the Asset-Based Revolving Credit Agreement, as amended, during any Liquidity Period (capitalized terms as defined in the Asset-Based Revolving Credit Agreement, as amended), our Fixed Charge Coverage Ratio cannot be less than 1.00 to 1.00 as of the last day of any Test Period, commencing with the Test Period ended immediately preceding the commencement of such Liquidity Period. The Fixed Charge Coverage Ratio is calculated as (a) Consolidated EBITDA of the Company and its Restricted Subsidiaries for such period, minus non-financed Capital Expenditures (including Capital Expenditures financed with the proceeds of any Loans) paid or payable currently in cash by the Company or any of its Subsidiaries for such period to (b) the Fixed Charges of the Company and its Restricted Subsidiaries during such period. As of June 30, 2018 , we were not in a Liquidity Period.
In the event that there shall be Excess Cash Flow for any fiscal year, pursuant to the Term Loan Credit Facility, as amended, we will, no later than 130 days after the end of such fiscal year, prepay the Term Loan Credit Facility, as amended, based on the Total Leverage Ratio as follows:
Total Leverage Ratio (1)
Prepayment Amount  (2)
Equal to or greater than 2.50
75% of Excess Cash Flow
Less than 2.50 and greater than or equal to 1.25
50% of Excess Cash Flow
Less than 1.25
25% of Excess Cash Flow
______________
(1)
Total Leverage Ratio is calculated as the ratio of (i) Consolidated Net Total Debt on such date to (ii) Consolidated EBITDA (capitalized terms as defined in the Term Loan Credit Facility, as amended) for the period of the four consecutive fiscal quarters ending as of the date of the financial statements most recently delivered.
(2)
% of Excess Cash Flow is reduced by voluntary repayments of the Term Loan Credit Facility, as amended, as defined within the Term Loan Credit Facility, as amended.

Excess Cash Flow is calculated in accordance with our Term Loan Credit Facility Credit Agreement, as amended, and is equal to (i) the sum, without duplication, of Consolidated Net Income, the amount of all non-cash charges, the amount of the decrease, if any, in Consolidated Working Capital and the amount of non-cash losses on the disposition of property to the extent deducted in arriving at Consolidated Net Income minus (ii) the sum, without duplication, of the amount of all non-cash credits included in arriving at Consolidated Net Income, certain capital expenditures, certain amounts of regularly schedule principal payments of Indebtedness made in cash, the amount of the increase, if any, in Consolidated Working Capital and the aggregate amount of non-cash gains on the disposition of property to the extent included in arriving at Consolidated Net Income.
Consolidated Net Income is calculated in accordance with our Term Loan Credit Facility, as amended, and is equal to the net income determined in accordance with GAAP, excluding, without duplication, noncash compensation expenses related to common stock and other equity securities issued to employees, extraordinary and non-recurring gains and loss, income or losses from discontinued operations, any non-cash impairment charges or asset write-offs resulting from the application of certain ASC standards, net unrealized gains or losses resulting from non-cash foreign currency remeasurement gains or losses, net unrealized gains or losses results in such period from certain derivatives, non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles, any net income or loss of any person that is not a restricted subsidiary or that is accounted for by equity method accounting except to the extent the dividends or similar distributions are paid in cash to the specified person or restricted subsidiary, the net income (but not loss) of any restricted subsidiary to the extent that the declaration or payment of dividends or similar distributions by that restricted subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that restricted subsidiary or its stockholders (other than any restriction that has been waived or released), plus, without duplication, any cash dividends and/or distributions actually received by the Company or restricted subsidiary from any restricted subsidiary and/or Joint venture to the extent not already included therein.
Additionally, under the Term Loan Credit Facility, as amended, our ability to engage in activities such as incurring additional indebtedness, making investments and paying dividends is also tied to certain financial ratios, including Consolidated EBITDA as defined per the Term Loan Credit Facility. Consolidated EBITDA is defined as EBITDA further adjusted to exclude certain non-cash items, non-recurring items, and other adjustments permitted in calculating covenant

234


compliance under the Term Loan Credit Facility. EBITDA, a measure used by management to evaluate our ongoing operations for internal planning and forecasting purposes, is defined as net income (loss) from operations plus interest expense, income tax expense, amortization of acquired intangibles, net and depreciation, depletion and amortization, less interest income and income tax benefit. EBITDA is not a financial measure recognized under United States generally accepted accounting principles and does not purport to be an alternative to net income as a measure of operating performance or to cash flows from operating activities as a measure of liquidity. The amounts shown for EBITDA as presented may differ from amounts calculated and may not be comparable to other similarly titled measures used by other companies.
Consolidated EBITDA is calculated in accordance with our Term Loan Credit Facility, as amended, and is equal to Consolidated Net Income plus, without duplication (i) consolidated interest expense; (ii) to the extent deducted in computing such Consolidated Net Income, the sum of all income, franchise or similar taxes; (iii) depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of acquisition accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period); (iv) non-recurring restructuring costs, expenses and charges, including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and professional fees and stay and retention bonuses; provided that the amount of non-recurring restructuring costs, expenses and charges permitted to be added back pursuant to this clause (iv) for a four-quarter period shall not exceed 20% of Consolidated EBITDA for such period (calculated before giving effect to such add-back); (v) any expenses, costs or charges related to any equity offering, Investment permitted, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful); (vi) all non-recurring or unusual losses, charges and expenses (and less all non-recurring or unusual gains); (vii) all non-cash charges and expenses; (viii) any debt extinguishment costs; (ix) any amount of asset retirement obligations expenses; (x) all Transaction Costs incurred in connection with the Transactions contemplated hereby; (xi) transaction costs, fees and expenses incurred during such period in connection with any acquisition or disposition not prohibited hereunder or any issuance of debt or equity securities by the Borrower or any of its Restricted Subsidiaries, in each case, for such expenses; and (xii) commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income.
The calculation of Consolidated EBITDA is based on our results of operations in accordance with the Term Loan Credit Facility, as amended, and therefore, is different from Adjusted EBITDA presented elsewhere in this report. The calculation of Consolidated EBITDA for purposes of the Excess Cash Flow calculation is performed at the end of each fiscal year (commencing with the fiscal year ending December 31, 2017 for the portion of such fiscal year occurring after the Closing Date). For the fiscal year ending December 31, 2017, we had Excess Cash Flow as calculated per terms of the Term Loan Credit Facility, as amended, and we prepaid $3.3 million of our Term Loan Credit Facility outstanding principal balance on May 9, 2018.
Acquisition-Related Obligations
See Note 10 to Contura’s unaudited condensed consolidated financial statements and Note 14 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for additional details and disclosures on acquisition-related obligations.
Off-Balance Sheet Arrangements
In the normal course of business, we are a party to certain off-balance sheet arrangements. These arrangements include guarantees, operating leases, indemnifications and financial instruments with off-balance sheet risk, such as bank letters of credit and performance or surety bonds. Obligations related to these arrangements are not reflected in our Balance Sheet. However, the underlying liabilities that they secure, such as asset retirement obligations, workers’ compensation liabilities, and royalty obligations, are reflected in our Balance Sheet.
We are required to provide financial assurance in order to perform the post-mining reclamation required by our mining permits, pay our federal production royalties, pay workers’ compensation claims under workers’ compensation laws in

235


various states, pay federal black lung benefits, and perform certain other obligations. In order to provide the required financial assurance, we generally use surety bonds for post-mining reclamation and workers’ compensation obligations. We can also use bank letters of credit to collateralize certain obligations.
As of June 30, 2018 , we had outstanding surety bonds with a total face amount of $391.8 million to secure various obligations and commitments, including $237.2 million related to the PRB. To secure our obligations under these bonds, we had cash collateral in the amounts of $46.9 million and $15.2 million classified as short-term and long-term restricted cash and short-term and long-term deposits, respectively, on our balance sheet as of June 30, 2018 . Once the permits associated with the PRB Transaction have been transferred, the Company estimates approximately $12.6 million comprised of short-term restricted cash and short-term deposits will be returned to operating cash.
As of June 30, 2018 , we had real property collateralizing $26.7 million of reclamation bonds.
We meet frequently with our surety providers and have discussions with certain providers regarding the extent of and the terms of their participation in the program. These discussions may cause us to shift surety bonds between providers or to alter the terms of their participation in our program. To the extent that surety bonds become unavailable or our surety bond providers require additional collateral, we would seek to secure our obligations with letters of credit, cash deposits or other suitable forms of collateral. Our failure to maintain, or inability to acquire, surety bonds or to provide a suitable alternative would have a material adverse effect on our liquidity. These failures could result from a variety of factors including lack of availability, higher cost or unfavorable market terms of new surety bonds, and the exercise by third-party surety bond issuers of their right to refuse to renew the surety.
Other
As a regular part of our business, we review opportunities for, and engage in discussions and negotiations concerning, the acquisition or disposition of coal mining and related infrastructure assets and interests in coal mining companies, and acquisitions or dispositions of, or combinations or other strategic transactions involving companies with coal mining or other energy assets. When we believe that these opportunities are consistent with our strategic plans and our acquisition or disposition criteria, we will make bids or proposals and/or enter into letters of intent and other similar agreements. These bids or proposals, which may be binding or non-binding, are customarily subject to a variety of conditions and usually permit us to terminate the discussions and any related agreement if, among other things, we are not satisfied with the results of due diligence. Any acquisition opportunities we pursue could materially affect our liquidity and capital resources and may require us to incur indebtedness, seek equity capital or both. There can be no assurance that additional financing will be available on terms acceptable to us, or at all.

236


Contractual Obligations
The following is a summary of our significant contractual obligations as of June 30, 2018 (in thousands):
 
Remainder of 2018
 
2019
 
2020
 
2021
 
2022
 
After 2022
 
Total
Long-term debt  (1)
$
2,000

 
$
4,000

 
$
4,000

 
$
4,000

 
$
4,000

 
$
363,677

 
$
381,677

Other debt (2)
622

 
1,389

 
119

 
113

 
30

 
—

 
2,273

Acquisition-related obligations (3)
11,000

 
14,500

 
15,000

 
2,000

 
—

 
—

 
42,500

Equipment purchase commitments
22,608

 
3,891

 
—

 
—

 
—

 
—

 
26,499

Transportation commitments
1,494

 
3,072

 
3,102

 
—

 
—

 
—

 
7,668

Operating leases
455

 
796

 
749

 
738

 
182

 
326

 
3,246

Minimum royalties
446

 
1,121

 
1,044

 
1,044

 
697

 
909

 
5,261

Coal purchase commitments (4)
437,257

 
86,713

 
1,568

 
—

 
—

 
—

 
525,538

Total
$
475,882

 
$
115,482

 
$
25,582

 
$
7,895

 
$
4,909

 
$
364,912

 
$
994,662

______________
(1)
Long-term debt includes principal amounts due in the years shown. Cash interest payable on this obligation, with an interest rate of 7.10%, would be approximately $13,800 in the remainder of 2018, $27,200 in 2019, $27,000 in 2020, $26,600 in 2021, $26.4 million in 2022, and $31,500 after 2022.
(2)
Includes capital lease obligation principal amounts of $0.2 million in the remainder of 2018, $200 in 2019, $100 in 2020, $100 in 2021, and $30 in 2022. Cash interest payable on these obligations with interest rates ranging between 5.20% and 9.50%, would be approximately $24 in the remainder of 2018, $27 in 2019, $12 in 2020, and $5 in 2021. Other debt includes principal amounts of $500 in 2018 and $1,200 in 2019.
(3)
Certain guarantees are excluded from the table above, for which the timing of payments are not estimable. See Note 10 to Contura’s unaudited condensed consolidated financial statements and Note 14 to the Contura audited financial statements included elsewhere in this joint proxy statement for further disclosures related to these guarantees.
(4)
Includes an estimated $47,900 in the remainder of 2018 and $70,700 in 2019 related to contractually committed variable priced tons from vendors with historical performance resulting in less than 20% of the committed tonnage being delivered.

Additionally, we have long-term liabilities relating to asset retirement obligations, black lung benefits, life insurance benefits, and workers’ compensation benefits. The table below reflects the estimated undiscounted cash flows for these obligations:
(in thousands)
Remainder of 2018
 
2019
 
2020
 
2021
 
2022
 
After 2022
 
Total
Asset retirement obligation
$
6,807

 
$
5,899

 
$
12,893

 
$
11,476

 
$
10,726

 
$
209,919

 
$
257,720

Black lung benefit obligation
72

 
20

 
20

 
20

 
102

 
47,750

 
47,984

Life insurance benefit obligation
417

 
750

 
698

 
685

 
676

 
17,506

 
20,732

Workers’ compensation benefit obligation
2,423

 
3,801

 
2,582

 
2,010

 
1,615

 
10,389

 
22,820

Total
$
9,719

 
$
10,470

 
$
16,193

 
$
14,191

 
$
13,119

 
$
285,564

 
$
349,256

We expect to spend between $72 million and $82 million on capital expenditures during 2018.

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Critical Accounting Policies and Estimates 
The preparation of financial statements in accordance with GAAP requires management to make estimates and assumptions that affect reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. We base our estimates on historical experience and on various other factors and assumptions, including the current economic environment that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. We evaluate our estimates and assumptions on an ongoing basis and adjust such estimates and assumptions as facts and circumstances require. Foreign currency and energy markets, and fluctuations in demand for steel products have combined to increase the uncertainty inherent in such estimates and assumptions. As future events and their effects cannot be determined with precision, actual results may differ significantly from these estimates. Changes in these estimates resulting from continuing changes in the economic environment will be reflected in the financial statements in future periods.
Business Combinations.  We account for our business combinations under the acquisition method of accounting. The total cost of acquisitions is allocated to the underlying identifiable net tangible and intangible assets based on their respective estimated fair values. Determining the fair value of assets acquired and liabilities assumed requires management’s judgment, the utilization of independent valuation experts and often involves the use of significant estimates and assumptions with respect to the timing and amounts of future cash inflows and outflows, discount rates, market prices and asset lives, among other items.
Reclamation.  Our asset retirement obligations arise from the federal Surface Mining Control and Reclamation Act of 1977 and similar state statutes, which require that mine property be restored in accordance with specified standards and an approved reclamation plan. Significant reclamation activities include reclaiming refuse and slurry ponds, reclaiming the pit and support acreage at surface mines, sealing portals at deep mines and the treatment of water. We determine the future cash flows necessary to satisfy our reclamation obligations on a permit-by-permit basis based upon current permit requirements and various estimates and assumptions, including estimates of disturbed acreage, cost estimates, and assumptions regarding productivity. We are also faced with increasingly stringent environmental regulation, much of which is beyond our control, which could increase our costs and materially increase our asset retirement obligations. Estimates of disturbed acreage are determined based on approved mining plans and related engineering data. Cost estimates are based upon third-party costs. Productivity assumptions are based on historical experience with the equipment that is expected to be utilized in the reclamation activities. Our asset retirement obligations are initially recorded at fair value. In order to determine fair value, we use assumptions including a discount rate and third-party margin. Each is discussed further below:
•
Discount Rate.  Asset retirement obligations are initially recorded at fair value. We utilize discounted cash flow techniques to estimate the fair value of our obligations. We base our discount rate on the rates of treasury bonds with maturities similar to expected mine lives and adjust for our credit standing as necessary after considering funding and assurance provisions. Changes in our credit standing could have a material impact on our asset retirement obligations.
•
Third-Party Margin.  The measurement of an obligation at fair value is based upon the amount a third-party would demand to perform the obligation. Because we plan to perform a significant amount of the reclamation activities with internal resources, a third-party margin was added to the estimated costs of these activities. This margin was estimated based upon our historical experience with contractors performing similar types of reclamation activities. The inclusion of this margin will result in a recorded obligation that is greater than our estimates of our cost to perform the reclamation activities. If our cost estimates are accurate, the excess of the recorded obligation over the cost incurred to perform the work will be recorded as a gain at the time that reclamation work is completed.
On at least an annual basis, we review our reclamation liabilities and make necessary adjustments for permit changes as granted by state authorities, additional costs resulting from accelerated mine closures, and revisions to cost estimates and productivity assumptions, to reflect current experience and updated plans. At  June 30, 2018 , we had recorded asset retirement obligation liabilities of $60.9 million, including amounts reported as current, and $1.3 million asset retirement obligations liabilities classified as held for sale. While the precise amount of these future costs cannot be determined with certainty, as of  June 30, 2018 , we estimate that the aggregate undiscounted cost of final mine closures is approximately $257.7 million.

238


Income Taxes.  We recognize deferred tax assets and liabilities using enacted tax rates for the effect of temporary differences between the book and tax bases of recorded assets and liabilities. Deferred tax assets are reduced by a valuation allowance if it is more likely than not that some portion or all of the deferred tax assets will not be realized. In evaluating our ability to recover our deferred tax assets within the jurisdiction in which they arise, we consider all available positive and negative evidence, including the expected reversals of deferred tax liabilities, projected future taxable income, taxable income available via carryback to prior years, tax planning strategies, and results of recent operations. We assess the realizability of our deferred tax assets, including scheduling the reversal of our deferred tax assets and liabilities, to determine the amount of valuation allowance needed. Scheduling the reversal of deferred tax asset and liability balances requires judgment and estimation. We believe the deferred tax liabilities relied upon as future taxable income in our assessment will reverse in the same period and jurisdiction and are of the same character as the temporary differences giving rise to the deferred tax assets that will be realized. Due to our formation through the acquisition of the core coal assets of Old Alpha as part of the Old Alpha Restructuring, a lack of history of operating results, and ownership change limitations applicable to net operating loss and other carryforwards, a full valuation allowance is currently recorded against the net deferred tax assets, excluding the alternative minimum tax credit carryforwards (“AMT Credits”), of ours.
Asset Impairment.  U.S. GAAP requires that a long-lived asset group that is held and used should be reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of the long-lived asset group might not be recoverable. Testing long-lived assets for impairment after indicators of impairment have been identified is a two-step process. Step one compares the net undiscounted cash flows of an asset group to its carrying value. If the carrying value of an asset group exceeds the net undiscounted cash flows of that asset group, step two is performed whereby the fair value of the asset group is estimated and compared to its carrying amount. The amount of impairment, if any, is equal to the excess of the carrying value of an asset group over its estimated fair value. The amount of impairment, if any, is allocated to the long-lived assets on a pro-rata basis, except that the carrying value of the individual long-lived assets are not reduced below their estimated fair value. Long-lived assets located in a close geographic area are grouped together for purposes of impairment testing when, after considering revenue and cost interdependencies, circumstances indicate the assets are used together to produce future cash flows. Our asset groups generally consist of the assets and applicable liabilities of one or more mines and preparation plants and associated coal reserves for which cash flows are largely independent of cash flows of other mines, preparation plants and associated reserves.
Acquisition-Related Obligations.  We entered into various settlement agreements with Old Alpha and/or the Alpha bankruptcy successor ANR and third parties as part of the Alpha Restructuring. We assumed acquisition-related obligations through those settlement agreements which became effective on July 26, 2016, the effective date of Alpha’s Plan of Reorganization. These acquisition-related obligations include financial instruments which were fair valued on a recurring basis until their settlement in the fourth quarter of 2017. Observable transactions were not available to aid in determining the fair value. Therefore, the fair value was derived by using the expected present value approach in which estimated cash flows were discounted using a risk-free interest rate adjusted for market risk. See Note 10 and Note 12 to Contura’s unaudited condensed consolidated financial statements and Note 14 and Note 17 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for disclosures related to acquisition-related obligations.
New Accounting Pronouncements.  See Note 1 to Contura’s unaudited condensed consolidated financial statements and Note 2 to the Contura audited financial statements included elsewhere in this joint proxy statement and prospectus for disclosures related to new accounting policies adopted.

239


MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF HOLDINGS
The following discussion and analysis of Holdings’ financial condition and results of operations should be read in conjunction with Holdings’ Financial Statements and the accompanying notes included elsewhere in this joint proxy statement and prospectus.
Formation and Overview
On June 13, 2016, Holdings was incorporated pursuant to the restructuring transactions described in the Plan of Reorganization. Holdings holds 4,223,400 shares of ANR’s Class C-2 common stock, which it accounts for using the equity method. The initial carrying value assigned to such investment was $0.2 million, as discussed below. Holdings does not own any assets other than such shares of Class C-2 common stock, does not have, and has never had since its incorporation, any employees, has not engaged in any activities or business or generated any revenues, and has not incurred any material liabilities or obligations (other than a related party payable discussed below), in each case, other than those incident to its ownership of Class C-2 common stock.
For additional information regarding Holdings’ investment in ANR, see the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of ANR”, which discusses the financial condition and results of operations of ANR.
Results of Operations
The following summarizes certain financial information relating to Holdings’ operating results that have been derived from Holdings’ financial statements for the relevant periods.
Six Months Ended June 30, 2018 and the Six Months Ended June 30, 2017
Holdings reported a net loss of $0.5 million for the six months ended June 30, 2018, compared to no net income (loss) for the six months ended June 30, 2017. Holding’s net loss during the six months ended June 30, 2018 is attributable to $0.5 million of general and administrative expenses, consisting of advisory and professional fees incurred by Holdings and paid by ANR in connection with the proposed mergers, resulting in a corresponding related party payable. The carrying value of Holdings equity investment in ANR remained $0 at June 30, 2017 and June 30, 2018.
Year Ended December 31, 2017 and the Period from July 26, 2016 through December 31, 2016
Holdings reported no net income for the year ended December 31, 2017, compared to a net loss of $0.2 million for the five month period from July 26, 2016 through December 31, 2016 due to a reduction in the carrying value of Holdings’ investment in ANR, from $0.2 million to $0. The carrying value of such investment remained $0 through December 31, 2017.
Liquidity and Capital Resources
As of June 30, 2018, Holdings did not have any (i) assets (other than the 4,223,400 shares of ANR’s Class C-2 common stock) or material liabilities (other than a related party payable of $0.5 million that was incurred in connection with the proposed mergers and is expected to be settled in connection with the proposed mergers), (ii) agreements, arrangements or understandings with any person to obtain funds through bank loans, lines of credit or any other sources, (iii) any commitments with any person for any capital expenditures or (iv) any off-balance sheet arrangements. As a holding company, Holdings is dependent upon the ability of ANR and its subsidiaries to make cash available to Holdings, which may be limited by ANR’s contractual limitations, including limitations under ANR’s credit facilities. Accordingly, for additional information regarding the liquidity and capital resources of Holdings, see the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of ANR — Liquidity and Capital Resources”.

240


MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF ANR
The following discussion and analysis of ANR’s financial condition and results of operations should be read in conjunction with ANR’s Consolidated Financial Statements and the accompanying notes included elsewhere in this joint proxy statement and prospectus. Management’s discussion and analysis of ANR’s financial condition and results of operations has been recast for all periods presented to reflect the retrospective adoption of ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash and ASU 2017-07, Compensation-Retirement Benefits (Topic 715): Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost. This discussion and analysis contains forward-looking statements. The words “expects,” “anticipates,” “believes,” “intends,” “plans” and similar expressions identify forward-looking statements. In addition, any statements which refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements. None of ANR, Holdings or Contura undertakes any obligation to publicly disclose any revisions to these forward-looking statements to reflect events or circumstances occurring subsequent to the date of this joint proxy statement and prospectus. These forward-looking statements are subject to risks and uncertainties, including, without limitation, those risks and uncertainties discussed in this section, as well as any risks and uncertainties discussed under the “Risk Factors” section of this joint proxy statement and prospectus. In addition, new risks emerge from time to time and it is not possible for ANR’s management to predict all such risk factors or to assess the impact of such risk factors on ANR’s business. Accordingly, ANR’s future results may differ materially from historical results or from those discussed or implied by these forward-looking statements. Given these risks and uncertainties, the reader should not place undue reliance on these forward-looking statements.
Non-GAAP Financial Measures
The discussion below contains “non-GAAP financial measures.” These are financial measures which either exclude or include amounts that are not excluded or included in the most directly comparable measures calculated and presented in accordance with generally accepted accounting principles in the United States (“GAAP”). Specifically, ANR presents the non-GAAP financial measure “Adjusted EBITDA.” Adjusted EBITDA does not purport to be an alternative to net income (loss) as a measure of operating performance. The presentation of this measure should not be considered in isolation from, or as a substitute for, analysis of ANR’s results as reported under GAAP.
ANR’s management uses non-GAAP financial measures to supplement GAAP results to provide a more complete understanding of the factors and trends affecting the business than GAAP results alone. Because not all companies use identical calculations, the presentations of these measures may not be comparable to other similarly titled measures of other companies and can differ significantly from company to company depending on long-term strategic decisions regarding capital structure, the tax jurisdictions in which companies operate, and capital investments.
Formation
On July 26, 2016, ANR, the successor to Alpha Natural Resources, Inc. (“Resources”), and its affiliates officially emerged from bankruptcy as a reorganized private company. On the Effective Date, ANR applied fresh start accounting in accordance with ASC 852. In addition to applying fresh start accounting, ANR’s consolidated financial statements reflect all impacts of the transactions as a result of the POR. The effects of the POR include the cancellation of previously outstanding debt and the issuance of new equity by ANR.
In addition, upon emergence from bankruptcy, Resources effectively split into two entities. ANR emerged, and pursuant to an asset purchase agreement (“APA”) that closed simultaneously with the effectiveness of the POR, Resources sold a number of its assets to Contura, which was a new entity established by Resources’ former First Lien Lenders. Due to the above transactions, the current ANR financial statements are not comparable to the prior year’s financial statements of Resources.
Overview
ANR is primarily engaged in the business of extracting, processing and marketing steam and metallurgical coal from surface and deep mines, and selling its coal to electric utilities, steel and coke producers, industrial customers, and coal brokers. ANR is also involved in marketing coal produced by others to supplement its production.

241


At June 30, 2018, ANR’s coal operations consisted of fourteen deep mines, seven surface mines, nine preparation plants and two barge loadouts located in West Virginia. At June 30, 2018, ANR had approximately 2,700 employees, of which 43 were represented by affiliates of the United Mine Workers of America (“UMWA”).
For the six months ended June 30, 2018 and 2017, sales of steam coal from continuing operations were 3.1 million tons and 3.1 million tons, respectively, and accounted for approximately 45% and 44%, respectively, of ANR’s coal sales volume. Sales of met coal, which generally sells at a premium over steam coal, were 3.8 million tons and 4.0 million tons (including broker sales), respectively, and accounted for approximately 55% and 56%, respectively, of ANR’s coal sales volume for the six months ended June 30, 2018 and 2017. For the year ended December 31, 2017 and the period from July 26, 2016 through December 31, 2016 sales of steam coal from continuing operations were 6.4 million tons and 2.7 million tons, respectively, and accounted for approximately 45% and 50%, respectively, of ANR’s coal sales volume. Sales of met coal (including broker sales) were 7.8 million tons and 2.7 million tons, respectively, and accounted for approximately 55% and 50%, respectively, of ANR’s coal sales volume for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016.
In addition, ANR generates other revenues from equipment sales, rentals, and royalties on coal and natural gas. ANR also records freight and handling revenue within coal revenues for freight and handling services provided in delivering coal to certain customers, which are a component of the contractual selling price.
ANR’s primary expenses are operating supply costs, repair and maintenance expenditures, cost of purchased and broker coal, royalties, wages and benefits, post-employment benefits, freight and handling costs, and taxes incurred in selling ANR’s coal. Historically, ANR’s cost of coal sales per ton has been lower for sales of coal produced and processed by ANR company operations than for sales of broker coal (which is coal that ANR purchases from third parties and does not process prior to resale).
Business Developments
On October 23, 2017 ANR closed the sale of substantially all idle assets in Kentucky, Tennessee, and West Virginia to Lexington Coal Company (“LCC”), with funding for the transaction provided under a new $150 million credit facility. The conveyance included real property, substantial reclamation equipment and the transfer of ongoing royalty payment obligations associated with the properties.
As a result of the transaction, ANR was relieved of the future asset retirement obligations (“ARO”) on the properties. ANR paid LCC approximately $199 million in cash at closing and became obligated to pay an additional $94 million in installment payments to assist in the fulfillment of bonding, reclamation, water treatment and other obligations. ANR also assigned its right to the $32 million reclamation funding receivable from Contura to LCC. The $199 million of cash was comprised of approximately $140 million of cash from the credit facility, and approximately $59 million from restricted cash accounts of ANR.
The $94 million of installment payments is comprised of an $80 million note payable to LCC over a five-year period, with payments of $17.5 million beginning July 26, 2018 and for three additional years on the July 26 th anniversary date, plus a final payment of $10 million on July 26, 2022. The third component relates to ANR’s obligation to contribute $14 million into LCC’s water treatment restricted cash accounts from 2018 through 2023. Contributions to these accounts of $1.5 million are due during 2018 and increase to $2.5 million in each of the years 2019 through 2023.
In addition to the LCC transaction, there were other smaller transactions where idle properties were disposed of in 2017 and in early 2018. Based upon ANR management’s determination that the idled property dispositions meet all of the accounting criteria, the results of operations and the loss on disposition are reported as discontinued operations in the current and prior period presented in ANR’s Consolidated Financial Statements.

242


The following tables summarize certain financial information relating to the discontinued operations.
Revenues
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
Coal revenues:
 
 
 
 
 
 
 
Steam
$
—

 
$
12,250

 
$
(12,250
)
 
-100.0
 %
Met
$
—

 
$
3,563

 
$
(3,563
)
 
-100.0
 %
Tons sold:
 
 
 
 
 
 
 
Steam
—

 
244

 
(244
)
 
-100.0
 %
Met
—

 
31

 
(31
)
 
-100.0
 %
Coal sales realization per ton:
 
 
 
 
 
 
 
Steam
$
—

 
$
50.20

 
$
(50.20
)
 
-100.0
 %
Met
$
—

 
$
114.94

 
$
(114.94
)
 
-100.0
 %
 
Year Ended
December 31, 2017
 
% of Total Revenues
 
Period from July 26 through Dec 31, 2016
 
% of Total Revenues
(In thousands, except for per ton data)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Coal revenues:
 
 
 
 
 
 
 
Steam
$
30,425

 
2.4
%
 
$
7,506

 
1.9
%
Met
$
8,913

 
0.7
%
 
$
—

 
0.0
%
Tons sold:
 
 
 
 
 
 
 
Steam
602

 
 
 
140

 
 
Met
86

 
 
 
—

 
 
Coal sales realization per ton:
 
 
 
 
 
 
 
Steam
$
50.54

 
 
 
$
53.61

 
 
Met
$
103.64

 
 
 
$
—

 
 
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
2017
 
$ or Tons
 
%
 
 
 
 
 
 
 
 
Cost of coal sales:
$
1,447

 
$
30,759

 
$
(29,312
)
 
-95.3
 %
Tons sold:
—

 
275

 
(275
)
 
-100.0
 %
Cost of coal sales per ton:
NA

 
$
111.85

 
NA

 
NA

Coal margin per ton (1) :
NA

 
$
(54.35
)
 
NA

 
NA


243


 
Year Ended
December 31, 2017
 
% of Total Revenues
 
Period from July 26 through Dec 31, 2016
 
% of Total Revenues
(In thousands, except for per ton data)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cost of coal sales:
$
63,485

 
5.0
%
 
$
27,640

 
7.0
%
Tons sold:
688

 
 
 
140

 
 
Cost of coal sales per ton:
$
92.27

 
 
 
$
197.43

 
 
Coal margin per ton (1) :
$
(35.09
)
 
 
 
$
(143.82
)
 
 
______________
(1)
Coal margin per ton is calculated as coal sales realization per ton less cost of coal sales per ton.

Factors Affecting ANR’s Results of Continuing Operations
Sales Volume. ANR earns revenues primarily through the sale of coal produced at its operations and resale of coal purchased from third parties. During the six months ended June 30, 2018, ANR sold 3.7 million tons of met coal, 3.1 million tons of steam coal and 0.1 million tons of met coal in broker coal sales. During the six months ended June, 2017, ANR sold 3.5 million tons of met coal, 3.1 million tons of steam coal and 0.5 million tons of met coal in broker coal sales. During the year ended December 31, 2017, ANR sold 6.9 million tons of met coal, 6.4 million tons of steam coal and 1.0 million tons of met coal in broker coal sales. During the period from July 26, 2016 to December 31, 2016, ANR sold 2.5 million tons of met coal, 2.7 million tons of steam coal and 0.3 million tons of broker met coal.
Costs. ANR’s primary expenses are for operating supply costs, repair and maintenance expenditures, cost of purchased coal (which is coal that is purchased from a third party that is processed at ANR’s facilities before being sold), royalties, current wages and benefits, freight and handling costs and taxes incurred in selling ANR’s coal. Principal goods and services ANR uses in its operations include maintenance and repair parts and services, electricity, fuel, roof control and support items, explosives, tires, conveyance structures, ventilation supplies and lubricants.
In addition, ANR’s cost of coal sales includes idle mine costs. The following table shows ANR’s cost of coal sales and idle mine costs per ton. ANR calculates adjusted cost of coal sales as cost of coal sales less idle mine costs.
 
Six Months Ended June 30, 2018
Per Ton
 
Six Months Ended June 30, 2017
Per Ton
 
Year Ended
December 31, 2017 Per Ton
 
Period From July 26, 2016 to December 31, 2016 Per Ton
 
 
 
 
 
 
 
 
Cost of coal sales:
 
 
 
 
 
 
 
Total continuing operations
$
65.33

 
$
64.68

 
$
65.98

 
$
62.34

Idle mine costs
$
0.23

 
$
0.19

 
$
(0.21
)
 
$
3.38

Adjusted cost of coal sales, continuing operations
$
65.10

 
$
64.49

 
$
66.19

 
$
58.96

 
 
 
 
 
 
 
 
Adjusted cost of coal sales by component:
 
 
 
 
 
 
 
Company operations
$
64.49

 
$
61.06

 
$
62.80

 
$
58.40

Broker coal sales
$
125.87

 
$
112.79

 
$
112.36

 
$
69.22

Results of Operations
ANR reported net income from continuing operations of $63.4 million and income from discontinued operations of $1.2 million for the six months ended June 30, 2018. ANR reported net income from continuing operations of $58.9 million and a loss from discontinued operations of $35.2 million for the six months ended June 30, 2017.

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Six Months Ended June 30, 2018 and the Six Months Ended June 30, 2017
The following tables show the details for continuing operations. ANR believes that results from continuing operations are more representative of its ongoing operations as they exclude the negative impact from, and loss on sale of, properties divested.
Revenues
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
% of Total Revenues
 
2017
 
%of Total Revenues
 
$ or Tons
 
%
Revenues:
 
 
 
 
 
 
 
 
 
 
 
Coal Revenues:
 
 
 
 
 
 
 
 
 
 
 
Metallurgical
$
421,830

 
69.5
%
 
$
403,908

 
63.2
%
 
$
17,922

 
4.4
 %
Steam
173,083

 
28.5
%
 
157,621

 
24.7
%
 
15,462

 
9.8
 %
Broker
8,814

 
1.5
%
 
55,688

 
8.7
%
 
(46,874
)
 
-84.2
 %
Freight and handling revenues
—

 
0.0
%
 
17,446

 
2.7
%
 
(17,446
)
 
-100.0
 %
Other Revenues
2,992

 
0.5
%
 
4,318

 
0.7
%
 
(1,326
)
 
-30.7
 %
Total Revenues
$
606,719

 
100.0
%
 
$
638,981

 
100.0
%
 
$
(32,262
)
 
-5.0
 %
 
 
 
 
 
 
 
 
 
 
 
 
Tons sold:
 
 
 
 
 
 
 
 
 
 
 
Metallurgical
3,728

 
 
 
3,490

 
 
 
238

 
6.8
 %
Steam
3,061

 
 
 
3,112

 
 
 
(51
)
 
-1.6
 %
Broker
68

 
 
 
470

 
 
 
(402
)
 
-85.5
 %
Total
6,857

 
 
 
7,072

 
 
 
(215
)
 
-3.0
 %
 
 
 
 
 
 
 
 
 
 
 
 
Coal sales realization per ton:
 
 
 
 
 
 
 
 
 
 
 
Metallurgical
$
113.15

 
 
 
$
115.73

 
 
 
$
(2.58
)
 
-2.2
 %
Steam
$
56.54

 
 
 
$
50.65

 
 
 
$
5.89

 
11.6
 %
Broker
$
129.62

 
 
 
$
118.49

 
 
 
$
11.13

 
9.4
 %
Average
$
88.05

 
 
 
$
87.28

 
 
 
$
0.77

 
0.9
 %
Tons shipped from continuing operations were 6.9 million for the six months ended June 30, 2018 and 7.1 million for the six months ended June 30, 2017. Coal revenue from continuing operations was $603.7 million, or $88.05 per ton, for the six months ended June 30, 2018 and $617.2 million, or $87.28 per ton, for the six months ended June 30, 2017. Freight and handling revenues have been adjusted in the June 30, 2018 numbers as required by ASC 606 and therefore the per ton realizations are not comparable between years.
Freight and handling revenues consist of shipping and handling costs invoiced to coal customers and paid to third-party carriers. These revenues are directly offset by freight and handling costs. Freight and handling revenues for the six months ended June 30, 2018 are included with coal revenues as required by ASC 606.
Other revenues consist of rail rebates, royalty and rental income, parts and equipment sales and repair and scrap sales.

245


Costs and Expenses
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands, except for per ton data)
2018
 
% of Total Revenues
 
2017
 
% of Total Revenues
 
$
 
%
Cost of coal sales (exclusive of items shown separately below)
$
447,969

 
73.8
 %
 
$
457,450

 
71.6
 %
 
$
(9,481
)
 
-2.1
 %
Loss on disposition of property, plant and equipment
5,823

 
1.0
 %
 
1,350

 
0.2
 %
 
4,473

 
331.3
 %
Freight and handling costs
17,677

 
2.9
 %
 
17,446

 
2.7
 %
 
231

 
1.3
 %
Other expenses
—

 
0.0
 %
 
751

 
0.1
 %
 
(751
)
 
-100.0
 %
Depreciation, depletion and amortization
18,120

 
3.0
 %
 
24,790

 
3.9
 %
 
(6,670
)
 
-26.9
 %
Amortization of acquired coal supply agreements, net
143

 
0.0
 %
 
5,125

 
0.8
 %
 
(4,982
)
 
-97.2
 %
Accretion of asset retirement obligations
8,147

 
1.3
 %
 
8,594

 
1.3
 %
 
(447
)
 
-5.2
 %
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
27,839

 
4.6
 %
 
16,708

 
2.6
 %
 
11,131

 
66.6
 %
Mark-to-market adjustment - acquisition-related obligations
8,706

 
1.4
 %
 
3,091

 
0.5
 %
 
5,615

 
181.7
 %
Total costs and expenses
534,424

 
88.0
 %
 
535,305

 
83.7
 %
 
(881
)
 
-0.2
 %
Other (expense) income:
 
 
 
 
 
 
 
 
 
 
 
Interest expense
(14,027
)
 
-2.3
 %
 
(8,033
)
 
-1.3
 %
 
(5,994
)
 
74.6
 %
Interest income
1,794

 
0.3
 %
 
1,461

 
0.2
 %
 
333

 
22.8
 %
Loss on early extinguishment of debt
—

 
—

 
(16,348
)
 
-2.6
 %
 
16,348

 
-100.0
 %
Miscellaneous income, net
3,289

 
0.5
 %
 
2,603

 
0.4
 %
 
686

 
26.4
 %
Total other expense, net
(8,944
)
 
-1.5
 %
 
(20,317
)
 
-3.3
 %
 
11,373

 
-56.0
 %
Income tax expense
—

 
0.0
 %
 
(24,424
)
 
-3.8
 %
 
24,424

 
-100.0
 %
Cost of coal sales per ton
$
65.33

 
 
 
$
64.68

 
 
 
$
0.65

 
1.0
 %
Coal margin per ton
$
22.72

 
 
 
$
22.60

 
 
 
$
0.12

 
0.5
 %
Cost of coal sales. The cost of coal sales per ton for continuing operations (including idle properties) was $65.33 for the six months ended June 30, 2018, and $64.68 for the six months ended June 30, 2017. The increase in cost of coal sales from continuing operations was driven by increases in wages, benefits, repairs and maintenance, offset in part by lower coal purchases. Sales-related costs that fluctuate with changes in selling price totaled approximately 12% of ANR’s cost of coal sales.
Freight and handling costs. Freight and handling costs consist of shipping and handling costs invoiced to coal customers and paid to third party carriers. These costs are directly offset by freight and handling revenues, which are included with coal revenues for the six months ended June 30, 2018 as required by ASC 606.
Depreciation, depletion and amortization. Depreciation, depletion and amortization from continuing operations was $18.3 million for the six months ended June 30, 2018 and $29.9 million for the six months ended June 30, 2017. The six months ended June 30, 2018 included $0.1 million in amortization of acquired coal supply agreements compared to $5.1 million in the six months ended June 30, 2017, as most of the acquired coal supply agreements have been completed. In addition, the

246


six months ended June 30, 2017 included approximately $12.4 million in depreciation for short-lived assets that became fully depreciated in July 2017.
Accretion of asset retirement obligations. Accretion of asset retirement obligations from continuing operations was $8.1 million for the six months ended June 30, 2018 and $8.6 million for the six months ended June 30, 2017.
Selling, general and administrative. Selling general and administrative expenses were $27.8 million for the six months ended June 30, 2018 and $16.7 million for the six months ended June 30, 2017. The increase in selling, general and administrative expense for the six months ended June 30, 2018 was driven primarily by a $3.2 million increase in professional fees incurred to accomplish ANR’s stock reclassification initiative and $8.2 million in merger-related costs.
Mark to market adjustment. The fair value of the contingent revenue obligation was increased by $8.7 million to $51.6 million for the six months ended June 30, 2018, compared to an increase of $3.1 million to $30.8 million for the six months ended June 30, 2017.
Interest expense, net. Interest expense, net was $12.2 million for the six months ended June 30, 2018, compared to $6.6 million for the six months ended June 30, 2017, due to the change in ANR’s debt structure.
Loss on early extinguishment of debt. During the six months ended June 30, 2017, ANR recorded a loss on extinguishment of debt of $16.3 million to write off unamortized debt fees upon the payoff of the original credit facility which ANR entered into on July 26, 2016 with Citicorp, N.A. (“Citi”) as administrative agent. The facility included a term loan of $125.0 million and $21.8 million in debt fees were incurred upon closing.
Miscellaneous income, net. Miscellaneous income, net was $3.3 million for the six months ended June 30, 2018, compared to $2.6 million for the six months ended June 30, 2017. Miscellaneous income mainly consists of credits for pension income.
Income taxes. Income tax expense from continuing operations was $0 for the six months ended June 30, 2018 compared to $24.4 million for the six months ended June 30, 2017 due primarily to projected utilization of net operating losses in the 2018 period.

247


Adjusted EBITDA
Adjusted EBITDA is a non-GAAP financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Adjusted EBITDA is presented because ANR’s management believes it is a useful indicator of the financial performance of ANR’s coal operations. The following tables presents a reconciliation of net income from continuing operations to Adjusted EBITDA for the six months ended June 30, 2018 and 2017:
 
Six Months Ended June 30,
 
Increase (Decrease)
(In thousands)
2018
 
2017
 
$
 
%
Net income from continuing operations
$
63,351

 
$
58,935

 
$
4,416

 
7.5
%
Interest expense
14,027

 
8,033

 
5,994

 
74.6
%
Interest income
(1,794
)
 
(1,461
)
 
(333
)
 
22.8
%
Income tax expense
—

 
24,424

 
(24,424
)
 
(100.0
%)
Depreciation, depletion and amortization
18,120

 
24,790

 
(6,670
)
 
(26.9
%)
Amortization of acquired coal supply agreements, net
143

 
5,125

 
(4,982
)
 
(97.2
%)
Accretion of asset retirement obligations
8,147

 
8,594

 
(447
)
 
(5.2
%)
Merger related and share reclassification expenses
11,407

 
—

 
11,407

 
100.0
%
Loss on early extinguishment of debt
—

 
16,348

 
(16,348
)
 
(100.0
%)
Mark-to-market adjustment - acquisition-related obligations
8,706

 
3,091

 
5,615

 
181.7
%
Adjusted EBITDA
$
122,107

 
$
147,879

 
$
(25,772
)
 
(17.4
%)
Year Ended December 31, 2017
The following tables summarize certain financial information relating to ANR’s operating results that have been derived from ANR’s consolidated financial statements for the year ended December 31, 2017. Comparisons to the July 26, 2016 through December 31, 2016 period are omitted as this period only includes results for five months.

248


Revenues
(In thousands, except for per ton data)
Year Ended December 31, 2017
 
%of Total
Revenues
Revenues:
 
 
 
Coal Revenues:
 
 
 
Metallurgical
$
745,472

 
60.3
%
Steam
327,008

 
26.4
%
Broker
114,402

 
9.3
%
Freight and handling revenues
38,987

 
3.2
%
Other revenues
10,469

 
0.8
%
Total revenues
$
1,236,338

 
100.0
%
 
 
 
 
Tons sold:
 
 
 
Metallurgical
6,893

 
 
Steam
6,408

 
 
Broker
974

 
 
Total
14,275

 
 
 
 
 
 
Coal sales realization per ton:
 
 
 
Metallurgical
$
108.15

 
 
Steam
$
51.03

 
 
Broker
$
117.46

 
 
Average
$
83.14

 
 
Revenues. Total revenues were $1,236.3 million for the year ended December 31, 2017 and consisted of coal revenues of $1,186.9 million, freight and handling revenues of $39.0 million and other revenues of $10.4 million. ANR’s sales mix of met coal and steam coal based on volume was 54.9% and 45.1%, respectively, and sales mix of met coal and steam coal based on coal revenues was 72.3% and 27.7%, respectively, for the year ended December 31, 2017. Average coal sales realization per ton was $83.14.

249


Costs and Expenses
(In thousands, except for per ton data)
Year Ended December 31, 2017
 
%of Total
Revenues
Cost of coal sales (exclusive of items shown separately below)
$
941,819

 
76.2
 %
Loss on disposition of property, plant and equipment
604

 
0.0
 %
Freight and handling costs
38,987

 
3.2
 %
Other expenses
759

 
0.1
 %
Depreciation, depletion and amortization
14,710

 
1.2
 %
Amortization of acquired coal supply agreements, net
7,684

 
0.6
 %
Accretion of asset retirement obligations
22,733

 
1.8
 %
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
34,465

 
2.8
 %
Mark-to-market adjustment - acquisition-related obligations
15,112

 
1.2
 %
Total costs and expenses
1,076,873

 
87.1
 %
Other (expense) income:
 
 
 
Interest expense
(14,504
)
 
-1.2
 %
Interest income
2,788

 
0.2
 %
Loss on early extinguishment of debt
(16,348
)
 
-1.3
 %
Miscellaneous income, net
3,373

 
0.3
 %
Total other expense, net
(24,691
)
 
-2.0
 %
Income tax expense
(17,584
)
 
-1.4
 %
 
 
 
 
Cost of coal sales per ton
$
65.98

 
 
Coal margin per ton
$
17.16

 
 
Cost of coal sales. The cost of coal sales for continuing operations (including idle properties) was $65.98 per ton.
Freight and handling costs. Freight and handling costs consist of shipping and handling costs invoiced to coal customers and paid to third party carriers. These costs are directly offset by freight and handling revenues.
Depreciation, depletion and amortization. For the year ended December 31, 2017, depreciation, depletion and amortization from continuing operations was $22.4 million, including $7.7 million for amortization of acquired coal supply agreements, net. Depreciation expense decreased in 2017 compared to annualized 2016 as numerous short-lived assets became fully depreciated in July 2017.
Accretion of asset retirement obligations. Accretion of asset retirement obligations from continuing operations was $22.7 million for the year ended December 31, 2017.
Selling, general and administrative. For the year ended December 31, 2017, selling general and administrative expenses were $34.5 million. Included in these costs were additional professional fees incurred to accomplish ANR’s stock reclassification initiative. For the year ended December 31, 2017 ANR incurred $6.8 million in costs associated with the bankruptcy case, new computer systems and software, and professional fees related to ANR’s financings.
Mark to market adjustment. For the year ended December 31, 2017, the fair value of the contingent revenue obligation was increased by $15.1 million to $42.9 million. The increase was primarily the result of an increase in forecasted revenues and a lower discount applied due to the timing of expected future expenditures.
Interest expense, net. For the year ended December 31, 2017, interest expense, net was $11.7 million.

250


Loss on early extinguishment of debt. For the year ended December 31, 2017, ANR recorded a loss on extinguishment of debt of $16.3 million to write off unamortized debt fees upon the payoff of the original credit facility which ANR entered into on July 26, 2016 with Citicorp, N.A. (“Citi”) as administrative agent. The facility included a term loan of $125.0 million and $21.7 million in debt fees were incurred upon closing.
Miscellaneous income, net. For the year ended December 31, 2017, miscellaneous income, net was $3.4 million. The total includes a net $3.8 million credit for pension income and black lung benefit costs.
Income taxes. For the year ended December 31, 2017, ANR recorded income tax expense of $17.6 million. The 13% effective tax rate was lower than the federal statutory rate of 35% due primarily to the refundable minimum tax credits and the benefits of percentage depletion.
Adjusted EBITDA
Adjusted EBITDA is a non-GAAP financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Adjusted EBITDA is presented because ANR’s management believes it is a useful indicator of the financial performance of ANR’s coal operations. The following table presents a reconciliation of net income from continuing operations to Adjusted EBITDA for the year ended December 31, 2017:
(In thousands)
Year Ended December 31, 2017
Net income from continuing operations
$
117,190

Interest expense
14,504

Interest income
(2,788
)
Loss on extinguishment of debt
16,348

Income tax expense
17,584

Depreciation, depletion and amortization
14,710

Amortization of acquired coal supply agreements, net
7,684

Accretion of asset retirement obligations
22,733

Mark-to-market adjustment - acquisition-related obligations
15,112

Adjusted EBITDA
$
223,077

Period from July 26, 2016 through December 31, 2016
The following tables summarize certain financial information relating to ANR’s operating results that have been derived from ANR’s consolidated financial statements for the period from July 26, 2016 through December 31, 2016. Also included is certain information relating to the operating results as a percentage of total revenues.
ANR and its affiliates officially emerged from bankruptcy as a reorganized private company on July 26, 2016.

251


Revenues
(In thousands, except for per ton data)
Period from
July 26, 2016 to
December 31, 2016
 
% of Total
Revenues
Revenues:
 
 
 
Coal Revenues:
 
 
 
Metallurgical
$
214,639

 
54.0
%
Steam
138,598

 
34.9
%
Broker
19,487

 
4.9
%
Freight and handling revenues
19,095

 
4.8
%
Other revenues
5,654

 
1.4
%
Total revenues
$
397,473

 
100.0
%
 
 
 
 
Tons sold:
 
 
 
Metallurgical
2,459

 
 
Steam
2,720

 
 
Broker
280

 
 
Total
5,459

 
 
 
 
 
 
Coal sales realization per ton:
 
 
 
Metallurgical
$
87.29

 
 
Steam
$
50.96

 
 
Broker
$
69.60

 
 
Average
$
68.28

 
 
Revenues. Total revenues were $397.5 million for the period from July 26, 2016 through December 31, 2016 and consisted of coal revenues of $372.7 million, freight and handling revenues of $19.1 million and other revenues of $5.7 million. ANR’s sales mix of met coal and steam coal based on volume was 50.2% and 49.8%, respectively, and sales mix of met coal and steam coal based on coal revenues was 62.8% and 37.2%, respectively, for the period from July 26, 2016 through December 31, 2016. Average coal sales realization per ton was $68.28.

252


Costs and Expenses
(In thousands, except for per ton data)
Period from
July 26, 2016 to
December 31, 2016
 
% of Total
Revenues
Cost of coal sales (exclusive of items shown separately below)
$
340,289

 
85.6
 %
Gain on disposition of property, plant and equipment
(2,955
)
 
-0.7
 %
Freight and handling costs
19,095

 
4.8
 %
Other expenses
355

 
0.1
 %
Depreciation, depletion and amortization
19,828

 
5.0
 %
Amortization of acquired coal supply agreements, net
6,162

 
1.6
 %
Accretion of asset retirement obligations
9,762

 
2.5
 %
Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
14,174

 
3.6
 %
Impairment - contingent credit support
21,954

 
5.5
 %
Mark-to-market adjustment - acquisition-related obligations
14,647

 
3.7
 %
Total costs and expenses
443,311

 
111.5
 %
Other (expense) income:
 
 
 
Interest expense
(9,549
)
 
-2.4
 %
Interest income
692

 
0.2
 %
Miscellaneous income, net
2,836

 
0.7
 %
Total other expense, net
(6,021
)
 
-1.5
 %
Income tax benefit
18,214

 
4.6
 %
 
 
 
 
Cost of coal sales per ton
$
62.34

 
 
Coal margin per ton
$
5.94

 
 
Cost of coal sales. For the July 26 through December 31, 2016 period, the cost of coal sales for continuing operations (including idle properties) was $62.34 per ton.
Freight and handling costs. Freight and handling costs consist of shipping and handling costs invoiced to coal customers and paid to third party carriers. These costs are directly offset by freight and handling revenues.
Depreciation, depletion and amortization. For the July 26 through December 31, 2016 period, depreciation, depletion and amortization from continuing operations was $26.0 million, including $6.2 million for amortization of acquired coal supply agreements, net.
Accretion of asset retirement obligations. Accretion of asset retirement obligations from continuing operations was $9.8 million for the July 26 through December 31, 2016 period.
Selling, general and administrative. For the July 26 through December 31, 2016 period, selling general and administrative expenses were $14.2 million.
Mark to market adjustment. For the July 26 through December 31, 2016 period, the fair value of the contingent revenue obligation was increased by $14.6 million to $27.7 million.
Interest expense, net. For the July 26 through December 31, 2016 period, interest expense, net was $8.9 million.
Miscellaneous income, net. For the July 26 through December 31, 2016 period, miscellaneous income, net was $2.8 million. The total includes a net $3.3 million credit for pension income and black lung benefit costs.

253


Income taxes. For the July 26 through December 31, 2016 period, ANR recorded an income tax benefit of $18.2 million. ANR’s effective income tax rate from continuing operations for the period ended December 31, 2016 was 35.1%.
Adjusted EBITDA
Adjusted EBITDA is a non-GAAP financial measure. This non-GAAP financial measure is presented as a supplemental measure and is not intended to replace financial performance measures determined in accordance with GAAP. Moreover, this measure is not calculated identically by all companies and therefore may not be comparable to similarly titled measures used by other companies. Adjusted EBITDA is presented because ANR’s management believes it is a useful indicator of the financial performance of ANR’s coal operations. The following table presents a reconciliation of net loss from continuing operations to Adjusted EBITDA for the period from July 26, 2016 through December 31, 2016:
(In thousands)
Period from
July 26, 2016 to December 31, 2016
Net loss from continuing operations
$
(33,645
)
Interest expense
9,549

Interest income
(692
)
Income tax benefit
(18,214
)
Depreciation, depletion and amortization
19,828

Amortization of acquired coal supply agreements, net
6,162

Accretion of asset retirement obligations
9,762

Impairment - contingent credit support
21,954

Mark-to-market adjustment - acquisition-related obligations
14,647

Adjusted EBITDA
$
29,351

Liquidity and Capital Resources
Liquidity
As of June 30, 2018, ANR had total unrestricted cash of $72.9 million. The following recent transactions have had an impact on ANR’s liquidity and debt levels:
•
On April 28, 2017, ANR paid off its initial $125.0 million term loan that was entered into at the time of ANR’s emergence from bankruptcy. ANR used $68.5 million of restricted cash and $56.5 million of unrestricted cash to repay the principal.
•
On April 28, 2017, ANR entered into a new $200.0 million Letter of Credit Facility with Citi. This facility replaces the Letter of Credit component of the Credit Facility.
•
On May 1, 2017, ANR entered into a Receivable Purchase Agreement (the “Receivable Purchase Agreement”) with Hitachi Capital America Corp. (“HCA”). This agreement provides ANR with up to $60.0 million of liquidity from the sale of receivables.
•
On June 20, 2017, ANR entered into a reinsurance contract for ANR’s self-insured workers compensation program in the State of Kentucky. ANR paid $43.5 million out of its operating account to enter into the contract, and the reinsurance company will be responsible for all future Kentucky workers compensation payments up to the insured amount. This resulted in the cancellation of a previously posted letter of credit with the State of Kentucky and the return to ANR of $53.5 million of collateral backing this letter of credit.
•
On October 23, 2017, ANR closed the sale of substantially all idle assets in Kentucky, Tennessee, and West Virginia to LCC with funding for the transaction under a new $150.0 million credit facility.

254


•
On March 16, 2018, ANR made a mandatory payment of $35.3 million on the credit facility from the funds received from the sale of receivables to HCA.
•
On May 31, 2018, ANR made a mandatory payment of $12.7 million on the credit facility as a result of the 65% excess cash flow provision in the agreement.
•
On June 27, 2018 ANR made a $9 million contribution to the pension plan.
As of June 30, 2018, ANR had a total of $316.6 million in restricted cash compared to $362.4 million as of December 31, 2017. ANR’s restricted cash is used for collateral under ANR’s prior Credit Facility, collateral for ANR’s letters of credit that support ANR’s bonding and workers compensation programs, funds for the Global Reclamation Agreements accounts with the states and federal regulatory agencies, and funds for pre-emergence bankruptcy costs paid when approved by the Bankruptcy Court.
The following chart summarizes ANR’s restricted cash (in thousands):
Restricted cash backing certain liabilities
Balance at
June 30, 2018
Asset Retirement Obligations
$
172,284

Worker Compensation and Back Lung Obligations
93,065

Bankruptcy Liability Obligations
20,143

Other
31,087

 
$
316,579

Cash Flows
ANR’s primary source of cash is generated by sales of coal to ANR’s customers. The price of coal received can change dramatically based on market factors and will directly affect this source of cash. ANR’s primary uses of cash include the payment of ordinary mining expenses to mine coal, capital expenditures, and labor and benefit payments. Ordinary mining expenses are driven by the cost of supplies, including steel prices and diesel fuel. Benefits payments include payments for workers compensation and black lung benefits paid over time as claims are submitted. However, ANR is required to pay these benefits when due and is not required to set aside cash for these payments. ANR has posted surety bonds secured by letters of credit or issued letters of credit with state regulatory departments to guarantee these payments.
ANR’s capital expenditures were $39.3 million for the six months ended June 30, 2018. ANR’s management expects that cash on hand and cash flow from operations will be sufficient to meet ANR’s operating expenses and capital expenditures for the next 12 months.
Cash, cash equivalents, and restricted cash decreased by $18.9 million, decreased by $116.2 million, decreased by $228.0 million and decreased by $400.1 million over the six months ended June 30, 2018 and 2017, the year ended December 31, 2017 and the period from July 26, 2016 through December 31, 2016, respectively. The net change in cash, cash equivalents, and restricted cash was attributable to the following:
 
Six Months Ended
June 30, 2018
 
Six Months Ended
June 30, 2017
 
Year Ended
December 31, 2017
 
July 26, 2016 through December 31, 2016
Cash flows (in thousands)
 
 
 
 
 
 
 
Net Cash provided by (used in) operating activities
$
73,739

 
$
35,869

 
$
25,339

 
$
(395,879
)
Net Cash used in investing activities
(36,299
)
 
(21,663
)
 
(257,870
)
 
(2,498
)
Net Cash provided by (used in) financing activities
(56,331
)
 
(130,435
)
 
4,521

 
(1,690
)
Net decrease in cash, cash equivalents and restricted cash
$
(18,891
)
 
$
(116,229
)
 
$
(228,010
)
 
$
(400,067
)

255


Operating Activities
Net cash provided by operating activities reflects net income adjusted for non-cash charges and changes in net working capital, plus changes in non-current operating assets and liabilities.
Net cash provided by operating activities was $73.7 million for the six months ended June 30, 2018. ANR had net income of $64.6 million in the six months ended June 30, 2018. For purposes of the reconciliation of ANR’s net income to cash provided by operations, an increase of $46.1 million was for non-cash charges during the six months ended June 30, 2018. For the six months ended June 30, 2018, ANR’s net income as adjusted for non-cash charges was decreased by $37.0 million as a result of changes in ANR’s operating assets and liabilities. The change in ANR’s operating assets and liabilities included a $62.9 million decrease in accounts receivable, of which $35.0 million, net were sold under the ANR’s Receivable Purchase Agreement and used to repay debt, an $18.5 million increase in inventories, a $14.8 million decrease in prepaid expenses and other current assets, a $16.2 million decrease in accounts payable, a $45.9 million decrease in accrued expenses and other current liabilities, and $29.6 million in payments under employee benefit obligations.
Net cash provided by operating activities was $35.9 million for the six months ended June 30, 2017. ANR had net income of $23.7 million in the six months ended June 30, 2017. For purposes of the reconciliation of ANR’s net income to cash provided by operations, an increase of $82.9 million was for non-cash charges during the six months ended June 30, 2017. For the six months ended June 30, 2017, ANR’s net income as adjusted for non-cash charges was decreased by $70.7 million as a result of changes in ANR’s operating assets and liabilities. The change in ANR’s operating assets and liabilities included a $26.3 million increase in inventories, a $21.6 million increase in accounts payable, $24.3 million in payments under employee benefit obligations, and $20.3 million in payments for asset retirement obligations.
Net cash provided by operating activities was $25.3 million for the year ended December 31, 2017. ANR had a net loss of $38.9 million in the year ended December 31, 2017. In reconciling ANR’s net income to cash provided by operations, an increase of $254.6 million was for non-cash charges during the year ended December 31, 2017. For the year ended December 31, 2017, ANR’s net income as adjusted for non-cash charges was decreased by $190.4 million as a result of changes in ANR’s operating assets and liabilities. The decrease in cash from ANR’s operating assets and liabilities included a $25.2 million increase in trade accounts receivable, an $18.9 million increase in inventories, a $55.1 million increase in other current and non-current assets, a $39.5 million change in employee benefit obligations ($46.1 million in payments, offset by $6.5 million in net expense), $36.2 million in payments for asset retirement obligations, and a $28.2 million decrease in non-current liabilities, partially offset by a $23.9 million increase in accounts payable.
Net cash used in operating activities was $395.9 million for the July 26, 2016 through December 31, 2016 period. ANR had a net loss of $57.1 million and cash increased by $58.0 million for non-cash charges during the July 26, 2016 to December 31, 2016 period. ANR’s net income as adjusted for non-cash charges was decreased by $396.8 million as a result of changes in ANR’s operating assets and liabilities. The decrease in cash from its operating assets and liabilities included a $31.3 million increase in trade accounts receivable, a $30.1 million decrease in accounts payable, and $336.8 million in bankruptcy settlement payments, partially offset by a $33.8 million decrease in other receivables.
Investing Activities
Net cash used in investing activities was $36.3 million for the six months ended June 30, 2018 and consisted primarily of payments for capital expenditures. Capital expenditures of $39.3 million primarily consisted of new and replacement mine equipment and projects to improve the production of ANR’s mining operations.
Net cash used in investing activities was $21.7 million for the six months ended June 30, 2017 and consisted primarily of $24.5 million in payments for capital expenditures, which was partially offset by proceeds from the sale of property, plant and equipment of $2.8 million.
Net cash used in investing activities was $257.9 million for the year ended December 31, 2017 and consisted primarily of $205.1 million in payments on disposal of property, plant, and equipment, $57.4 million in payments for capital expenditures, partially offset by proceeds from sale of property, plant and equipment of $4.6 million.

256


Net cash used in investing activities was $2.5 million for the July 26, 2016 through December 31, 2016 period and consisted primarily of $4.3 million in payments for capital expenditures, which was partially offset by proceeds from sale of property, plant and equipment of $1.8 million.
Financing Activities
Net cash used in financing activities was $56.3 million for the six months ended June 30, 2018 and consisted primarily of the repayments of the Credit Facility.
Net cash used in financing activities was $130.4 million for the six months ended June 30, 2017 and consisted primarily of repayment of the original term loan on April 28, 2017.
Net cash provided by financing activities was $4.5 million for the year ended December 31, 2017 and consisted primarily of proceeds from the new term loan offset by repayment of the Credit Facility.
Net cash used in financing activities was $1.7 million for the July 26, 2016 through December 31, 2016 period.
The major components of cash flows related to ANR’s discontinued operations are as follows:
(in thousands)
Six Months Ended
June 30, 2018
 
Six Months Ended
June 30, 2017
 
Year Ended
December 31, 2017
 
Period From
July 26, 2016 to December 31, 2016
Net income (loss)
$
1,270

 
$
(35,188
)
 
$
(156,076
)
 
$
(23,472
)
Income tax benefit
—

 
(467
)
 
(41,288
)
 
—

Depreciation, depletion and amortization
—

 
6,092

 
7,119

 
(15,571
)
Accretion of asset retirement obligations
140

 
23,881

 
35,272

 
19,385

(Gain) loss on disposition of property, plant and equipment
(2,857
)
 
(9,264
)
 
130,826

 
—

Payments of asset retirement obligations
(55
)
 
(15,554
)
 
(28,155
)
 
(10,096
)
Changes in operating assets and liabilities, net
—

 
—

 
10,000

 
453

Net cash used in operating activities
$
(1,502
)
 
$
(30,500
)
 
$
(42,302
)
 
$
(29,301
)
 
 
 
 
 
 
 
 
Capital expenditures
$
—

 
$
—

 
$
—

 
$
(75
)
Payments on disposition of property, plant and equipment
(2,502
)
 
—

 
(205,053
)
 
—

Proceeds from sale of property, plant and equipment
—

 
1,930

 
2,223

 
—

Net cash provided by (used in) investing activities
$
(2,502
)
 
$
1,930

 
$
(202,830
)
 
$
(75
)

257


Long-Term Debt
The following chart reflects the components of ANR’s debt (in thousands):
 
June 30, 2018
$150,000 Term Loan
$
90,740

LCC Note Payable
80,000

LCC Water Treatment Stipulation
13,250

Other
1,612

Total before debt issuance costs and debt discounts
185,602

Unamortized debt issuance costs and debt discount related to Term Loans
(6,958
)
Unamortized discount on LCC Note Payable based on an imputed interest rate of 21.1%
(23,615
)
Unamortized discount on LCC Water Treatment Stipulation based on an imputed interest rate of 21.1%
(5,045
)
Total long-term debt
$
149,984

On October 18, 2017, ANR entered into a credit facility (the “New Credit Facility”) with Cantor Fitzgerald Securities as administrative agent, which included a $150.0 million term loan that bears interest at a rate of LIBOR plus 700 basis points. Interest is paid on a monthly basis at the end of each month. In connection with the New Credit Facility, $9.3 million of debt issuance costs and fees were incurred, including $4.5 million in the form of an original issue discount. Unamortized fees and debt discount of $7.0 million remain on the Consolidated Balance Sheet at June 30, 2018. Mandatory principal payments of $3.8 million are required quarterly. ANR paid $3.8 million in December of 2017 with annual scheduled payments remaining of $15.0 million due in 2018, 2019, and 2020 and $101.3 million due in 2021. In addition, ANR must make a prepayment of principal in an amount equal to the excess (if any) of 65% of excess cash flow for each quarter end through the maturity date. Therefore, depending on future cash flow, the principal may be paid off earlier than scheduled.
As a result of the LCC transaction, ANR executed an $80.0 million note payable to LCC over a five-year period, with payments of $17.5 million beginning July 26, 2018 and for three additional years on the July 26 th anniversary date, plus a final payment of $10.0 million on July 26, 2022. The $80.0 million note payable has no stated interest rate, but for accounting purposes, as of October 23, 2017 $49.9 million and $30.1 million were considered principal and original discount, respectively.
As a result of the LCC transaction, ANR executed an agreement to contribute $14.0 million into LCC’s water treatment restricted cash accounts from 2018 through 2023. Contributions of $1.5 million are due during 2018 and increase to $2.5 million in each of the years 2019 through 2023. For accounting purposes, as of October 23, 2017 $7.9 million and $6.1 million were considered principal and original discount, respectively.
Both the LCC note payable and the LCC water treatment stipulation debt instruments have no stated interest. However, ANR discounted expected cash flows using an interest rate that equates to a risk-free interest rate adjusted for the effect of ANR’s credit standing to impute interest expense.
Analysis of Material Debt Covenants
A financial covenant was put into place along with the New Credit Facility that requires ANR to maintain at least $35.0 million in liquidity at all times. The company was in compliance with this covenant as of June 30, 2018.
Off-Balance Sheet Arrangements
In the normal course of business, ANR is a party to certain off-balance sheet arrangements including guarantees and financial instruments with off-balance sheet risk, such as bank letters of credit, performance or surety bonds, and other guarantees and indemnities related to the obligations of affiliated entities which are not reflected in ANR’s Consolidated Balance Sheets. As of June 30, ANR had outstanding surety bonds with a total face amount of $183.4 million to secure various obligations and commitments and had self-bonding guarantees in the amount of $37.1 million. The amounts above

258


include bonds for permits that have been sold and are in the process of being transferred to new owners. After all the transfers are completed ANR expects to have outstanding surety bonds with a total face amount of $151.5 million to secure various obligations and commitments and no self-bonding guarantees. As of June 30, 2018, ANR had outstanding letters of credit amounting to $182.7 million backing surety bonds and workers compensation obligations.
Contractual Obligations
The following is a summary of ANR’s significant contractual obligations as of June 30, 2018:
(in thousands)
2018
 
2019
 
2020
 
2021
 
2022
 
After 2022
 
Total
Long-term debt (1)
$
29,929

 
$
35,000

 
$
35,000

 
$
69,061

 
$
12,500

 
$
2,500

 
$
183,990

Other debt (2)
547

 
720

 
223

 
89

 
33

 
—

 
1,612

Equipment purchase commitments
10,157

 
—

 
—

 
—

 
—

 
—

 
10,157

Transportation commitments
3,421

 
—

 
—

 
—

 
—

 
—

 
3,421

Operating leases
288

 
544

 
449

 
—

 
—

 
—

 
1,281

Minimum royalties
6,628

 
8,268

 
7,053

 
6,282

 
5,620

 
21,040

 
54,891

Coal purchase commitments
16,222

 
—

 
—

 
—

 
—

 
—

 
16,222

Contingent revenue obligation
4,858

 
9,876

 
13,931

 
13,693

 
13,605

 
13,605

 
69,568

Total
$
72,050

 
$
54,408

 
$
56,656

 
$
89,125

 
$
31,758

 
$
37,145

 
$
341,142

______________
(1)
Long-term debt includes payments for the $150,000 term loan, the $80,000 LCC note payable and the $14,000 LCC water treatment stipulation due in the years shown. Cash interest payable on the term loan, with an interest rate of LIBOR plus 7%, would be approximately $4,256 in 2018, $7,370 in 2019, $5,963 in 2020, and $3,755 in 2021.
(2)
Includes capital lease obligation principal amounts of $423 in 2018 and $497 in 2019. Cash interest payable on these obligations with an interest rate of 4.72% would be $20 in 2018 and $9 in 2019. Other debt includes principal amounts due of $692 in the years 2018 through 2022. This debt is interest free.

Additionally, ANR has long-term liabilities relating to asset retirement obligations, pension, black lung benefits, and workers’ compensation benefits. The table below reflects the estimated undiscounted cash flows for these obligations as of June 30, 2018:
(in thousands)
2018
 
2019
 
2020
 
2021
 
2022
 
After 2022
 
Total
Asset retirement obligations
$
8,327

 
$
11,096

 
$
13,871

 
$
17,408

 
$
16,866

 
$
368,419

 
$
435,987

Pension benefit obligations
17,771

 
29,858

 
30,989

 
31,894

 
32,704

 
1,420,319

 
1,563,535

Black lung benefit obligations
3,739

 
4,894

 
4,895

 
5,064

 
5,679

 
171,777

 
196,048

Workers’ compensation benefit obligations
9,368

 
11,288

 
8,274

 
6,880

 
5,902

 
69,304

 
111,016

Total
$
39,205

 
$
57,136

 
$
58,029

 
$
61,246

 
$
61,151

 
$
2,029,819

 
$
2,306,586

Critical Accounting Estimates
The preparation of financial statements in conformity with GAAP requires ANR’s management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting periods. Actual results may differ from those estimates and assumptions.
Refer to the Summary of Significant Accounting Policies under Note 3 to ANR’s audited Consolidated Financial Statements for the year ended December 31, 2017 included in this joint proxy statement and prospectus, where ANR discusses its more significant judgments and estimates used in the preparation of the consolidated financial statements.

259


CERTAIN BENEFICIAL OWNERS OF CONTURA COMMON STOCK
The following table and accompanying footnotes show information regarding the beneficial ownership of common stock of Contura as of June 1, 2018, for:
•
each person who is known by Contura to own beneficially more than 5% of common stock of Contura;
•
each member of Contura’s board of directors and each of its named executive officers; and
•
all members of Contura’s board of directors and its executive officers as a group.
All information with respect to beneficial ownership has been furnished by the respective 5% or more stockholders, directors or named executive officers, as the case may be.
Name of Beneficial Owner
Number of Shares Beneficially Owned
 
Percent of
Class Owned
Five Percent Beneficial Owners (1) :
 
 
 
Davidson Kempner Funds (2)
2,029,229

 
20.6
%
Mudrick Funds (3)
1,095,809

 
11.1
%
Whitebox Funds (4)
833,648

 
8.4
%
Melqart Opportunities Master Fund Ltd. (5)
586,900

 
5.9
%
Directors, Director Nominees and Named Executive Officers (1) :
 
 
 
Kevin S. Crutchfield (6)
366,190
*
 
3.7
%
Mark M. Manno (7)
73,997
*
 
*

Charles Andrew Eidson (8)
73,982
*
 
*

V. Keith Hainer (9)
31,877
*
 
*

Gary W. Banbury (10)
4,189
*
 
*

Neale X. Trangucci (11)
11,559
*
 
*

Albert E. Ferrara, Jr. (12)
11,559
*
 
*

Anthony J. Orlando
1,778
*
 
*

Michael J. Ward
1,778
*
 
*

John E. Lushefski (13)
—

 
—

Daniel J. Geiger (14)
—

 
—

David J. Stetson (15)
—

 
—

Harvey L. Tepner (16)
—

 
—

 
 
 
 
Directors, Directors Nominees and Named Executive Officers as a Group (13 Total Persons) (1)(17)
622,013

 
5.7
%
______________
*
Less than 1%
(1)
The shares of Contura common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power, which includes the power to vote or direct the voting of such security, or investment power, which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed beneficial owner of the same securities and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest. Except as otherwise indicated in these footnotes, each of the beneficial owners has, to Contura’s knowledge, sole voting and investment power with respect to the indicated shares of common stock. Unless otherwise indicated, the address for each listed beneficial owner is: 340 Martin Luther King Jr. Blvd., Bristol, Tennessee 37620.

260


(2)
Davidson Kempner Capital Management LP (“DKCM”) holds voting and dispositive authority with respect to shares of common stock beneficially owned by Midtown Acquisitions L.P., M.H. Davidson & Co., Davidson Kempner Partners, Davidson Kempner Institutional Partners, L.P., Davidson Kempner International, Ltd., Davidson Kempner Distressed Opportunities Fund LP and Davidson Kempner Distressed Opportunities International Ltd. Messrs. Thomas L. Kempner, Jr., Anthony A. Yoseloff, Conor Bastable and Avram Z. Friedman, through DKCM, are responsible for the voting and investment decisions relating to such shares of common stock. Each of the aforementioned entities and individuals disclaims beneficial ownership of the shares of the common stock held by any other entity or individual named in this footnote except to the extent of such entity or individual’s pecuniary interest therein, if any. The address of each of the entities and individuals explicitly named in this footnote is c/o Davidson Kempner Capital Management LP, 520 Madison Avenue, 30th Floor, New York, New York 10022.
(3)
Represents 155,291 shares of common stock held by Blackwell Partners LLC Series A (FKA) Blackwell Partners LLC, 206,538 shares of common stock held by Boston Patriot Batterymarch St LLC, 42,675 shares of common stock held by Mudrick Distressed Opportunity Specialty Fund, L.P., 180,943 shares of common stock held by Mudrick Distressed Opportunity Drawdown Fund, L.P., 425,711 shares of common stock held by Mudrick Distressed Opportunity Fund Global, L.P.  and 84,651 shares of common stock held by Mercer QIF Fund PLC (collectively, the “Mudrick Funds”). Contura has been advised that Mudrick Capital Management, L.P. holds voting and dispositive authority with respect to shares held by the Mudrick Funds. Jason Mudrick through Mudrick Capital Management, L.P., is responsible for the voting and investment decisions relating to such shares of common stock. Each of the aforementioned entities and individuals disclaims beneficial ownership of the shares of the common stock held by any other entity or individual named in this footnote except to the extent of such entity or individual’s pecuniary interest therein, if any. The address of each of the entities and individuals explicitly named in this footnote is c/o Mudrick Capital Management, L.P., 527 Madison Avenue, 6th Floor, New York, NY 10022.
(4)
Whitebox General Partner LLC is the general partner of Whitebox Asymmetric Partners, LP, the Cayman Islands limited partnership that has direct beneficial ownership of the shares. Whitebox General Partner LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of Whitebox Asymmetric Partners, LP and holds voting and disposable power over the shares of the Company. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416. The number of shares includes 184,801 shares of common stock and 393 shares of common stock issuable upon exercise of warrants, both of which were issued on account of prepetition claims in connection with a bankruptcy plan of reorganization.
Whitebox General Partner LLC is the general partner of Whitebox Credit Partners, LP, the British Virgin Islands limited partnership that has direct beneficial ownership of the shares. Whitebox General Partner LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of Whitebox Credit Partners, LP and holds voting and disposable power over the shares of the Company. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416. The number of shares includes 93,318 shares of common stock, which were issued on account of prepetition claims in connection with a bankruptcy plan of reorganization.
Whitebox General Partner LLC is the general partner of Whitebox GT Fund, LP, the Delaware limited partnership that has direct beneficial ownership of the shares. Whitebox General Partner LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of Whitebox GT Fund, LP and holds voting and disposable power over the shares of the Company. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416. The number of shares includes 26,185 shares of common stock, which were issued on account of prepetition claims in connection with a bankruptcy plan of reorganization.
Whitebox General Partner LLC is the general partner of Whitebox Multi-Strategy Partners, LP, the British Virgin Islands limited partnership that has direct beneficial ownership of the shares. Whitebox General Partner LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of Whitebox Multi-Strategy Partners, LP and holds voting and disposable power over the shares of the Company. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416. The number of shares includes 434,701 shares of common stock and 1,385 shares of common stock issuable upon exercise of warrants, both of which were issued on account of prepetition claims in connection with a bankruptcy plan of reorganization.
Whitebox General Partner LLC is the general partner of Pandora Select Partners, LP, the British Virgin Islands limited partnership that has direct beneficial ownership of the shares. Whitebox General Partner LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of Pandora Select Partners, LP and holds voting and disposable power over the shares of the Company. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416. The number of shares includes 72,677 shares of common stock, which were issued on account of prepetition claims in connection with a bankruptcy plan of reorganization.
Whitebox General Partner LLC is the general partner of Whitebox Relative Value Partners LP, the Delaware limited partnership that has direct beneficial ownership of the shares. Whitebox Relative Value Partners, LP is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of Whitebox Relative Value Partners, LP and holds voting and disposable power over the shares of the Company. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416. The number of shares includes 20,049 shares of common stock and 50 shares of common stock issuable upon exercise of warrants, both of which were issued on account of prepetition claims in connection with a bankruptcy plan of reorganization.
Whitebox General Partner LLC is the general partner of Whitebox Institutional Partners LP, the Delaware limited partnership that has direct beneficial ownership of the shares. Whitebox Institutional Partners, LP is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul

261


Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of Whitebox Institutional Partners, LP and holds voting and disposable power over the shares of the Company. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416. The number of shares includes 89 shares of common stock issuable upon exercise of warrants, which were issued on account of prepetition claims in connection with a bankruptcy plan of reorganization.
(5)
Melqart Asset Management (UK) Ltd., as investment manager of Melqart Opportunities Master Fund Ltd., has voting and dispositive power over the shares held by Melqart Opportunities Master Fund Ltd. Michel Massoud, through Melqart Asset Management (UK) Ltd., is responsible for the voting and investment decisions relating to such shares of common stock and may be deemed the beneficial owner thereof. The mailing address of Melqart Opportunities Master Fund Ltd. is P.O. Box 309, Ugland House, Grand Cayman KY1-1104, Cayman Islands and the mailing address of Melqart Asset Management (UK) Ltd. and Michel Massoud is 5 St. James’s Square, London, SW1Y 4JU, United Kingdom.
(6)
Includes 172,609 shares of common stock issuable pursuant to options exercisable as of or within 60 days of June 1, 2018. This number also includes 215 warrant certificates to purchase shares of common stock (each granting the right to purchase 1.15 shares for $48.741) granted in connection with Alpha’s emergence from bankruptcy on July 26, 2016.
(7)
Includes 34,519 shares of common stock issuable pursuant to options exercisable as of or within 60 days of June 1, 2018. This number also includes 7 warrant certificates to purchase shares of common stock (each granting the right to purchase 1.15 shares for $48.741) granted in connection with Alpha’s emergence from bankruptcy on July 26, 2016.
(8)
Includes 34,519 shares of common stock issuable pursuant to options exercisable as of or within 60 days of June 1, 2018.
(9)
Includes 4,384 shares of common stock issuable pursuant to options exercisable as of or within 60 days of June 1, 2018. This number also includes 7 warrant certificates to purchase shares of common stock (each granting the right to purchase 1.15 shares for $48.741) granted in connection with Alpha’s emergence from bankruptcy on July 26, 2016. Mr. Hainer’s employment terminated on January 18, 2018.
(10)
Includes 4,040 shares of common stock issuable pursuant to options exercisable as of or within 60 days of June 1, 2018. Mr. Banbury’s employment terminated on January 18, 2018.
(11)
Includes 1,044 shares of common stock underlying outstanding restricted stock units that were granted to Mr. Trangucci on June 9, 2017 and vest and settle within 60 days of June 1, 2018.
(12)
Includes 1,044 shares of common stock underlying outstanding restricted stock units that were granted to Mr. Ferrara on June 9, 2017 and vest and settle within 60 days of June 1, 2018.
(13)
As of June 1, 2018, John Lushefski held ANR Options to purchase shares of Class C-1 Common Stock, which will be automatically converted into ANR Class C-1 Common Stock in connection with the mergers. Such ANR Class C-1 Common Stock and any additional shares of ANR Class C-1 Common Stock held by Mr. Lushefski will convert into shares of Contura common stock based on the applicable exchange ratio in connection with the mergers.
(14)
As of June 1, 2018, Daniel Geiger held ANR RSUs. All ANR RSUs, whether vested or unvested, are expected to convert into restricted stock units relating to shares of Contura common stock (“Contura RSUs”) in connection with the mergers based on the applicable exchange ratio. Any additional shares of ANR Class C-1 Common Stock held by Mr. Geiger will convert into shares of Contura common stock based on the applicable exchange ratio in connection with the mergers.
(15)
As of June 1, 2018, David J. Stetson held ANR Options to purchase shares of Class C-1 Common Stock, which will be automatically converted into ANR Class C-1 Common Stock in connection with the mergers. Such ANR Class C-1 Common Stock will be reduced by the number of shares of Class C-1 Common Stock that will, pursuant to Mr. Stetson’s employment agreement with Alpha Natural Resources Services, LLC (“Alpha Services”), be repurchased by Alpha Services and will not convert into shares of Contura common stock. The remainder of the ANR Class C-1 Common Stock that was converted from the ANR Options and any additional shares of ANR Class C-1 Common Stock held by Mr. Stetson will convert into shares of Contura common stock based on the applicable exchange ratio in connection with the mergers.
(16)
As of June 1, 2018, Harvey L. Tepner held ANR Options to purchase shares of Class C-1 Common Stock, which will be automatically converted into ANR Class C-1 Common Stock in connection with the mergers. Such ANR Class C-1 Common Stock and any additional shares of ANR Class C-1 Common Stock held by Mr. Tepner will convert into shares of Contura common stock based on the applicable exchange ratio in connection with the mergers.
(17)
The individuals in this group include Scott Kreutzer, Kevin Stanley, Suzan E. Moore and Jill M. Harrison along with all of the individuals listed above except for Messrs. Lushefski, Geiger, Stetson and Tepner. Mr. Kreutzer currently serves as the Chief Operating Officer, Mr. Stanley currently serves as the Chief Commercial Officer, Ms. Moore currently serves as the Administration and Chief Human Resources Officer and Ms. Harrison currently serves as General Counsel of the Company.

262


CERTAIN BENEFICIAL OWNERS OF ANR COMMON STOCK
The following table and accompanying footnotes show information regarding the beneficial ownership of common stock of ANR as of June 1, 2018, for:
•
each person who is known by ANR to own beneficially more than 5% of common stock of ANR;
•
each member of ANR’s board of directors and each of its named executive officers; and
•
all members of ANR’s board of directors and its named executive officers as a group.
All information with respect to beneficial ownership has been furnished by the respective 5% or more stockholders, directors or named executive officers, as the case may be.
Name of Beneficial Owner
Number of Shares of Class C-1 Common Stock Beneficially Owned
 
Percent of Class C-1 Common Stock Beneficially Owned
 
Number of Shares of Class C-2 Common Stock Beneficially Owned
 
Percent of Class C-2 Common Stock Beneficially Owned
 
Voting Power (1)
Five Percent Beneficial Owners (2) :
 
 
 
 
 
 
 
 
 
Alpha Natural Resources Holdings, Inc.
—
 
—
 
4,223,400

 
100.0
%
 
23.96%
Whitebox Funds (3)
2,206,406
 
13.87%
 
—
 
—
 
10.55%
Solus Funds (4)
1,431,112
 
9.00%
 
—
 
—
 
6.84%
Deutsch Bank Securities (5)
1,171,577
 
7.36%
 
—
 
—
 
5.60%
KLS Diversified Management LP (6)
1,127,012
 
7.08%
 
—
 
—
 
5.39%
Directors and Named Executive Officers (1) :
 
 
 
 
 
 
 
 
 
W. Douglas Blackburn, Jr.** (7)
33,184
 
*
 
—
 
—
 
*
Daniel J. Geiger** (8)
33,184
 
*
 
—
 
—
 
*
John E. Lushefski**
1,117
 
*
 
—
 
—
 
*
David J. Stetson (Chairman and Chief Executive Officer)**
4,469
 
*
 
—
 
—
 
*
Harvey L. Tepner**
1,117
 
*
 
—
 
—
 
*
Judy Hill (SVP and Chief Administrative Officer)
2,234
 
*
 
—
 
—
 
*
Samuel M. Hopkins (SVP, Chief Financial Officer and Treasurer)
2,234
 
*
 
—
 
—
 
*
Andrew B. McCallister (SVP, General Counsel and Secretary)
2,234
 
*
 
—
 
—
 
*
Jason Whitehead (SVP and Chief Operating Officer)
2,267
 
*
 
—
 
—
 
*
Directors and Named Executive Officers as a Group (9 Total Persons) (1)
82,040
 
*
 
—
 
—
 
*
______________
* Less than 1%
**Member of Board of Directors
(1)
A holder of Class C-1 common stock is entitled to cast one vote for each share of Class C-1 common stock owned by such holder, and a holder of Class C-2 common stock is entitled to cast 1.187 votes for each share of Class C-2 common stock owned by such holder.
(2)
The shares of Class C-1 common stock and Class C-2 common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power, which includes the power to vote or direct the voting of such security, or investment power, which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed beneficial owner of the same securities and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest. Except as otherwise indicated in these footnotes, each of the beneficial owners has, to ANR’s knowledge, sole voting and investment power with

263


respect to the indicated shares of common stock. Unless otherwise indicated, the address for each listed beneficial owner is: 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620.
(3)
Whitebox General Partner LLC is the general partner of each of Whitebox Asymmetric Partners, LP, Whitebox Credit Partners, L.P., Whitebox GT Fund, LP, Whitebox Multi-Strategy Partners, LP, Pandora Select Partners, L.P., Whitebox Institutional Partners, L.P. and Whitebox Relative Value Partners, L.P. (collectively, the “Whitebox Funds”). Whitebox General Partner LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of each of the Whitebox Funds and holds voting and disposable power over the shares of ANR. Whitebox Advisors LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416.
(4)
Solus Alternative Asset Management LP is the investment manager to Solus Core Opportunities LP, Solus Opportunities Fund 5 LP, Sola Intermediate Fund LTD, Solus LLC, Ultra MB LLC and Ultra Master LTD (collectively, the “Solus Funds”) with respect to shares of ANR. Solus GP LLC is the general partner of Solus Alternative Asset Management LP, and Christopher Pucillo serves as the managing member of Solus GP LLC and has voting and dispositive power over the all of the shares of the Solus Funds. The address of these persons is 410 Park Avenue, 11 th Floor, New York, NY 10022.
(5)
Shawn Faurot is a managing director of Deutsche Bank Securities Inc. and has voting and dispositive power over the all of these shares. The address of these persons is 60 Wall Street, 3 rd Floor, New York, New York 10005.
(6)
The address for this beneficial owner is 452 Fifth Avenue, 22 nd Floor, New York, New York 10018.
(7)
Consists solely of shares of common stock underlying outstanding restricted stock units that were granted to Mr. Blackburn and vest within 60 days of June 1, 2018.
(8)
Consists solely of shares of common stock underlying outstanding restricted stock units that were granted to Mr. Geiger and vest within 60 days of June 1, 2018.


264


CERTAIN BENEFICIAL OWNERS OF HOLDINGS COMMON STOCK
The following table and accompanying footnotes show information regarding the beneficial ownership of common stock of Holdings as of June 1, 2018, for:
•
each person who is known by Holdings to own beneficially more than 5% of common stock of Holdings;
•
each member of Holdings’ board of directors and each of its named executive officers; and
•
all members of Holdings’ board of directors and its named executive officers as a group.
All information with respect to beneficial ownership has been furnished by the respective 5% or more stockholders, directors or named executive officers, as the case may be.
Name of Beneficial Owner
Number of Shares Beneficially Owned
 
Percent of Class Owned
Five Percent Beneficial Owners (1) :
 
 
 
Whitebox Funds (2)
586,891

 
13.90
%
Solus Funds  (3)
402,948

 
9.54
%
Highbridge Funds (4)
359,804

 
8.52
%
KLS Diversified Management LP (5)
287,055

 
6.80
%
Deutsch Bank Securities. (6)
285,127

 
6.75
%
Directors and Named Executive Officers (1) :
 
 
 
W. Douglas Blackburn, Jr.**
—
 
—
Daniel J. Geiger**
—
 
—
John E. Lushefski**
—
 
—
David J. Stetson (Chairman and Chief Executive Officer)**
—
 
—
Harvey L. Tepner**
—
 
—
Judy Hill (SVP & Chief Administrative Officer)
—
 
—
Samuel M. Hopkins (SVP, Chief Financial Officer and Treasurer)
—
 
—
Andrew B. McCallister (SVP, General Counsel and Secretary)
—
 
—
Jason Whitehead (SVP and Chief Operating Officer)
8
 
*
Directors and Named Executive Officers as a Group (9 Total Persons) (1)
8
 
*
______________
* Less than 1%
**Member of Board of Directors
(1)
The shares of Holdings common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power, which includes the power to vote or direct the voting of such security, or investment power, which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed beneficial owner of the same securities and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest. Except as otherwise indicated in these footnotes, each of the beneficial owners has, to Holdings’ knowledge, sole voting and investment power with respect to the indicated shares of common stock. Unless otherwise indicated, the address for each listed beneficial owner is: 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620.
(2)
Whitebox General Partner LLC is the general partner of each of Whitebox Asymmetric Partners, LP, Whitebox Credit Partners, L.P., Whitebox GT Fund, LP, Whitebox Multi-Strategy Partners, LP, Pandora Select Partners, L.P., Whitebox Institutional Partners, L.P., Whitebox Relative Value Partners, L.P. and Whitebox Caja Blanca Fund, LP (collectively, the “Whitebox Funds”). Whitebox General Partner LLC is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (B) LP. Messrs. Redleaf, Vogel, Mercer, Roos, Strefling, Twitchell and Vigilante share voting and dispositive power over all of the shares of Whitebox General Partner LLC. Whitebox Advisors LLC is the investment manager of each of the Whitebox Funds and holds voting and disposable power over the shares of Holdings. Whitebox Advisors LLC

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is owned by Andrew Redleaf, Robert Vogel, Jacob Mercer, Paul Roos, Mark Strefling, Paul Twitchell, Richard Vigilante and Dyal Capital Partners II (A) LP. The address of these persons is 3033 Excelsior Blvd, Suite 300, Minneapolis, MN 55416.
(3)
Solus Alternative Asset Management LP is the investment manager to the Solus Funds with respect to shares of Holdings. Solus GP LLC is the general partner of Solus Alternative Asset Management LP, and Christopher Pucillo serves as the managing member of Solus GP LLC and has voting and dispositive power over the all of the shares of the Solus Funds. The address of these persons is 410 Park Avenue, 11 th Floor, New York, NY 10022.
(4)
Highbridge Capital Management, LLC (“HCM”), the trading manager of each of 1992 MSF International Ltd. (“MSFI”) and 1992 Tactical Credit Master Fund, L.P. (together with MSFI, the “Highbridge Funds”) may be deemed to be the beneficial owner of shares of Holdings held by the Highbridge Funds. The Highbridge Funds each disclaim any beneficial ownership of these shares. The business address of HCM is 40 West 57 th Street, 32 nd Floor, New York, New York 10019, and the business address of the Highbridge Funds is c/o HedgServ (Cayman) Ltd., Willow House, Cricket Square Floor 3, George Town, Grand Cayman KY1-1104, Cayman Islands.
(5)
The address for this beneficial owner is 452 Fifth Avenue, 22nd Floor, New York, New York 10018.
(6)
Shawn Faurot is a managing director of Deutsche Bank Securities Inc. and has voting and dispositive power over the all of these shares. The address of these persons is 60 Wall Street, 3 rd Floor, New York, New York 10005.



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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Review and Approval of Related Party Transactions
Upon completion of the mergers, pursuant to our written charter, our audit committee will review and, subject to certain exceptions, approve, amend, ratify, terminate or rescind, related-party transactions submitted for consideration by our General Counsel, which include any related party transactions that we would be required to disclose pursuant to Item 404 of Regulation S-K promulgated by the SEC. In determining whether to approve a related party transaction, the audit committee will consider a number of factors, including whether the related party transaction complies with the restrictions set forth in our debt facilities and whether it is on terms and conditions no less favorable to us than may reasonably be expected in arm’s-length transactions with unrelated parties.
Contura’s Relationship with Alpha
Please see the section of this joint proxy statement and prospectus entitled “The Mergers — Materials Contracts between Contura and Alpha” beginning on page 136 for a discussion of Contura’s relationship with Alpha.
Registration Rights Agreement
Contura and certain of its stockholders entered into a registration rights agreement in connection with the Alpha Restructuring. Pursuant to the registration rights agreement, as amended, such stockholders may, subject to various conditions and limitations, require Contura to file registration statements to register the resale of the shares held by such stockholders or to include their shares in registration statements that Contura files for itself or other stockholders. Contura has also agreed to reimburse the parties to the registration rights agreement for certain expenses incurred in connection with the filing of any registration statement and the marketing of any securities registered pursuant to the registration rights agreement. Pursuant to amendment no. 3 to the registration rights agreement, the registration rights agreement will be terminated upon consummation of the mergers and the listing of Contura’s common stock on the New York Stock Exchange or the NASDAQ Global Select Market.
Payment of Dividend Equivalents Related to the Special Dividend
On June 16, 2017, Contura declared a special cash distribution (the “Special Dividend”) in the amount of approximately $100.7 million, equal to $8.997 per share. In the event of certain corporate transactions or distributions (including an extraordinary cash dividend such as the Special Dividend), our compensation committee is required under the terms of the Management Incentive Plan (“MIP”) to make certain adjustments to the outstanding awards under the MIP to prevent dilution or enlargement of the benefits under such awards. To prevent the dilution of the benefits under outstanding RSU awards that we granted to our non-employee directors, our compensation committee approved a dividend equivalent payment to be made to our directors in respect of their outstanding RSU awards. The dividend equivalent payment, which was in an amount per RSU equal to the per-share Special Dividend (approximately $8.997 for each share underlying outstanding RSU awards and was paid on July 13, 2017, was in respect of the directors’ 2016 annual RSU awards, 2016 cash retainers that they elected to defer into RSUs, 2017 annual RSU awards, which were granted as of May 31, 2017, and the special one-time RSU grants approved on June 9, 2017. See “Directors and Executive Officers of Contura After the Mergers—Compensation of Our Directors.”

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DESCRIPTION OF CONTURA CAPITAL STOCK
The following is a description of the material terms of Contura’s amended and restated certificate of incorporation and amended and restated bylaws, in each case as in effect and affecting the rights of Contura’s stockholders upon the completion of this offering. We refer you to Contura’s amended and restated certificate of incorporation and amended and restated bylaws, copies of which will be filed as exhibits to the registration statement of which this joint proxy statement and prospectus forms a part.
Contura’s authorized capital stock under Contura’s amended and restated certificate of incorporation consists of 50,000,000 shares of common stock, par value $0.01 per share and 5,000,000 shares of preferred stock, par value $0.01 per share.
Common Stock
Common stock outstanding. As of June 1, 2018 there were 9,872,632 shares of common stock outstanding, which were held of record by 72 stockholders. All outstanding shares of common stock are fully paid and non-assessable, and the shares of common stock to be issued upon completion of this offering will be fully paid and non-assessable.
Voting rights. The holders of common stock are entitled to one vote per share on all matters to be voted upon by the stockholders.
Dividend rights. Subject to preferences that may be applicable to any outstanding preferred stock, the holders of common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by the board of directors out of funds legally available therefor. See “Comparative Per Share Market Price and Dividend Information—Dividends—Contura.”
Rights upon liquidation. In the event of liquidation, dissolution or winding up of Contura, the holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred stock, if any, then outstanding.
Other rights. The holders of common stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock.
Preferred Stock
As of June 1, 2018, there were no shares of preferred stock outstanding. Contura’s board of directors has the authority to issue the preferred stock in one or more series and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of preferred stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by Delaware law.
The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of Contura without further action by the stockholders and may adversely affect the voting and other rights of the holders of common stock. At present, Contura has no plans to issue any of the preferred stock.
Warrants
On July 26, 2016, Contura issued 810,811 warrants pursuant to Alpha’s Plan of Reorganization. As of June 1, 2018, Contura had 801,983 warrants outstanding. The outstanding warrants are exercisable into a maximum of 922,280 shares of common stock with an exercise price of approximately $48.741 per share and are exercisable for cash or on a cashless basis at any time from July 26, 2016 until July 26, 2023.
Registration Rights
Contura and certain of its stockholders entered into a registration rights agreement in connection with the Alpha Restructuring. Pursuant to the registration rights agreement, as amended, such stockholders may, subject to various conditions

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and limitations, require Contura to file registration statements to register the resale of the shares held by such stockholders or to include their shares in registration statements that Contura files for itself or other stockholders. Contura has also agreed to reimburse the parties to the registration rights agreement for certain expenses incurred in connection with the filing of any registration statement and the marketing of any securities registered pursuant to the registration rights agreement. Pursuant to amendment no. 3 to the registration rights agreement, the registration rights agreement will be terminated upon consummation of the mergers and the listing of Contura’s common stock on the New York Stock Exchange or the NASDAQ Global Select Market.
Anti-takeover Effects of Certain Provisions of Contura’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Removal of Directors; Vacancies
Contura’s board of directors currently consists of five directors. The exact number of directors will be fixed from time to time by resolution of the board. Any director may be removed, with or without cause, at any time by the affirmative vote of shares representing a majority of the shares then entitled to vote at an election of directors. Any vacancy occurring on the board of directors and any newly created directorship shall, unless the board calls a special meeting for which the election of directors is included as business or as otherwise required by law, be filled solely by a majority of the remaining directors in office.
No Cumulative Voting
The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless Contura’s amended and restated certificate of incorporation provides otherwise. Contura’s amended and restated certificate of incorporation prohibits cumulative voting.
Calling of Special Meetings of Stockholders
Contura’s amended and restated certificate of incorporation and Contura’s amended and restated bylaws provide that special meetings of Contura’s stockholders may be called only by Contura’s board of directors, subject to the rights of the holders of any series of preferred stock.
No Stockholder Action by Written Consent
Contura’s amended and restated certificate of incorporation and Contura’s amended and restated bylaws provide that any action required or permitted to be taken by Contura’s stockholders must be effected by a duly called annual or special meeting of stockholders and may not be effected by any consent in lieu of a meeting of such stockholders, subject to the rights of the holders of any series of preferred stock.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Contura’s amended and restated bylaws provide that stockholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of stockholders must provide timely notice of their proposal in writing to Contura’s corporate secretary.
Generally, to be timely, a stockholder’s notice must be received at Contura’s principal executive offices not less than 120 days nor more than 150 days prior to the first anniversary date of the date on which the Company first mailed its proxy materials for the previous year’s annual meeting. Contura’s amended and restated bylaws also specify requirements as to the form and content of a stockholder’s notice. These provisions may impede stockholders’ ability to bring matters before an annual meeting of stockholders or make nominations for directors at an annual meeting of stockholders.
Amendments to Contura’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Contura’s amended and restated certificate of incorporation grants Contura’s board of directors the authority to adopt, amend or repeal Contura’s amended and restated bylaws without a stockholder vote in any manner not inconsistent with the

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laws of the State of Delaware. Contura’s amended and restated certificate of incorporation and amended and restated bylaws may be amended by the affirmative vote of the holders of at least two-thirds of the shares of common stock.
Limitations on Liability and Indemnification of Officers and Directors
Contura’s amended and restated certificate of incorporation provides that no director will be personally liable to Contura or its stockholders for monetary damages for breach of fiduciary duty as a director, except as required by applicable law, as in effect from time to time. Currently, Delaware law requires that liability be imposed for the following:
•
any breach of the director’s duty of loyalty to Contura or its stockholders;
•
any act or omission not in good faith or which involved intentional misconduct or a knowing violation of law;
•
unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; and
•
any transaction from which the director derived an improper personal benefit.
As a result, neither Contura nor its stockholders have the right, through stockholders’ derivative suits on their behalf, to recover monetary damages against a director for breach of fiduciary duty as a director, including breaches resulting from grossly negligent behavior, except in the situations described above.
Contura’s amended and restated certificate of incorporation provides that, to the fullest extent permitted by law, Contura will indemnify any officer or director of Contura against all damages, claims and liabilities arising out of the fact that the person is or was Contura’s director or officer, or served any other enterprise at Contura’s request as a director, officer, employee, agent or fiduciary. Contura will reimburse the expenses, including attorneys’ fees, incurred by a person indemnified by this provision when Contura receives an undertaking to repay such amounts if it is ultimately determined that the person is not entitled to be indemnified by Contura. Amending this provision will not reduce Contura’s indemnification obligations relating to actions taken before an amendment.
Delaware Anti-Takeover Statute
Contura is subject to Section 203 of the DGCL. Subject to specified exceptions, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder. “Business combinations” include mergers, asset sales and other transactions resulting in a financial benefit to the “interested stockholder.” Subject to various exceptions, an “interested stockholder” is a person who together with his or her affiliates and associates, owns, or within three years did own, 15% or more of the corporation’s outstanding voting stock. These restrictions generally prohibit or delay the accomplishment of mergers or other takeover or change-in-control attempts.
Exclusive Forum Provision of Contura’s Amended and Restated Bylaws
Under Contura’s amended and restated bylaws, to the fullest extent permitted by law and unless Contura consents in writing to the selection of an alternative forum, the Court of Chancery of the state of Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of Contura, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Contura director, officer or other employee to Contura or its stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Contura charter (including any certificate of designations relating to any class or series of preferred stock) or the Contura bylaws (in each case, as they may be amended from time to time), or (iv) any action asserting a claim governed by the internal affairs doctrine.
By limiting the ability of third parties and Contura’s stockholders to file such lawsuits in the forum of their choosing, this exclusive forum provision could increase the costs to a plaintiff of bringing such a lawsuit and could have the effect of deterring such lawsuits, which could include potential takeover-related lawsuits.
Transfer Agent and Registrar
Computershare Trust Company, N.A. is the transfer agent and registrar for Contura’s common stock.

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Authorized but Unissued Capital Stock
The DGCL does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of the NYSE, which would apply so long as Contura’s common stock is listed on the NYSE, require stockholder approval of certain issuances equal to or exceeding 20% of the then-outstanding voting power or then-outstanding number of shares of common stock. These additional shares may be used for a variety of corporate purposes, including future public offerings, to raise additional capital or to facilitate acquisitions.
One of the effects of the existence of unissued and unreserved common stock may be to enable Contura’s board of directors to issue shares to persons friendly to current management, which issuance could render more difficult or discourage an attempt to obtain control of Contura by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of our management and possibly deprive the stockholders of opportunities to sell their shares of common stock at prices higher than prevailing market prices.

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COMPARISON OF STOCKHOLDERS’ RIGHTS
Contura, Holdings and ANR are incorporated under the laws of the State of Delaware and, accordingly, the rights of the stockholders of each are governed by the DGCL. Upon completion of the mergers, all outstanding shares of Holdings common stock and Class C-1 common stock (other than canceled shares and appraisal shares) will be converted into the right to receive the consideration payable in connection with the mergers, which will include shares of Contura common stock. Therefore, upon completion of the mergers, the rights of the former Holdings stockholders and former ANR stockholders will be governed by Delaware law and the certificate of incorporation and bylaws of Contura as in effect as of immediately following the completion of the mergers (referred to in this section as the “Contura charter” and the “Contura bylaws”, respectively).
The following discussion is a summary of the rights of Contura stockholders immediately following the completion of the mergers and the current rights of Holdings stockholders and ANR stockholders. While this summary includes the material differences between the rights of such stockholders, this summary may not contain all of the information that is important to you. You are urged to read carefully this entire joint proxy statement and prospectus, the relevant provisions of the DGCL and the other documents referred in this joint proxy statement and prospectus for a more complete understanding of the differences between being a stockholder of Contura immediately following the completion of the mergers, a stockholder of Holdings and a stockholder of ANR. Each of Contura, Holdings and ANR will send copies of its organizational documents referred to in this joint proxy statement and prospectus to you upon your request. See “Where You Can Find More Information.”
 
Rights of Contura Stockholders
 
Rights of Holdings Stockholders
 
Rights of ANR Stockholders
Authorized Capital Stock
Contura is authorized under the Contura charter to issue 55,000,000 shares, consisting of 50,000,000 shares of common stock and 5,000,000 shares of preferred stock, each with a par value $0.01 per share.
 
Holdings is authorized under the Holdings charter to issue 11,800,000 shares, consisting of 5,000,000 shares of common stock and 6,800,000 shares of preferred stock, each with a par value of $0.01 per share. Under the Holdings charter, Holdings preferred stock consists of 6,500,000 shares of Series A preferred stock and 300,000 shares of Series B preferred stock (together, “Class AB preferred stock”).
 
ANR is authorized under the ANR charter to issue 54,223,400 shares, consisting of 50,000,000 shares of Class C-1 common stock, and 4,223,400 shares of Class C-2 Common Stock, each with a par value of $0.01 per share.
Special Meetings of Stockholders
The Contura charter and bylaws provide that special meetings of Contura stockholders may be called only by the Contura board of directors, subject to the rights of the holders of any series of preferred stock.  

Notwithstanding the foregoing, whenever the holders of one or more classes or series of preferred stock have the right, voting separately as a class or series, to elect directors, such holders may call, pursuant to the terms of such class or series of preferred stock adopted by resolution or resolutions of the Contura board of directors, special meetings of holders of such preferred stock.
 
The Holdings bylaws provide that a special meeting of stockholders may be called only by Holdings’ chairman, president, or secretary within ten calendar days of the written request of either (i) a majority of the directors then in office, (ii) the holders of at least 20% of the voting power of the outstanding common stock, voting together as a single class, or (iii) the holders of at least 20% of the voting power of the outstanding preferred stock, voting together as a single class.
 
Same as Holdings.

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Stockholder Action by Written Consent
The Contura charter and bylaws provide that any action required or permitted to be taken by Contura stockholders must be effected by a duly called annual or special meeting of such stockholders and may not be effected by any consent in lieu of a meeting of such stockholders, subject to the rights of the holders of any series of preferred stock.
 
Action by written consent in lieu of a meeting of Holdings stockholders is permitted.
 
Action by written consent in lieu of a meeting of ANR stockholders is permitted.
Vote Requirements
Except as otherwise provided by law, the Contura charter or the Contura bylaws,  t he holders of common stock are entitled to one vote per share on all matters to be voted upon by the stockholders, and in all matters other than the election of directors, the affirmative vote of the holders of a majority of the votes cast at the meeting on the subject matter will be the act of the stockholders. Abstentions and broker non-votes will not be counted as votes cast. Subject to the rights of the holders of Contura preferred stock, directors will be elected by a plurality of the votes of shares of Contura capital stock present in person or represented by proxy at a meeting and entitled to vote on the election of directors.
 
Except as otherwise provided by law, each holder of common stock is entitled to one vote per share on all matters on which stockholders of Holdings are entitled to vote other than an amendment to the Holdings charter (including any preferred stock designation relating to any series of preferred stock) that relates solely to the terms of one or more series of preferred stock if the holders of such affected series are entitled to vote thereon pursuant to the Holdings charter (including any preferred stock designation relating to any series of preferred stock). Except as otherwise provided by law, the Holdings charter, any preferred stock designation or the Holdings bylaws, the affirmative vote of the holders of a majority of (i) common stock and (ii) preferred stock, in each case present in person or represented by proxy and entitled to vote on the subject matter, will be the act of the stockholders in all matters other than the election of directors, which requires a plurality of the votes of the holders of the class of stock present in person or represented by proxy and
entitled to vote for such directors.
 
Each holder of Class C-1 common stock is entitled, to one vote per share on all matters on which stockholders of ANR are entitled to vote; each holder of Class C-2 common stock is entitled to 1.187 votes per share on all matters on which stockholders of ANR are entitled to vote.

Except as otherwise provided by the ANR charter or by law, the holders of shares of Class C-1 common stock and Class C-2 common stock will vote together as a single class on all matters submitted to a vote or for the consent of the stockholders of ANR.

Except as otherwise provided by law, the ANR charter or the ANR bylaws, the affirmative vote of the holders of a majority of common stock present in person or represented by proxy and entitled to vote on the subject matter will be the act of the stockholders in all matters other than the election of directors, which requires a plurality of the votes of the holders of a majority of common stock present in person or represented by proxy and entitled to vote for such directors.

The number of authorized shares of Class C-1 common stock or Class C-2 common stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of the holders of shares of stock of ANR representing a majority of the votes represented by all outstanding shares of stock of ANR entitled to vote (voting together as a single class), irrespective of the provisions of Section 242(b)(2) of the DGCL.

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Stockholder Proposals
The Contura bylaws provide that stockholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of stockholders must provide timely notice of their proposal in writing to Contura’s corporate secretary.
 
The Holdings bylaws provide that stockholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of stockholders must provide timely notice of their proposal in writing to Holdings’ secretary. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of Holdings not less than 90 nor more than 120 calendar days prior to the first anniversary date of the immediately preceding annual meeting of the stockholders. If the date of an annual meeting is more than 30 calendar days before or more than 30 calendar days after the date of the first anniversary of the precedent year’s annual meeting, then for the notice by the stockholder to be timely it must be so delivered not later than the close of business on the later of the 90th calendar day prior to such annual meeting or the close of business on the 10th day following the date on which public announcement of the annual meeting date was made.

The stockholder must be a stockholder of record on the date of the giving of the notice described above and be entitled to vote at the meeting, and the notice must set forth all information regarding the proposed business and the proposing stockholder and any associated person as required under the bylaws of Holdings.

If such stockholder or a qualified representative of such stockholder does not appear at such annual meeting to present the proposed business, Holdings need not present such proposal for a vote at such a meeting, notwithstanding that proxies in respect of such vote may have been received.
 
Same as Holdings.

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Nomination of Candidates for Election to the Board of Directors
The Contura bylaws provide that nominations of persons for election to the Contura board of directors at an annual meeting of stockholders may be made only if (i) pursuant to a notice of meeting (or any supplement thereto), (ii) by or at the direction of the Contura board of directors or any committee thereof, (iii) as may be provided in the certificate of designations for any class or series of preferred stock or (iv) by any Contura stockholder who is a stockholder of record at the time of giving of notice pursuant to Contura’s bylaws and at the time of the annual meeting, who will be entitled to vote at the meeting and who complies with the procedures set forth in Contura’s bylaws. Whenever the holders of one or more classes or series of preferred stock shall have the right, voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of such class or series of preferred stock adopted by resolution or resolutions adopted by the Contura board of directors pursuant to the Contura charter and bylaws.
 
Subject to the rights of the holders of preferred stock specified in a preferred stock designation, the Holdings bylaws provide that nominations of persons for election to the Holdings board may be made at an annual meeting of stockholders (i) by or at the direction of the Holdings board of directors or a committee thereof or (ii) by any stockholder of record of Holdings if such stockholder is entitled to vote for the election of directors at such annual meeting and if such stockholder complies with the procedural requirements contained in the Holdings bylaws.

For nominations for election to the Holdings board before an annual meeting, the stockholder must have given timely notice as described above under “Stockholder Proposals,” and such notice must include all of the information regarding the nominee(s), the stockholder giving the notice and any associated person, as set forth in the Holdings bylaws.

If such stockholder or a qualified representative of such stockholder does not appear at such annual meeting to present such nomination(s), Holdings need not present such nomination(s) for a vote at such a meeting, notwithstanding that proxies in respect of such vote may have been received by Holdings.
 
Same as Holdings.

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Notice of Stockholder Meetings
The Contura bylaws provide that whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting will be given which will state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by the DGCL, such notice will be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. The Contura board of directors or the chairman of the meeting may adjourn the meeting to another time or place (whether or not a quorum is present), and notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, Contura may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each stockholder of record entitled to vote at the meeting.
 
The Holdings bylaws provide that a notice of an annual or special meeting will be given to each stockholder not less than 10 nor more than 60 days prior to the meeting and must specify the place, if any, date and time thereof, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes of the meeting. When a meeting is adjourned to another place, date, or time, notice need not be given of the adjourned meeting if the place, if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. However, if the adjournment is for more than 30 calendar days, or if after the adjournment a new record date is fixed for the adjourned meeting, written notice must be provided of the place, if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting. At the adjourned meeting, any business may be transacted which properly could have been transacted at the original meeting.
 
Same as Holdings.

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In connection with stockholder proposals and director nominations, generally, to be timely, a stockholder's notice must be received at Contura's principal executive offices not less than 120 days nor more than 150 days prior to the first anniversary date of the date on which the Company first mailed its proxy materials for the previous year's annual meeting. The Contura bylaws also specify requirements as to the form and content of a stockholder's notice. These provisions may impede stockholders' ability to bring matters before an annual meeting of stockholders or make nominations for directors at an annual meeting of stockholders.
 
 
 
 
Supermajority Vote Requirements
The Contura charter provides that a supermajority vote of at least two-thirds of the voting power of all outstanding securities of Contura generally entitled to vote in the election of directors, voting together as a single class, is required to amend or repeal to the portions of the Contura charter governing voting rights, the Contura bylaws, the Contura board of directors, stockholder meetings, limited liability, indemnification and amendments to the Contura charter.

The Contura bylaws may be adopted, amended or repealed by the affirmative vote of the holders of at least two-thirds of the voting power of all outstanding securities of Contura generally entitled to vote in the election of directors, voting together as a single class.
 
The Holdings charter provides that the affirmative vote of both (i) the holders of at least 75% of the outstanding common stock, voting together as a single class, and (ii) the holders of at least 75% of the outstanding Class AB preferred stock, voting together as a single class, is required to amend, repeal or adopt any provision inconsistent with the bylaws section of the Holdings charter and portions of the Holdings bylaws governing special meetings of stockholders and directors, quorum requirements of such special meetings, voting rights and proxies, record dates, directorships (including provisions related to the director to be nominated by holders of Class AB preferred stock) and amendments of bylaws.
 
The ANR charter provides that the affirmative vote of the holders of at least 75% of the outstanding common stock, voting together as a single class, is required to amend, repeal or adopt any provision inconsistent with the bylaws section of the ANR charter and portions of the ANR bylaws governing special meetings of stockholders and directors, quorum requirements of such special meetings, voting rights and proxies, record dates, directorships and amendments of bylaws, except no such vote or consent is required to amend or repeal any provision of the bylaws to remove any rights granted to holders of a series or class of preferred stock or references to the same.

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Number of Directors; Election; Vacancies
The number of directors which will constitute the Contura board of directors will be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the Contura board of directors.
Each director will be elected annually at each annual meeting of stockholders to hold office for a term expiring at the next annual meeting of stockholders, with each director to hold office until such director’s successor will have been duly elected and qualified or until such director’s earlier death, resignation or removal. In no event will a decrease in the number of directors shorten the term of any incumbent director. There will be no cumulative voting in the election of directors. Election of directors need not be by written ballot unless the bylaws so provide.
Vacancies on the Contura board of directors resulting from death, resignation, removal or otherwise and newly created directorships resulting from any increase in the number of directors will, unless the Contura board of directors calls a special meeting for which the election of directors is included as business or as otherwise required by law, be filled solely by a majority of the directors then in office (although less than a quorum) or by the sole remaining director. Each director so elected will hold office for a term ending at the next annual meeting of stockholders, and until such director’s successor will have been duly elected and qualified or until such director’s earlier death, resignation or removal.
 
For so long as any share of Class AB preferred stock remains outstanding, the board of directors will consist of five members. Subject to such rights, the number of directors of Holdings may be determined from time to time only by a vote of a majority of the whole board of directors of Holdings.

At each annual meeting of stockholders, holders of the outstanding shares of preferred stock will be entitled, voting as a separate class, to elect one director, and other stockholders will be entitled, voting as a separate class, to elect the remaining directors. No decrease in the number of directors will shorten the term of any director. Election of directors need not be by written ballot unless the bylaws so provide.

In the case of removal of a director elected by the holders of Class AB preferred stock or any vacancy in the office of such a director, upon written request of holders representing at least 20% of the voting power the then-outstanding Class AB preferred stock, an officer of Holdings may call a special meeting to elect a successor to fill the vacancy or to hold office for the unexpired term of a removed director, except no such special meeting will be called for a removal of a director during a period within the 120 days immediately preceding the date fixed for the next annual stockholders meeting, in which such case, the election of directors will be held at such annual stockholders meeting. Holders of Class AB preferred stock are also entitled to elect a successor at the next regular annual meeting or by written consent.
 
The number of directors of ANR may be determined from time to time only by a vote of a majority of the whole board of directors of ANR.

At each annual meeting of stockholders, holders of common stock will be entitled, voting as a class, to elect the directors. No decrease in the number of directors will shorten the term of any director. Election of directors need not be by written ballot unless the bylaws so provide.

Vacancies on the ANR board resulting from death, resignation disqualification, removal or other causes and newly created directorships resulting from any increase in the number of directors may be filled only by a majority of the directors then in office (even if less than a quorum) or by the sole remaining director. Each director so elected will hold office for a term ending at the next annual meeting of stockholders, and until such director’s successor will have been duly elected and qualified or until such director’s earlier death, resignation, disqualification or removal.

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In the case of removal of a director elected by the holders of common stock, upon written request of holders representing at least 20% of the voting power the then-outstanding common stock, an officer of Holdings will call a special meeting to elect a successor to hold office for the unexpired term, except no such special meeting will be called during a period within the 120 days immediately preceding the date fixed for the next annual stockholders meeting, , in which such case, the election of directors will be held at such annual stockholders meeting, in which such case, the election of directors will be held at such annual stockholders meeting. Holders of common stock are also entitled to elect a successor at the next regular annual meeting or by written consent.
At any meeting held for the purpose of electing a director elected by the holders of common stock, the presence in person or by proxy of such common stock holders holding more than 50% of the outstanding shares of the common stock as of the record date will be required and will constitute a quorum.
In case of any vacancy (other than by removal) in the office of a director elected by the holders of common stock, the vacancy may only be filled by the affirmative vote of a majority of all remaining members of the Holdings board of directors.
Subject to such rights above, vacancies on the Holdings board of directors resulting from death, resignation, removal or other causes and newly created directorships resulting from any increase in the number of directors will be filled only by a majority of the directors then in office (although less than a quorum) or by the sole remaining director. Each director so elected will hold office for a term ending at the next annual meeting of stockholders, and until such director’s successor will have been duly elected and qualified or until such director’s earlier death, resignation or removal.
 
 

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Removal of Directors
Any or all Contura directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding Contura capital stock then entitled to vote at any election of directors and the vacancies thus created will be filled in accordance with the Contura charter.
 
The organizational documents of Holdings are silent on the removal of directors.
 
Any or all ANR directors may be removed from office at any time, with or without cause, by the affirmative vote of the holders of a majority of the voting power of outstanding shares of capital stock of ANR entitled to vote generally in the election of directors.

Limitation on Liability of Directors for Breach of Fiduciary Duty
The Contura charter provides that a Contura director will not be personally liable to Contura or Contura stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL.
 
The Holdings charter provides that no director of Holdings shall be liable to Holdings or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exculpation is not permitted under the DGCL. Any amendment, modification or repeal of the foregoing provision will not adversely affect any right or protection of a director of Holdings existing at the time of, or increase the liability of any director of Holdings with respect to any acts or omissions of such director occurring prior to, such amendment, modification or repeal.
 
Same as Holdings.
 
The Contura charter provides that, to the fullest extent permissible by law, Contura will indemnify its directors and officers against all damages, claims and liabilities arising out of the fact that such person is or was a Contura director, or served any other enterprise at Contura’s request as a director or officer. The right to indemnification will also include the right to be paid by Contura the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by the laws of the state of Delaware Law. The right to indemnification is a contractual right. Contura may also provide indemnification to its employees and agents to such extent and to such effect as the Contura board of directors determines to be appropriate and authorized by the laws of the state of Delaware.
 
The Holdings charter provides that, to the fullest extent permissible by law, Holdings will indemnify its directors and officers against all damages, claims and liabilities arising out of the fact that such person is or was a Holdings director, or served any other enterprise at Holdings’ request as a director or officer. Any repeal or modification of the Holdings charter shall not adversely affect any such right or protection existing immediately prior to such repeal or modification.
 
Same as Holdings.

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Dividends
Subject to the rights of any holders of any class or series of Contura preferred stock then outstanding, the holders of Contura common stock will be entitled to the payment of dividends when and as declared by the Contura board of directors in accordance with applicable law and to receive other distributions from Contura. Any dividends in respect of Contura common stock will be paid, on a pro rata basis, to the holders thereof in cash, in property or in shares of Contura capital stock.
 
Until Holdings has paid dividends totaling $15,750,000, (i) 65% of the distribution amount shall be paid to holders of Series A preferred stock on a pro rata basis, (ii) 3% of the distribution amount shall be paid to holders of Series B preferred stock on a pro rata basis and (iii) 32% of the distribution amount shall be paid to holders of common stock on a pro rata basis.

From and after such time as Holdings has paid dividends totaling $15,750,000, (i) 50% of the distribution amount shall be paid to holders of Series A preferred stock on a pro rata basis, (ii) 3% of the distribution amount shall be paid to holders of Series B preferred stock on a pro rata basis and (iii) 47% of the distribution amount shall be paid to holders of common stock on a pro rata basis.

So long as any shares of the Class AB preferred stock are outstanding, Holdings shall not declare, pay or set apart for payment any dividends or other distributions other than as described above, or repurchase, redeem or otherwise acquire, or set apart funds for such purposes.

Subject to the rights described above and other provisions of the Holdings charter, the holders of the outstanding shares of common stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the corporation as may be declared thereon by the board of directors of Holdings from time to time out of assets or funds of Holdings legally available therefore.
 
The holders of the outstanding shares of common stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of ANR as may be declared thereon by the board of directors of ANR from time to time out of assets or funds of ANR legally available therefore.

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Exclusive Forum
To the fullest extent permitted by law and unless Contura consents in writing to the selection of an alternative forum, the Court of Chancery of the state of Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of Contura, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Contura director, officer or other employee to Contura or its stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Contura charter (including any certificate of designations relating to any class or series of preferred stock) or the Contura bylaws (in each case, as they may be amended from time to time), or (iv) any action asserting a claim governed by the internal affairs doctrine.
 
Same as Contura.
 
Same as Contura.
Amendment of Certificate of Incorporation
The Contura charter may be amended in any manner permitted by the laws of the state of Delaware. The Contura charter provides that a supermajority vote of at least two-thirds of the voting power of all outstanding securities of Contura generally entitled to vote in the election of directors, voting together as a single class, is required to amend or repeal to the portions of the Contura charter governing voting rights, the Contura bylaws, the Contura board of directors, stockholder meetings, limited liability, indemnification and amendments to the Contura charter.
 
The Holdings charter provides that the affirmative vote of both (i) the holders of at least 75% of the outstanding common stock, voting together as a single class, and (ii) the holders of at least 75% of the outstanding Class AB preferred stock, voting together as a single class, is required to amend, repeal or adopt any provision inconsistent with the bylaws section of the Holdings charter. Holdings reserves the right to amend, alter, change, waive or repeal any provision of the Holdings charter, in the manner prescribed by the laws of the state of Delaware and the Holdings charter, and all rights, preferences and privileges conferred therein are granted subject to such reservation.
 
The ANR charter provides that the affirmative vote of the holders of at least 75% of the outstanding common stock, voting together as a single class, is required to amend, repeal or adopt any provision inconsistent with the bylaws section of the ANR charter. ANR reserves the right to amend, alter, change, waive or repeal any provision of the ANR charter, in the manner prescribed by the laws of the state of Delaware and the ANR charter, and all rights, preferences and privileges conferred therein are granted subject to such reservation.

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Amendment of Bylaws by Stockholders
The Contura charter grants the Contura board of directors the authority to adopt, amend or repeal the bylaws without a stockholder vote in any manner not inconsistent with the laws of the state of Delaware. The Contura bylaws may also be adopted, amended or repealed by the affirmative vote of the holders of at least two-thirds of the voting power of all outstanding securities of Contura generally entitled to vote in the election of directors, voting together as a single class.
 
The Holdings charter grants the Holdings board of directors the power to adopt, amend or repeal the Holdings bylaws, except for portions of the Holdings bylaws governing special meetings of stockholders, quorum requirements of such special meetings, voting rights and proxies, amendments of bylaws, and to the extent expressly provided otherwise in the Holdings bylaws.

Holders of a majority of the common stock, voting together as a single class, and the holders of a majority of the Class AB preferred stock, voting together as a single class, may, together, also adopt, amend or repeal the Holdings bylaws, except the affirmative vote of both (i) the holders of at least 75% of the outstanding common stock, voting together as a single class, and (ii) the holders of at least 75% of the outstanding Class AB preferred stock, voting together as a single class, is required to amend, repeal or adopt any provision inconsistent with portions of the Holdings bylaws governing special meetings of stockholders and directors, quorum requirements of such special meetings, voting rights and proxies, record dates,, certain provisions regarding directorships (including provisions related to the director to be nominated by holders of Class AB preferred stock) and amendments of bylaws.
 
The ANR charter grants the ANR board the power to adopt, amend or repeal the ANR bylaws, except for portions of the ANR bylaws governing special meetings of stockholders, quorum requirements of such special meetings, voting rights and proxies, amendments of bylaws, and to the extent expressly provided otherwise in the ANR bylaws.

Holders of a majority of the common stock, voting together as a single class, may also adopt, amend or repeal the ANR bylaws, except the affirmative vote of the holders of at least 75% of the outstanding common stock, voting together as a single class is required to amend, repeal or adopt any provision inconsistent with portions of the ANR bylaws governing special meetings of stockholders and directors, quorum requirements of such special meetings, voting rights and proxies, record dates, certain provisions regarding directorships and amendments of bylaws; however, no such vote or consent is required to amend or repeal any provision of the bylaws to remove any rights granted to holders of a series or class of preferred stock or references to the same.

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DIRECTORS AND EXECUTIVE OFFICERS OF CONTURA AFTER THE MERGERS
References in this “Directors and Executive Officers of Contura After the Mergers” section to “we,” “us,” “our” and other similar terms refer to Contura Energy, Inc. and its consolidated subsidiaries before or after giving effect to the mergers, as the context requires. References in this “Directors and Executive Officers of Contura After the Mergers” section to the “combined company” refer to Contura Energy, Inc. and its consolidated subsidiaries after giving effect to the mergers.
Directors and Executive Officers of Contura After the Mergers
The following table sets forth the names, ages and titles of Contura’s directors, director nominees and executive officers.
Name
 
Age
 
Position
Kevin S. Crutchfield
 
57
 
Chief Executive Officer and Director
Charles Andrew Eidson
 
42
 
Executive Vice President and Chief Financial Officer
Mark M. Manno
 
48
 
Executive Vice President, Chief Administrative and Legal Officer and Secretary
J. Scott Kreutzer
 
47
 
Executive Vice President and Chief Operating Officer
Kevin Stanley
 
43
 
Executive Vice President and Chief Commercial Officer
Jill M. Harrison
 
57
 
Senior Vice President and General Counsel
Suzan E. Moore
 
58
 
Senior Vice President, Administration and Chief Human Resources Officer
Neale X. Trangucci
 
61
 
Chairman of the Board
Albert E. Ferrara, Jr.
 
69
 
Director
Anthony J. Orlando
 
59
 
Director
Michael J. Ward
 
67
 
Director
John E. Lushefski
 
62
 
Director Nominee
Daniel J. Geiger
 
68
 
Director Nominee
David J. Stetson
 
62
 
Director Nominee
Harvey L. Tepner
 
61
 
Director Nominee
Each officer serves at the discretion of Contura’s board of directors and holds office until his or her successor is elected and qualified or until his or her earlier resignation or removal. There are no family relationships among any of Contura’s directors or executive officers.
Set forth below is a description of the background of the persons named above.
Kevin S. Crutchfield has served as Contura’s chief executive officer, and as a director, since July 2016. He previously served as chairman and chief executive officer of Predecessor Alpha, having been appointed as a director in November 2007, elected as chief executive officer at the time of Alpha’s merger with Foundation Coal in July 2009 and named chairman in May 2012. He was also a member of the safety, health, environmental and sustainability committee from the time of the merger. Prior to that time, he served as Predecessor Alpha’s president from January 2007 until the merger. Mr. Crutchfield also served as Predecessor Alpha’s executive vice president from November 2004 until January 2007. Predecessor Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on August 3, 2015.
Mr. Crutchfield joined Predecessor Alpha’s management team as the executive vice president of Alpha Natural Resources, LLC and vice president of ANR Holdings, LLC in March 2003, and also served as the executive vice president of ANR Holdings, LLC from November 2003 until ANR Holdings, LLC was merged with another of Alpha’s subsidiaries in December 2005. From June 2001 through January 2003, he served as vice president of El Paso Corporation, a natural gas and energy provider, and president of Coastal Coal Company, a coal producer and affiliate of El Paso Corporation, acquired by Predecessor Alpha in 2003.

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Prior to joining El Paso, he served as president and CEO of AMVEST Corporation, a coal and gas producer and provider of related products and services, and held executive positions at AEI Resources, Inc., a coal producer, including president and chief executive officer. Before joining AEI Resources, he served as the chairman, president and chief executive officer of Cyprus Australia Coal Company (“Cyprus”) and held executive operating management positions with Cyprus in the U.S. before being relocated to Sydney, Australia in 1997. He worked for Pittston Coal Company, in various operating and executive management positions from 1986 to 1995, including as vice president operations prior to joining Cyprus.
Mr. Crutchfield serves on the board of directors of Coeur Mining Inc. He also served on the board of directors of King Pharmaceuticals, Inc. from February 2010 until the first quarter of 2011, when he resigned in connection with the acquisition of King Pharmaceuticals by Pfizer, and on the board of directors of Rice Energy Inc. from January 2014 to November 2014. Mr. Crutchfield holds a bachelor of science degree in mining and minerals engineering from Virginia Polytechnic Institute and State University, and he also completed the executive program at the University of Virginia’s Colgate Darden School of Business. For these reasons, Contura believes Mr. Crutchfield is qualified to serve as a director.
Charles Andrew Eidson has served as Contura’s executive vice president and chief financial officer since July 2016. He previously served as executive vice president and chief financial officer of Alpha Natural Resources, Inc., a position he held from March 2016. His previous roles with Predecessor Alpha included senior vice president, strategy and business development, and vice president, mergers and acquisitions. Predecessor Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on August 3, 2015.
Prior to joining Predecessor Alpha in July 2010, Mr. Eidson held several financial positions across industry sectors, including at PricewaterhouseCoopers LLP, Eastman Chemical Company, and most recently Penn Virginia Resource Partners, where he led mergers and acquisitions projects for the coal segment and managed the budgeting and planning process. Mr. Eidson holds a bachelor of science degree, cum laude, in commerce and business administration from the University of Alabama and a master of business administration degree from Milligan College.
Mark M. Manno has served as Contura’s executive vice president, chief administrative and legal officer and secretary since January 2018 and previously served as its executive vice president, general counsel, secretary and chief procurement officer from July 2016. He previously served as executive vice president, general counsel, secretary and chief procurement officer for Alpha Natural Resources, Inc., positions he held from December 2015. Prior to these positions, Mr. Manno served as senior vice president, chief information and sourcing officer from February 2015, and senior vice president, strategic sourcing and information technology for Predecessor Alpha’s wholly owned subsidiary, Alpha Natural Resources Services, LLC, from March 2014. Mr. Manno previously served as vice president, strategic sourcing and materials management from April 2012, and also as vice president and assistant general counsel. Predecessor Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on August 3, 2015. 
Before joining Predecessor Alpha in February 2010, Mr. Manno was general counsel and real estate division president with SJ Strategic Investments in Bristol, Tennessee. Earlier in his career, he served in multiple roles with King Pharmaceuticals, Inc. and was an attorney with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, in Johnson City, Tennessee. Before joining the private sector, Mr. Manno was an officer in the U.S. Navy and a graduate of the U.S. Naval Academy. He completed his master of business administration degree at Mississippi State University and his law degree at the University of Memphis.
J. Scott Kreutzer has served as Contura’s executive vice president and chief operating officer since January 2018. He previously served as Contura’s senior vice president, land and environmental affairs since July 2016. Prior to that position, Mr. Kreutzer served in a number of roles at Alpha Natural Resources, Inc., most recently senior vice president, land and gas, a position he held from December 2015. Predecessor Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on August 3, 2015.
Prior to joining Predecessor Alpha in 2011, Mr. Kreutzer served in several legal practice positions supporting the coal industry, and more recently with TECO Coal Corporation, where he managed and oversaw activities related to lease compliance, geology, land acquisition, royalties, and third-party service contracts. Mr. Kreutzer holds a bachelor of arts degree from Transylvania University and earned his law degree, cum laude, from Northern Kentucky University.
Kevin Stanley has served as Contura’s executive vice president and chief commercial officer since April 2017. He previously served as Contura’s senior vice president, sales and marketing since July 2016 and as senior vice president,

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business planning for Predecessor Alpha, a position he held from December 2015. Prior to this position, Mr. Stanley served as vice president, business planning for Alpha from 2012 and in several additional roles, including as director of corporate development from 2011 for Alpha Australia, LLC, a wholly owned subsidiary of Predecessor Alpha. Predecessor Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on August 3, 2015.
Prior to joining Predecessor Alpha in 2003, Mr. Stanley served in various accounting roles for subsidiaries of Massey Energy . Mr. Stanley holds a bachelor of science degree in accounting from the University of Virginia’s College at Wise.
Jill M. Harrison has served as Contura’s senior vice president and general counsel since January 2018. She previously served as senior vice president and deputy general counsel for subsidiary Contura Coal Sales, LLC since July 2016. Prior to that role, Ms. Harrison served as senior vice president and general counsel for Alpha Coal Sales Co., LLC, a subsidiary of Alpha Natural Resources, Inc., a position she held from February 2014. Predecessor Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on August 3, 2015.
Prior to joining Predecessor Alpha in 2006, Ms. Harrison was a shareholder in the law firm of PennStuart, serving a seventeen-year tenure with the firm representing coal, oil and natural gas industry clients. Ms. Harrison earned both a bachelor of science degree in business administration and a law degree from the University of Tennessee.
Suzan E. Moore has served as Contura’s senior vice president, administration and chief human resources officer since January 2018. She previously served as senior vice president and deputy general counsel since July 2016. Prior to that position, Ms. Moore served in a number of legal and human resources roles at Alpha Natural Resources, Inc., most recently senior vice president and deputy general counsel, human resources, benefits and safety, a position she held since January 2016. Predecessor Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code on August 3, 2015.
Prior to joining Predecessor Alpha in 2003, Ms. Moore held several legal positions within the coal industry, including at Pittston Coal Company and Westmoreland Coal Company, as well as in private practice at PennStuart. Ms. Moore earned a bachelor of arts degree, with highest honors, at the University of Tennessee and a law degree at the University of Virginia.
Neale X. Trangucci has served as one of Contura’s directors since July 2016. He is chairman of Contura’s board of directors and chairman of the nominating and corporate governance committee of Contura’s board of directors. In 2014, he formed NXT Partners LLC, where he is the principal / owner. He served as co-head of bankruptcy and distressed investments with Mason Capital Management from 2005 until 2014 and previously held senior positions focused on distressed assets and investments with Stonehill Investment Corp / WHX Corp. (including as a partner in Stonehill and as chief executive officer of WHX Corp.), Salomon Brothers Inc. in New York City and Continental Illinois Bank. Mr. Trangucci has also served on the board of directors of George Industries Inc., Automation Tooling Systems, WHX Corp., Wheeling-Pittsburgh Corp., Wheeling-Nisshin Inc., Photowatt International, Handy & Harman and Unimast. Mr. Trangucci earned a bachelor of science degree from Bucknell University and a master’s degree in international finance and banking from Columbia University. For these reasons, Contura believes Mr. Trangucci is qualified to serve as a director.
Albert E. Ferrara, Jr. has served as one of Contura’s directors since July 2016 and is chairman of the audit committee of Contura’s board of directors. Mr. Ferrara has spent over forty years in the metals and related resource industry. Mr. Ferrara served in senior executive positions with AK Steel, including senior vice president finance and chief financial officer, from 2003 until his retirement in 2013. Before joining AK Steel, Mr. Ferrara spent thirty years with United States Steel Corporation/USX Corporation in a variety of roles domestically and internationally, including senior vice president finance and treasurer. Mr. Ferrara has served since 2014 as a principal of Amelia Metals LLC, a consulting firm specializing in the metals and mining industries. Mr. Ferrara holds a bachelor of science in commerce with distinction and a juris doctor degree, both from the University of Virginia. He has been licensed to practice law in the State of Pennsylvania. For these reasons, Contura believes Mr. Ferrara is qualified to serve as a director.
Anthony J. Orlando has served on Contura’s board of directors since September 2017 and serves on Contura’s Audit, Compensation, Nominating and Corporate Governance and Safety, Health and Environmental Committees. Mr. Orlando has nearly thirty years of experience in various executive leadership, financial, business development, strategic, operational and engineering management positions with the global energy-from-waste company, Covanta Holding Corporation, where he most recently served as President and Chief Executive Officer from 2004 until 2015. Prior to joining Covanta, Mr. Orlando spent six years in the petrochemical industry as an engineer for Foster Wheeler Corporation. Mr. Orlando currently serves on

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the board of directors of Landstar Systems Inc. and previously served on the board of directors of Covanta Holding Corporation. Mr. Orlando earned a master’s degree in business administration from Seton Hall University and a bachelor of science, civil engineering degree from Villanova University. For these reasons, Contura believes Mr. Orlando is qualified to serve as a director.
Michael J. Ward has served on Contura’s board of directors since September 2017 and serves as chair of the Board’s Safety, Health and Environmental Committee of Contura’s board of directors. Mr. Ward spent forty years serving in various executive leadership, financial, and coal marketing positions with one of the nation’s premier transportation and logistics companies, CSX Corporation, and its predecessor company, Chessie System, Inc., most recently as Board Chairman and Chief Executive Officer from 2003 until 2017. Mr. Ward currently serves on the boards of directors of Ashland Global Holdings, Inc. and PNC Financial Services Group, Inc., as well as a number of boards of various local, regional, and national not-for-profit organizations. Mr. Ward earned a master’s degree in business administration from the Harvard Business School and a bachelor of arts degree from the University of Maryland. For these reasons, Contura believes Mr. Ward is qualified to serve as a director.
John E. Lushefski is a director nominee for Contura’s board of directors and joined the board of directors of each of ANR and Holdings in July 2016. Most recently, Mr. Lushefski served as Senior Vice President and Chief Financial Officer of Patriot Coal Corporation from 2012 to 2015, where he also served on the board of directors. Prior to Mr. Lushefski’s roles at Patriot Coal Corporation, he held numerous management and advisory positions with several large companies. He was a partner at BVisions Advisory LLP and served as Chief Financial Officer for both Millennium Chemicals Inc. and Peabody Holding Company Inc. Additionally, Mr. Lushefski served on the board of directors of Suburban Propane, LP and Smith Corona Corporation and on the governance committee of Equistar Chemicals, L.P. He also acted as an advisory board member for East Coast Power Systems, Inc. and Restricted Stock Systems, Inc. Mr. Lushefski is a Certified Public Accountant and received his B.S. in Business Administration and Accounting from Pennsylvania State University. For these reasons, Contura believes Mr. Lushefski is qualified to serve as a director.
David J. Geiger is a director nominee for Contura’s board of directors and joined the board of directors of each of ANR and Holdings in February 2018. Mr. Geiger has been a Managing Member of D.J. Geiger & Co., LLC, a mining consulting firm, since 2010. During his time as a Managing Member, from 2011 to 2012, Mr. Geiger was also the Lead Independent Director for Lipari Energy, a major coal producer in Eastern Kentucky and a publicly traded company at that time. Prior to those positions, Mr. Geiger was the CEO and Chairman for Lexington Coal Company from August 2004 to July 2010. During his tenure at Lexington Coal Company, Mr. Geiger oversaw the reduction of reclamation liabilities and the eventual merger of the company into a subsidiary of a national coal production company. From 1982 to 2004, Mr. Geiger served as Vice President, Engineering of the James River Coal Company, and has over 35 years of experience in the coal industry. Mr. Geiger earned a B.S. in Civil Engineering from Ohio University, and is a Registered Professional Engineer in the states of Kentucky and West Virginia. For these reasons, Contura believes Mr. Geiger is qualified to serve as a director.
David J. Stetson is a director nominee for Contura’s board of directors and was appointed as Chairman of the Board of Directors and Chief Executive Officer of ANR and Holdings in July 2016. Mr. Stetson is a seasoned executive with extensive experience in management, finance, mergers and acquisitions, corporate governance, restructuring, the law and reclamation. Mr. Stetson has held a myriad of leadership positions, including Chief Executive Officer, Chief Restructuring Officer, and Senior Advisor for various energy companies, including Trinity Coal Corporation, American Resources Offshore, Inc., Lexington Coal Company, and Lipari Energy Inc. Mr. Stetson earned an M.B.A from the University of Notre Dame, a J.D. from the Brandeis School of Law at the University of Louisville, and a B.S. from Murray State University. For these reasons, Contura believes Mr. Stetson is qualified to serve as a director.
Harvey L. Tepner is a director nominee for Contura’s board of directors and joined the board of directors of each of ANR and Holdings in July 2016, and he serves as the lead independent director of the Board of Directors of each of ANR and Holdings. He is a private investor and serves on the board of directors of Core-Mark Holding Company, Inc., Clear Channel Outdoor Holdings, Inc., and several private companies, including Nine West Holdings, Inc. Previously, Mr. Tepner was a senior executive of WL Ross & Co. LLC, and a partner in WL Ross funds, where his responsibilities included managing certain portfolio companies and sourcing and structuring investments in stressed and distressed loans and debt securities. While at WL Ross, Mr. Tepner was a member of the board of directors of International Textile Group, Inc., Plascar Participacoes Industrias SA of Brazil, and OCM India Limited, publicly traded companies controlled by various WL Ross funds. Prior to WL Ross, Mr. Tepner was an investment banker at several Wall Street firms including Loeb Partners

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Corporation, Rothschild Inc. and Dillon Read & Co. Mr. Tepner received a B.A. from Carleton University and an M.B.A. from Cornell University. He also holds the dual designations of Chartered Accountant and Chartered Professional Accountant (Canada). Mr. Tepner is a member of the National Association of Corporate Directors, the International Insolvency Institute and the American Bankruptcy Institute, of which he was a former director. For these reasons, Contura believes Mr. Tepner is qualified to serve as a director.
Board of Directors
Effective as of the closing of the mergers, the size of the combined company’s board of directors will be expanded to nine directors. Five board seats will be filled by the current members of Contura’s board of directors and four board seats will be filled by individuals designated by Alpha. The initial Alpha designees to be appointed to the combined company’s board of directors at closing are expected to be John E. Lushefski, Daniel J. Geiger, David J. Stetson and Harvey L. Tepner (who are each current members of the board of directors of Holdings), unless any of Messrs. Lushefski, Geiger or Tepner fails to meet applicable independence standards as of the closing, in which case such individual will not be appointed to the combined company’s board of directors at closing. If any of Messrs. Lushefski, Geiger, Stetson or Tepner is unable to or has declined to serve on the combined company’s board of directors prior to the closing (or is not appointed to the combined company’s board of directors because he failed to meet applicable independence standards as of the closing), Alpha may designate a replacement subject to the approval of Contura’s board of directors, which cannot be unreasonably withheld (unless such replacement fails to meet applicable independence standards as determined by Contura’s board of directors in its reasonable discretion exercised in good faith).
Following the closing of the mergers and through the completion of the combined company’s 2019 annual meeting of stockholders, the size of the combined company’s board of directors may not be changed except to reduce the size of the board in the event of any resignation or other cessation of service of one or more director, and the combined company’s board of directors must, subject to its fiduciary duties, nominate for election, unanimously recommend for election and solicit proxies in favor of the election of, each of the Alpha designees to the combined company’s board of directors.
All of Contura’s directors serve one-year terms, with all directors elected each year. Under the NYSE rules, Contura will be required to have its compensation and nominating and corporate governance committees be comprised of a majority of independent directors within 90 days the date of the effectiveness of the registration statement of which this joint proxy statement and prospectus is a part, and Contura will be required to have a majority of independent directors on its board of directors and to have its compensation and nominating and corporate governance committees be comprised entirely of independent directors within one year of the date of listing on the NYSE.
In evaluating director candidates, Contura’s board of directors assess whether a candidate possesses the integrity, judgment, knowledge, experience, skill and expertise that are likely to enhance the ability of Contura’s board of directors to manage and direct Contura’s affairs and business, including, when applicable, to enhance the ability of committees of Contura’s board of directors to fulfill their duties. Contura has no minimum qualifications for director candidates. In general, however, Contura’s board of directors and members of the nominating and corporate governance committee review and evaluate both incumbent and potential new directors in an effort to achieve a diversity of skills and experience among Contura’s directors in light of the following criteria:
•
experience in business, government, education, technology or public interests;
•
high-level managerial experience in large organizations;
•
breadth of knowledge regarding Contura’s business or industry;
•
specific skills, experience or expertise related to an area of importance to us, such as energy production, consumption, distribution or transportation, government, policy, finance or law;
•
moral character and integrity;
•
commitment to Contura’s stockholders’ interests;
•
ability to provide insights and practical wisdom based on experience and expertise;

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•
ability to read and understand financial statements; and
•
ability to devote the time necessary to carry out the duties of a director, including attendance at meetings and consultation on company matters.
Board Committees
Contura’s board of directors currently has an audit committee, a compensation committee, a nominating and corporate governance committee and a safety, health and environmental committee.
Audit Committee
Effective as of the closing of the mergers, Contura’s audit committee is expected to consist of Messrs.               ,                and               , with Mr.               serving as chairman. Mr.               will be Contura’s audit committee “financial expert” as that term is defined in Item 401(h) of Regulation S-K. Messrs.               ,               and               will qualify as “independent” members of the audit committee as defined in the rules of the SEC and NYSE setting forth independence requirements for public company audit committees. Contura is required by SEC and NYSE rules to have an audit committee composed of a majority of independent directors within 90 days of the date of the date of listing on the NYSE and an audit committee composed entirely of independent directors within one year from that date. Upon the closing of the mergers, Contura will be in compliance with these requirements regarding the independence of Contura’s audit committee.
The audit committee provides assistance to Contura’s board of directors in monitoring the quality, reliability and integrity of Contura’s accounting policies and financial statements, overseeing Contura’s compliance with legal and regulatory requirements and reviewing the independence, qualifications and performance of Contura’s internal and independent auditors. The audit committee is also responsible for (1) the appointment, compensation, and oversight of Contura’s independent auditor, (2) approving the overall scope of the audit and approving any non-audit services to be performed by the independent auditor, (3) annually reviewing a report by the independent auditor describing the firm’s internal quality control procedures, any material issues raised by the most recent internal quality control review, or peer review, of the auditing firm, and all relationships between us and the independent auditor, (4) discussing the annual audited and quarterly unaudited financial statements with management and the independent auditor, (5) discussing the Company’s press releases, as well as financial information and earnings guidance provided to analysts and rating agencies, (6) reviewing and discussing risk assessment and risk management policies as well as procedures management has established to monitor compliance with Contura’s Code of Business Ethics, (7) meeting periodically, but separately, with the independent auditor, internal auditors and management, (8) reviewing with the independent auditor any audit problems or difficulties and management’s response, (9) preparing an audit committee report as required by the SEC to be included in Contura’s annual proxy statement, (10) establishing policies regarding the Company’s hiring of employees or former employees of the independent auditor, (11) annually reviewing and reassessing the adequacy of audit committee’s written charter and recommending any proposed changes to the board of directors, (12) reporting regularly to the full board of directors, (13) conducting an annual performance review and evaluation of the audit committee, and (14) handling other matters that are specifically delegated to the audit committee by the board of directors from time to time.
Compensation Committee
Effective as of the closing of the mergers, Contura expects that the members of the compensation committee will be Messrs.               ,               and               , with Mr.               serving as chairman of the committee. Messrs.               ,                and               will qualify as “independent” members of the compensation committee as defined in the rules of the NYSE setting forth independence requirements for public company compensation committees. Contura is required by the NYSE rules to have a compensation committee composed of a majority of independent directors within 90 days of the date of listing on the NYSE and a compensation committee composed entirely of independent directors within one year from that date. Upon the closing of the mergers, Contura will be in compliance with these requirements regarding the independence of Contura’s compensation committee.
The compensation committee and its designated subcommittees are responsible for assisting Contura’s board of directors in all matters relating to the compensation of Contura’s directors and executive officers and complying with legal and regulatory requirements as they relate to matters of compensation, including (1) reviewing and recommending to the board of

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directors compensation, including base salary, bonuses and benefits, of Contura’s chief executive officer, (2) approving compensation, including salary, bonuses and benefits, of Contura’s other executive officers, (3) reviewing, in consultation with Contura’s chief executive officer, Contura’s management succession planning, (4) reviewing and approving corporate goals and objectives relevant to the compensation of executive officers and evaluating their performance in light of these goals and objectives, (5) reviewing and recommending to the board of directors executive compensation policies and practices for Contura’s executive officers generally, (6) reviewing director compensation and recommending any proposed changes to the board of directors, (7) reviewing and recommending to the board of directors, or approving, any employment contract or similar agreement for any executive officer, (8) serving as counsel to Contura’s chief executive officer regarding compensation matters, (9) reviewing, approving and making recommendations to the board of directors with respect to executive compensation, including incentive compensation plans and equity-based plans, and administering such plans, (10) monitoring compliance with applicable laws relating to compensation of executive officers, (11) producing a compensation discussion and analysis disclosure or, if applicable, a compensation committee report on executive compensation as required by the SEC to be included in the Company’s annual proxy statement or annual report on Form 10-K filed with the SEC, (12) reporting to the full board of directors following the compensation committee’s meetings or actions, (13) conducting an annual performance evaluation of the compensation committee, and (14) handling other matters that are specifically delegated to the compensation committee by the board of directors from time to time.
The compensation committee charter sets forth the committee’s role and responsibilities relative to managing and approving the components of compensation for Contura’s executive officers and certain other responsibilities. Under its charter, Contura’s compensation committee is authorized to delegate its responsibilities to one or more subcommittees, and may invite other directors and officers of the Company to its meetings in order to carry out its responsibilities. Under the terms of the Contura Energy, Inc. Management Incentive Plan, as amended, as described under “—Management Incentive Plan” below, and the Contura Energy, Inc. 2018 Long‑Term Incentive Plan, as described under “—2018 Long-Term Incentive Plan” below, Contura’s compensation committee is authorized to administer these plans and may delegate its authority thereunder. Pursuant to the Contura Energy, Inc. Annual Incentive Bonus Plan, as described under “—Contura Energy, Inc. Annual Incentive Bonus Plan” below, Contura’s compensation committee may delegate its powers under the plan to Contura’s chief executive officer with respect to participants not subject to Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”). In addition, the Contura Energy, Inc. Deferred Compensation Plan, which was approved by Contura’s compensation committee on April 28, 2017 and is described under “ —Deferred Compensation Plan” below, authorizes Contura’s chief executive officer and Contura’s chief administrative officer to designate employees eligible for participation in the plan with the approval of Contura’s compensation committee, and otherwise authorizes Contura’s compensation committee to delegate such approval authority to officers of the Company.
Contura’s compensation committee has delegated to Contura’s chief executive officer authority to administer, grant, and determine awards of non-executive employees under the Contura Energy, Inc. Annual Incentive Bonus Plan and the Management Incentive Plan, as amended and to add eligible non-executive employee participants in Contura’s Key Employee Separation Plan, as described below under “-Key Employee Separation Plan.”
Independent Compensation Consultants
The compensation committee has the authority to engage the services of outside advisors and, the compensation committee retained The POE Group, Inc. (the “POE Group”) in December 2016 to assist the compensation committee with its review of Contura’s executive and director compensation programs including, without limitation: (i) reviewing the competitive pay practices for benchmarking purposes with respect to compensation and performance, (ii) conducting a competitive assessment of each executive’s total direct compensation (e.g., base salary, annual and long-term incentives), (iii) developing a trends report regarding executive compensation and keeping the compensation committee apprised of regulatory changes and other developments related to executive compensation, (iv) advising the compensation committee regarding annual and long-term incentive plan design, (v) performing a competitive assessment of non-employee director compensation, (vi) assisting with the preparation of proxy disclosures and (vii) assisting with risk assessments in connection with Contura’s compensation programs. To maintain the consultants’ independence from management, the consultants did not provide any services to Contura’s company, including to members of management, other than services provided to the compensation committee. Prior to retaining the POE Group, the committee reviewed the following with the POE Group: (i) whether the POE Group provided other services to the Company, (ii) the amount of fees received from us by the POE Group as a percentage of the total revenue of the POE Group, (iii) policies and procedures of the POE Group that are designed to prevent conflicts of interest, (iv) any business or personal relationships of the consultants or the POE Group with members of

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the compensation committee or Contura’s executive officers, and (v) any of Contura’s stock owned by the consultants. In each case, the compensation committee found that the POE Group and the POE Group consultants did not have any relationships with us or own stock in the Company.
The independent compensation consultants reported directly to the compensation committee and, with the consent of the committee, coordinated and gathered information with which to advise the committee from members of management and human resources personnel. The work of the POE Group for the committee did not present any conflicts of interest that required the committee’s consideration.
In May 2018, Pearl Meyer was retained by the compensation committee to advise it on executive compensation matters. The POE Group no longer advises the compensation committee.
For more information regarding Contura’s compensation committee’s processes for determining executive officer compensation and the role of Contura’s independent compensation consultants in executive compensation matters, see “Executive Compensation-Executive Compensation Process.”
Nominating and Corporate Governance Committee
Effective as of the closing of the mergers, Contura expects that Contura’s nominating and corporate governance committee will consist of Messrs.               ,               and               , with Mr.               serving as chairman of the committee. Messrs.               ,               and               will qualify as “independent” members of the nominating and corporate governance committee as defined in the rules of the NYSE setting forth independence requirements for public company nominating and corporate governance committees. Contura is required by the NYSE rules to have a nominating and corporate governance committee composed of a majority of independent directors within 90 days of the date of listing on the NYSE and a nominating and corporate governance committee composed entirely of independent directors within one year from that date. Upon the closing of the mergers, Contura will be in compliance with these requirements regarding the independence of Contura’s nominating and corporate governance committee.
The nominating and corporate governance committee assists the board of directors in identifying individuals qualified to become board members and executive officers and selecting, or recommending that the board select, director nominees for election to the board of directors and its committees. The nominating and corporate governance committee is also responsible for (1) developing and recommending governance policies and procedures to the board of directors, (2) reviewing conflicts of interest that may affect directors, (3) monitoring Contura’s compliance with corporate governance practices and policies, (4) leading the board of directors in its annual review of the board’s performance, (5) making recommendations regarding committee purpose, structure and operation and (6) overseeing and approving a management continuity planning process.
Safety, Health and Environmental Committee
Effective as of the closing of the mergers, we expect that the members of the safety, health and environmental committee will be Messrs.               ,               and               , with Mr.               serving as chairman of the committee.
The safety, health and environmental committee provides oversight of the Company’s performance in relation to safety, occupational health and environmental issues, including: (i) reviewing the objectives and policies for the Company relative to the protection of the safety and health of employees, contractors, customers, the public and the environment; (ii) overseeing the Company’s monitoring and enforcement of these policies and related procedures and practices and, in connection with this oversight, assessing reports and other information provided by company management and such resources as the committee deems appropriate, (iii) overseeing the Company’s policies and procedures for identifying, assessing, monitoring and managing the principal risks in the Company’s business associated with safety and occupational health and the protection of the environment and, in connection with this oversight, assessing reports and other information provided by company management and such resources as the committee deems appropriate; (iv) discussing with management annually the scope, plans, and resources for conducting audits of the Company’s safety, health and environmental practices and performance and, at least annually, reviewing significant results of these audits; (v) reviewing the Company’s response to significant safety, health and environmental-related public policy, legislative, regulatory, political and social issues, trends or events that may affect the business operations, financial performance, or public image of the Company or the industry and (vi) performing other duties as assigned to it from time to time by the board of directors.

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Code of Business Conduct and Ethics
The Contura board of directors has adopted a Code of Business Ethics (the ‘‘Code of Ethics’’) that is applicable to all directors, employees and officers of the Company. The Code of Ethics will constitute Contura’s ‘‘code of ethics’’ within the meaning of Section 406 of the Sarbanes-Oxley Act and will be available on Contura’s website at www.conturaenergy.com. Information on Contura’s website is not part of this joint proxy statement and prospectus and does not constitute an offer for the sale of Contura’s securities. In addition, printed copies of the Code of Ethics will be available upon written request to Investor Relations, 340 Martin Luther King Jr. Blvd., Bristol, Tennessee 37620. Contura intends to disclose future amendments to certain provisions of the Code of Ethics, or waivers of such provisions applicable to Contura’s directors and executive officers, on Contura’s website.
Corporate Governance Guidelines
Contura’s board of directors will adopt corporate governance guidelines in accordance with the corporate governance rules of the NYSE.
Compensation Committee Interlocks and Insider Participation
None of Contura’s executive officers serves, or has served during the past year, as a member of Contura’s board of directors or compensation committee of any other company that has one or more executive officers serving as a member of Contura’s board of directors or compensation committee.
Compensation of Our Directors
In 2017, pursuant to our Amended and Restated Non-Employee Director Compensation Policy (the “Director Policy”), each non-employee director received an annual equity award of $75,000 (which amount has been increased to $100,000 commencing in 2018) granted in the form of restricted stock units (“RSUs”) and an annual cash retainer of $75,000. Annual cash retainers are paid in quarterly installments, and are prorated for any partial quarter of service. In addition to the annual retainer, non-employee directors are entitled to receive meeting fees and additional cash retainers in connection with service as chairs or members of the committees of our board of directors. The annual equity awards and cash retainers, meeting fees and committee fees are paid in respect of the period from May 1 st through April 30 th of each year. The following chart summarizes the additional cash retainers to which non-employee directors may be entitled. Non-employee directors generally have the opportunity to elect, pursuant to the Director Policy, as described below under “Directors and Executive Officers of Contura after the Mergers—Non-Employee Directors Deferred Compensation Program”, to receive RSUs in lieu of the annual cash retainer.
Position
Annual Fee
Non-Employee Chairman of the Board
$
75,000

Lead Independent Director if Employee Director is Chairman of the Board
20,000

Audit Committee Chair
30,000

Compensation Committee Chair
20,000

Safety, Health and Environmental Committee Chair
15,000

Nominating and Corporate Governance Committee Chair
12,000

On January 18, 2017, our compensation committee approved an amendment to the Director Policy, which modified annual cash retainer amounts for certain board positions. In addition, the amendment provided for a true-up payment for directors who held these positions during the period from August 1, 2016 to January 18, 2017.
Directors earn a committee retainer of $5,000 per year for each committee on which the director serves in a non-chair capacity. Non-employee directors are also eligible to earn a meeting fee of $2,000 for each board meeting and $500 for each committee meeting attended, in each case, beginning with the fifth such meeting attended during the applicable year.

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Non-employee directors’ annual equity awards are currently granted in the form of RSUs. These awards are granted pursuant to RSU agreements that generally provide for vesting on the first anniversary of the grant date. The awards accelerate and vest in connection with a change in control of our company or an initial public offering or if the director ceases to serve as a member of our board of directors as a result of permanent disability or death. Annual RSU grants are made at the beginning of each annual compensation cycle, and if a director is appointed to the board mid-cycle, the compensation committee has discretion to determine whether such director will be eligible to receive a full or prorated annual RSU retainer or a special grant of RSUs.
Additionally, we reimburse directors for travel expenses incurred in connection with attending board of directors, committee and stockholder meetings and for other business-related expenses, in accordance with our reimbursement policies, as they may be amended from time to time.
In recognition of the extraordinary service of our non-employee directors in connection with a previously contemplated offering of shares of our common stock, on June 9, 2017, our compensation committee and board of directors approved special, one-time grants of RSUs to be made to each of our non-employee directors in the amount of $75,000, which vested on the first anniversary of the grant date. These RSU awards were granted to all of our non-employee directors, with the exception of Jonathan Segal, who elected to waive his award.
On June 16, 2017, our board of directors authorized and declared the Special Dividend. In the event of certain corporate transactions or distributions (including an extraordinary cash dividend such as the Special Dividend), our compensation committee is required under the terms of our Management Incentive Plan (the “MIP”) to make certain adjustments to the outstanding awards under the MIP to prevent dilution or enlargement of the benefits under such awards. To prevent the dilution of the benefits under outstanding RSU awards that we granted to our non-employee directors, our compensation committee approved a dividend equivalent payment to be made to our directors in respect of their outstanding RSU awards. The dividend equivalent payment, which was in an amount per RSU equal to the per-share Special Dividend (approximately $8.997 for each share underlying outstanding RSU awards) and was paid on July 13, 2017, was in respect of the directors’ 2016 annual RSU awards, 2016 cash retainers that they elected to defer into RSUs, 2017 annual RSU awards, which were granted as of May 31, 2017, and the special one-time RSU grants approved on June 9, 2017 (as described above).
Our compensation committee is required under the terms of the MIP to allocate to existing MIP participants any remaining shares of common stock authorized to be granted under the MIP prior to the completion of a change in control or an initial public offering. In recognition of this requirement, on July 13, 2017, our compensation committee and board of directors in connection with a previously contemplated offering of shares of our common stock, approved grants of RSUs to our non-employee directors under the MIP on a pro rata basis based on the number of shares of common stock underlying each MIP participant’s outstanding MIP awards. The RSUs vested in full on May 30, 2018.
On September 7, 2017, in connection with their appointment to our board of directors, Messrs. Orlando and Ward were each granted a one-time RSU award in the amount of $100,000. These RSUs were granted based on a per-share price of our common stock of $63.59 and will vest on the first anniversary of the grant date. In addition, in connection with their appointments to the board of directors, Messrs. Orlando and Ward each received (i) an initial annual grant of RSUs for the applicable director compensation cycle in an amount equal to the prorated portion of $100,000, with a grant date of September 7, 2017 and the number of shares underlying such grant determined based on a per-share price of our common stock of $63.59, and which vested on April 30, 2018, and (ii) an initial annual cash retainer for the applicable director compensation cycle in an amount equal to the prorated portion of $75,000.
Annual equity awards for the May 2018 through April 2019 director compensation cycle were made on May 1, 2018, and the cash retainers for this same period are paid quarterly in arrears.
All compensation paid to Mr. Segal in his capacity as a director of the company was paid to Highbridge, Mr. Segal’s employer, pursuant to an agreement between the company and Mr. Segal.
Our chief executive officer, who is our only employee director, did not receive any additional compensation in connection with his service on our board of directors. The compensation paid to our chief executive officer is reported in the Summary Compensation Table and the other tables below beginning with “Executive Compensation—2017 Summary Compensation Table.”

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Stock Ownership Guidelines
To align our non-employee directors’ interests with those of our stockholders, we have established stock ownership guidelines for our executives and non-employee directors. See “Executive Compensation—Executive Compensation Process” below for additional information about our stock ownership guidelines.
Non-Employee Directors Deferred Compensation Program
In August 2016, the board of directors approved the Non-Employee Director Restricted Stock Unit Election program for deferrals of cash compensation that would otherwise be paid to non-employee directors. The purpose of the program is to permit non-employee directors of the Company to defer the receipt of compensation that would otherwise become payable to them. According to the terms of the program, participants may elect to defer 100% of their annual cash retainer to be received in the form of RSUs. The non-employee directors will also have to elect the length of the deferral, which can be until the director’s separation of service from the Company or a specific future date which is not to be earlier than thirty days following the one-year anniversary of the date of grant. Each director’s account balance will be distributed in the form of shares of common stock on or within 30 days of the distribution date elected by the director. In the event of a change in control of our company (or, in the case of certain RSUs, an initial public offering), RSUs may be distributed to participants, regardless of any applicable elected distribution date in connection with the change in control (or, when applicable, initial public offering).
2017 Director Compensation Table
The following table sets forth information concerning the compensation for our directors in respect of the fiscal year ended December 31, 2017.
Name
 
Fees Earned or Paid in Cash
($)
 
Stock Awards
($) (1)
 
Option Awards
($)
 
Non-Equity Incentive Plan Compensation
($)
 
Change in Pension Value and
Non-qualified Deferred Compensation Earnings
($)
 
All Other Compensation
($) (2)
 
Total ($)
Albert E. Ferrara, Jr.
 
$
162,000

 
$
155,408

 
$
—

 
$
—

 
$
—

 
$
103,277

 
$
420,685

Anthony J. Orlando
 
38,000

 
213,027

 
—

 
—

 
—

 
—

 
251,027

Jonathan Segal (3)
 
152,000

 
79,937

 
—

 
—

 
—

 
93,884

 
325,821

Michael J. Ward
 
33,000

 
213,027

 
—

 
—

 
—

 
—

 
246,027

Neal X. Trangucci
 
219,000

 
155,408

 
—

 
—

 
—

 
103,277

 
477,685

______________
(1)
The values in this column are based on the aggregate grant date fair values of awards computed in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification, (“ASC”) Topic 718, “Compensation—Stock Compensation” (“FASB ASC Topic 718”).
The values set forth in this column relate to the following RSU awards: on May 31, 2017, Messrs. Ferrara, Segal and Trangucci each received an award of 1,061 RSUs, with a grant date fair value of $74,973, in connection with their annual equity awards; (ii) on June 9, 2017, Messrs. Ferrara and Trangucci each received an award of 1,044 RSUs, with a grant date fair value of $74,995, in connection with a special one-time grant; (iii) on July 13, 2017, Messrs. Ferrara, Segal and Trangucci received an award of 80, 73 and 80 RSUs respectively, with a grant date fair value of $5,440, $4,964 and $5,440 respectively, in connection with a final share allocation under the MIP; (iv) on September 7, 2017, Messrs. Orlando and Ward each received an award of 3,350 RSUs, with a grant date fair value of $213,027, in connection with their new director equity award (equity worth $100,000), pro-rata portion of annual equity award (equity worth $64,658) and pro-rata portion of annual cash retainer deferred into shares (equity worth $48,493).
(2)
Amounts in this column represent the value of the special dividend equivalent payment approved on June 16, 2017 and issued on July 13, 2017.
(3)
Mr. Segal left the board of directors on February 13, 2018. All compensation paid to Mr. Segal in his capacity as a director of the company was paid to Highbridge, Mr. Segal’s employer, pursuant to an agreement between the company and Mr. Segal.

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EXECUTIVE COMPENSATION
References in this “Executive Compensation” section to “we,” “us,” “our” and other similar terms refer to Contura Energy, Inc. and its consolidated subsidiaries before or after giving effect to the mergers, as the context requires.
Compensation Discussion and Analysis
Compensation of our named executive officers (“NEOs”) is determined under our compensation program for senior executives. This program is overseen by the compensation committee, which determines the compensation of our executive officers. Additionally, before we became a public company, our chief executive officer’s compensation was approved by the board of directors following a recommendation by our compensation committee.
The following discussion relates to the compensation of our NEOs whose compensation is disclosed below, as well as the overall principles underlying our executive compensation policies as we move towards becoming a public company. Our NEOs are:
•
Kevin S. Crutchfield, Chief Executive Officer (“CEO”),
•
Charles Andrew Eidson, Executive Vice President (“EVP”) and Chief Financial Officer,
•
Mark M. Manno, EVP, General Counsel, Corporate Secretary & Chief Procurement Officer (currently serving as EVP, Chief Administrative and Legal Officer and Secretary),
•
V. Keith Hainer, EVP and Chief Operating Officer (who left the Company on January 18, 2018), and
•
Gary W. Banbury, EVP and Chief Administrative Officer (who left the Company on January 18, 2018).
2017 Business Highlights and Impacts on Compensation
We are providing information regarding our business performance and the impact of business performance upon the compensation actually realized by our NEOs in order to enable our stockholders to better understand our executive compensation programs, the key business factors that affect its design and the payments ultimately made under the programs.
In 2017, we performed well, highlighted by the following significant achievements:
•
Total revenues for 2017 were $1,650.0 million (excluding PRB);
•
Coal revenues for the fourth quarter of 2017 were $292.4 million (excluding PRB);
•
Total liquidity of approximately $255.6 million, including cash and cash equivalents of $141.9 million and $113.7 million of unused commitments available under the Asset-Based Revolving Credit Facility;
•
Net income for the fourth quarter of 2017 was $96.6 million (including PRB);
•
Adjusted EBITDA for 2017 was $300.2 million from continuing and discontinued operations (including PRB); and
•
We achieved safety and environmental goals with a non-fatal days lost rate of 2.76 and an environmental compliance score of 9.04.

295


Compensation Executive Summary
Our executive compensation programs are designed to attract, retain and reward executives who create long-term stockholder value, share our mission, and perform in a manner that enables the Company to achieve its strategic goals. Our compensation programs accomplish this by providing a market-based total compensation program tied to financial and operating performance and the interests of our stockholders. Our compensation programs reflect, reinforce and communicate our commitment to operate safely, responsibly and ethically, and continually strive to improve and deliver quality in everything we do.
•
Our executive compensation programs are administered by our compensation committee, appointed by our board of directors. The compensation committee has the responsibility to review and approve executive and director compensation and ensure our programs align with the policies and philosophies of the Company. Additionally, before we became a public company, our CEO’s compensation was approved by the board of directors following a recommendation by our compensation committee.
•
Variable compensation, both short- and long-term, comprises the majority of the compensation opportunities for our executive team. Long-term compensation opportunity is emphasized over short-term opportunity to encourage executive retention and to align our executives’ interests with long-term results.
•
The Contura Energy, Inc. Annual Incentive Bonus Plan (described in “Executive Compensation—Executive Compensation Process” below) measures both financial and operational performance goals, with an emphasis on financial measures. All executives have identical goals, supporting our belief in the importance of teamwork among our leadership team. Pay for performance is emphasized through a plan design that includes a threshold performance level, with significant upside should performance significantly exceed expectations, and by establishing maximum incentive payouts (caps).
•
Long-term incentives are the most important component of our total reward program. The opportunity for executives to earn equity awards, over time, aligns our executive team with the interests of our stockholders. The long-term compensation design is based on a portfolio approach, which consists of vested stock options and vested shares of our common stock with one-year sale restrictions and stock options and restricted stock subject to three-year time-based vesting schedules.
•
Executive benefits and perquisites reflect the culture of our company. We may employ special arrangements (such as the Contura Energy, Inc. Deferred Compensation Plan described in “Executive Compensation—Potential Payments on Termination and Change in Control” below) when existing tax-qualified retirement plans are subject to limitations on benefits under the Internal Revenue Code or when significant competitive gaps exist in comparison to our industry peers. We utilize limited perquisites to enable us to attract and retain executive talent and further our business goals.
•
We believe our executives should own stock in the Company, and our executive compensation program requires executive stock ownership.
•
Our severance and change in control polices generally include a double trigger payout approach and do not employ tax gross-ups (in the case of a change in control).
Executive Compensation Process
Compensation Committee’s Role in Determining Executive Compensation
The compensation committee is responsible for ensuring that the Company’s executive compensation policies and programs reflect the short-term and long-term interests of the Company’s stockholders and are competitive in the markets in which the Company competes for talent. The compensation committee reviews and approves the design of the compensation program, compensation levels, and benefit programs for the NEOs and other members of the management committee. When appropriate, the compensation committee consults with other board committees, such as the safety, health and environmental committee to determine appropriate performance targets that relate to the Company’s non-financial achievements. To date,

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our CEO’s compensation has been approved by the board of directors following a recommendation by our compensation committee.
The compensation committee is committed to ensuring that our compensation and benefit programs are aligned with our values and business strategy by reviewing and analyzing the competitiveness of our executive compensation programs and our performance. Each key component of compensation (base salary, short-term incentives and long-term incentives) is reviewed for both internal equity and, when appropriate comparisons are available, for external competitiveness based on industry peers and published survey data.
The compensation committee also takes into account external market conditions, such as competition for executives for a particular position, and position-specific factors when approving the total compensation for each NEO. The position-specific factors influencing the compensation levels include largely qualitative factors such as experience, tenure, job performance, contributions to our financial results, scope of responsibilities, and complexity of the position.
Role of Management and CEO in Determining Executive Compensation
As part of our process for establishing executive compensation, the CEO, the executive leader of administration and the human resources department provide information and recommendations to the compensation committee and compensation consultants regarding compensation program design and appropriate performance metrics. The CEO reviews the performance of the other NEOs with the compensation committee and makes recommendations to the committee regarding compensation levels and awards for the other NEOs. With respect to the CEO’s compensation, the committee recommends his compensation to the board following a review of market data provided by our compensation consultant and the performance of the CEO.
Compensation Consultants
The compensation committee had engaged the POE Group to advise it on executive compensation matters. The compensation consultants report directly to the committee and, with the consent of the committee, coordinate and gather from members of management information with which to advise the committee .
Ultimately, decisions about the amount and form of executive compensation, except for that of our chief executive officer whose compensation is approved by our board of directors, are made by the compensation committee alone and may reflect factors and considerations other than the information and advice provided by our compensation consultants or management.
The POE Group no longer advises the compensation committee and, as of May 2018, Pearl Meyer was retained by the compensation committee to advise it on executive compensation matters.
Competitive Analysis in 2017
During 2017, the compensation consultants reviewed the compensation of NEOs at other public companies of similar size and character to better understand how our compensation compares to our peers with whom we compete for talent. Benchmark companies referenced were in the mining and energy industries. The benchmark companies examined in connection with our 2017 compensation decisions were: AK Steel Holding Corporation, Allegheny Technologies Inc., Arch Coal Inc., Cliffs Natural Resources Inc., Comstock Resources, Inc., CONSOL Energy Inc., Delek US Holdings, Inc., Denbury Resources Inc., EP Energy Corporation, Kaiser Aluminum Corporation, Kinross Gold Corporation, Materion Corporation, Peabody Energy Corporation, Sanchez Energy Corporation, SM Energy Company, SunCoke Energy, Inc. and Westmoreland Coal Company. The revenues and market capitalizations of these companies approximate ours. The group of companies used to benchmark compensation decisions relating to 2018 compensation is described below under “Executive Compensation— Executive Compensation Process”. In addition, executive compensation surveys from Equilar and Mercer were referenced to increase the validity of our pay benchmark information.
The primary executive pay components of base salary, short-term incentive, long-term incentive (principally equity) and total direct compensation were compared to our existing and planned compensation structure for the executive officers.

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Approval of Peer Group
On May 31, 2017, our compensation committee approved a public company peer group to be used to assist us in making compensation decisions following the establishment of this peer group. The compensation committee, the POE Group and management worked together to select our peer group. These companies were chosen from a group of public companies in the energy and metals and mining industries, taking into account market capitalization and revenues. Our public company peer group approved by the compensation committee on May 31, 2017 consisted of the following companies:
AK Steel Holdings Corporation
Delek US Holdings Inc.
Sanchez Energy Corporation
Allegheny Technologies Inc.
Denbury Resources Inc.
SM Energy Company
Arch Coal Inc.
EP Energy Corporation
Stillwater Mining Company
Cliffs Natural Resources
Kaiser Aluminum Corporation
SunCoke Energy, Inc.
Comstock Resources Inc.
Kinross Gold Corporation
Westmoreland Coal Company
CONSOL Energy Inc.
Materion Corporation
Yamana Gold Inc.
 
Peabody Energy Corporation
 
Approval of Stock Ownership Guidelines
On May 31, 2017, our compensation committee approved stock ownership guidelines for our executive officers and non-employee directors. We believe it is important for our NEOs and directors to be owners in the Company to ensure the alignment of their goals with the interests of our stockholders. NEOs are required to hold the equivalent of three times their base salary in our common stock, except in the case of our CEO, who is required to hold five times his base salary in our common stock. Directors are required to hold five times their annual retainer in our common stock. Shares received from awards granted under the MIP do not count toward these requirements. Each NEO and director has a transition period of five years to meet the requirements set forth in these guidelines.

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2017 Primary Elements of Compensation
The 2017 compensation program for our NEOs consisted of a number of elements that support our performance and retention objectives. The compensation earned under certain components may vary significantly based on company performance. The following chart summarizes the main components of our 2017 executive compensation program and the primary objective of each.
Compensation Element
 
Description
 
Form
 
Objective
Base salary
 
Fixed based on level of responsibility, experience, tenure and qualifications
 
•
Cash
 
Support talent attraction and retention
Annual Incentive
Bonus
 
Variable based on the achievement of annual financial, safety and environmental metrics
 
•
Cash
 
Link pay and performance
Drive the achievement of short-term business objectives
Long-Term Incentive Awards
 
Variable based on the achievement of longer-term goals and stockholder value creation
 
•
Restricted stock that vests ratably over a three year period
•
Nonqualified stock options
 
Support talent attraction and retention
Link pay and performance
Drive the achievement of longer-term business objectives
Align NEO and stockholder interests
Other Compensation and Benefits Programs
 
Employee health, welfare and retirement benefits and deferred compensation
 
•
Group medical benefits
•
Life and disability insurance
•
401(k) plan participation
•
Deferred compensation plan
 
Support talent attraction and retention
Provide for tax-efficient retirement savings
Provide for supplemental retirement benefits
Internal Pay Equity
The compensation committee annually reviews the pay relationship between our CEO and our other NEOs to assess whether the differential is appropriate with regard to both the total direct compensation and each compensation element.
The following table summarizes our CEO’s 2017 total direct compensation (salary, target bonus opportunity and target long-term incentive opportunity) as a multiple of the target total direct compensation of the second most highly paid NEO and the average target total direct compensation of our other NEOs.
CEO Compensation as a Multiple of:
2017 Base
Salary
 
2017 Target
Bonus
 
2017 Target
Long-Term
Incentive
Opportunity
 
2017 Total
Direct
Compensation
Second Highest Paid NEO
2.09x
 
2.61x
 
5.00x
 
4.46x
Average of NEOs other than the CEO
2.29x
 
3.23x
 
7.60x
 
6.36x
Pay Mix
As illustrated in the chart below, approximately 95% of our CEO’s and 87% of our other NEOs’ 2017 target total direct compensation is “at risk,” with most of the compensation subject to the achievement of short- and long-term financial or

299


operational performance objectives. The compensation breakdown shown in the chart below reflects annualized target compensation for 2017. We believe that this balance of fixed and variable compensation is consistent with our executive compensation philosophy and maintains a strong link between the NEOs’ compensation and company performance, motivating executives to deliver strong business performance and, importantly, to create stockholder value.
2017 Target Annualized Compensation Mix
EXECUTIVECOMPENSATION1A01.JPG
Base Salary
Base salary is the fixed element of each NEOs annual cash compensation, and the foundation upon which other primary elements of compensation are based. The compensation committee awards competitive salaries in order to assist in attracting and retaining each NEO. Base salaries are reviewed by the compensation committee annually and determined with reference to the median salaries for similarly-situated executives and also each NEOs position-specific skills, tenure, experience, responsibility and performance.
For 2017, the annual base salaries of our NEOs were as follows:
Name
 
Base Salary
Kevin S. Crutchfield
 
$
1,045,000

Charles Andrew Eidson
 
$
500,000

Mark M. Manno
 
$
500,000

V. Keith Hainer
 
$
425,000

Gary W. Banbury
 
$
400,000


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2017 Annual Bonuses
The Contura Energy, Inc. Annual Incentive Bonus Plan (the “Bonus Plan” or “CIB”) provides annual cash incentives to our executive officers and other key employees to reward performance, as measured against fundamental company financial and operational goals. In establishing 2017 performance goals, the compensation committee considered the economic environment and challenges to be faced during the fiscal year. The compensation committee designed the performance goals to ensure that performance significantly in excess of the target performance goals would be rewarded with above target payout levels, up to the cap established by the compensation committee. In setting the target goals, the compensation committee sought to establish challenging but attainable goals that would motivate and reward the NEOs for strong performance without encouraging excessive risk taking.
Performance Metrics
For 2017, the compensation committee approved a mix of performance measures based on financial metrics and operational metrics, as shown in the table below. Additional information regarding the performance metrics are included in the footnotes to the table below.
The compensation committee approved the following metrics, the respective weighting of each metric and the performance thresholds for the executives’ 2017 annual bonuses under the Bonus Plan. The metrics were intended to align annual incentive compensation for 2017 with the goals and objectives set forth in the Company’s business plan. If the threshold level of performance for any of our metrics is not achieved, the resulting payout as a percentage of target is 0%, and no payouts are made under the metric.
The table below sets forth the performance metrics and their respective weightings and thresholds as well as the actual achievement of each metric based on the Company’s financial and operational results for 2017:
 
 
Metric Goals & Performance
Performance Metric
 
Weighting
 
Threshold
(Payout -
50%)
 
Target
(Payout -
100%)
 
Maximum
(Payout -
200%)
 
Actual
Performance
 
Payout as
% of
Target
 
As % of
Target
Bonus
Opportunity
EBITDA 1
 
40.00%
 
$297.3M
 
$330.3M
 
$363.3M
 
$325.04M
 
92.03%
 
36.812%
Cost of Coal Sales per Ton Sold 2
 
30.00%
 
$20.90
 
$19.00
 
$17.10
 
$20.46
 
61.58%
 
18.474%
Safety - NFDL Rate 3
 
20.00%
 
3.07
 
2.79
 
2.51
 
2.76
 
110.72%
 
22.143%
Environmental Compliance 4
 
10.00%
 
41.24
 
37.29
 
33.89
 
9.04
 
200.00%
 
20.000%
Total
 
100%
 
 
 
 
 
 
 
 
 
 
 
97.429%
______________
(1)
CIB EBITDA was $325.04 million in 2017 under the formula adopted by the compensation committee and, as a result, 98.41% of the target performance goal was achieved resulting in a payout pursuant to the EBITDA metric of 92.03% of target.
CIB EBITDA was calculated as follows: 2017, Income from Continuing Operations plus Interest Expense, Income Tax Expense, Depreciation, Depletion and Amortization, and Amortization of Acquired Intangibles, less Interest Income and Income Tax Benefit ("EBITDA"), and excluding the following (i) CIB, OSEB & MIP and sales related expenses, (ii) Impairment of tangible and intangible assets and related charges, (iii) Gains or Losses associated with Asset Retirement Obligations (ARO), (iv) Costs, Revenues, Gains or Losses associated with future and completed business combinations, reorganizations and/or restructuring programs, (v) Litigation or claim judgments or settlements, (vi) Extraordinary, unusual, infrequent or non-recurring items not encompassed in the above exclusions, as determined by the Board of Directors.
(2)
CIB Cost of Coal Sales per Ton Sold was $20.46 in 2017 under the formula previously adopted by the compensation committee and, as a result, 92.32% of the target performance goal was achieved resulting in a payout pursuant to this metric of 61.58% of target.
CIB Cost of Coal Sales per Ton Sold was calculated as follows: Budgeted Weighted Average 2017 Cost of Coal Sales per Ton Sold, excluding the following (i) CIB, OSEB & MIP and sales related expenses, (ii) Impairment of tangible and intangible assets and related charges, (iii) Gains or Losses associated with Asset Retirement Obligations (ARO) or idled assets, (iv) Costs, Revenues, Gains or Losses associated with future and completed business combinations, reorganizations and/or restructuring programs, (v) Litigation or claim judgments or settlements, (vi) Costs, Revenues, Gains or Losses associated with coal purchased from 3rd parties, and (vii) Extraordinary, unusual, infrequent or non-recurring items not encompassed in the above exclusions, as determined by the board of directors.
(3)
Non-Fatal Days Lost (“NFDL”) Rate was 2.76 in 2017, meaning that the safety objective was achieved at 101.08% of the target, which resulted in a pay-out under this objective, after interpolation, of 110.72% of target.
NFDL Rate is a standard established by the Mine Safety and Health Administration and is widely used by coal companies to measure their safety performance.

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(4)
Environmental Compliance, which is measured by dividing the number of water quality exceedances by the number of year-to-date active outlets, was 9.04 in 2017 under the formula previously adopted by the compensation committee and, as a result, 175.76% of the target performance goal was achieved resulting in a payout pursuant to this metric of 200% of target.
Environmental Compliance was calculated as follows: Number of 2017 water quality exceedances, divided by Number of 2017 active outlets, multiplied by 100.

Targets and Payouts for 2017
The compensation committee aims for the target amount of executives’ bonus opportunities to be at the median of competitors and industry peers. Potential 2017 bonus payouts for our NEOs ranged from 61.58% to 200% of the target opportunity, based on the achievement of performance metrics.
The following table sets forth the payouts earned by each NEO pursuant to the Bonus Plan for 2017. Each NEOs Annual Bonus payment equaled 97.429% of his target bonus amount, such that bonuses ranged from $292,287 to $1,272,666 (for our CEO).
Officer
 
2017 Base
Salary
 
2017 Annual
Target
Bonus
Opportunity
(as a % of
base salary)
 
2017 Target
Bonus
 
2017 Actual
Performance
as a %
of Target
Bonus
 
2017 CIB
Bonus
Kevin S. Crutchfield
 
$
1,045,000

 
125.00
%
 
$
1,306,250

 
97.429
%
 
$
1,272,666

Charles Andrew Eidson
 
$
500,000

 
100.00
%
 
$
500,000

 
97.429
%
 
$
487,145

Mark M. Manno
 
$
500,000

 
100.00
%
 
$
500,000

 
97.429
%
 
$
487,145

V. Keith Hainer
 
$
425,000

 
75.00
%
 
$
318,750

 
97.429
%
 
$
310,555

Gary W. Banbury
 
$
400,000

 
75.00
%
 
$
300,000

 
97.429
%
 
$
292,287

Long-Term Incentive Awards
In 2016, the Company adopted the MIP, under which grants of restricted stock units, restricted stock, stock options and vested shares of our common stock have been made to our NEOs and other executives, non-employee directors and key employees totaling 10% of the Company’s equity on a fully-diluted basis. Awards to our NEOs pursuant to the MIP were granted in three installments — the first in July, 2016, the second in March, 2017 and the third in July, 2017. No additional awards are expected to be granted under the MIP.
The initial MIP awards, which were granted in 2016, consisted of 50% vested common stock and 50% vested incentive stock options (which are treated as nonqualified stock options to the extent the fair market value of the underlying shares at the time of vesting exceeded $100,000). The stock option awards were comprised of two tranches, the first with a $2.50 exercise price (which was the fair market value of a share of our common stock on the grant date), and the second with a $5.00 exercise price (the trailing volume-weighted average price for the 30-day period following the grant date, but in any case not less than $2.50 or more than $5.00) The stock option awards vested on the date of grant and can be exercised at the NEOs discretion. The awards were granted primarily to link our NEOs’ compensation to future stock price performance and to establish the NEOs’ stock ownership in the Company
A second round of equity awards pursuant to the MIP was made on March 7, 2017. These awards were granted approximately 23% in the form of non-qualified stock options with a $66.13 exercise price and approximately 77% in the form of restricted stock and vested one-third on March 7, 2018 and are scheduled to vest one-third on each of March 7, 2019 and March 7, 2020, subject to the employee’s continued employment through the applicable vesting date. All awards will fully vest in connection with a change in control of the Company or an initial public offering.
On June 16, 2017, our board of directors authorized and declared the Special Dividend. To prevent the dilution of the benefits under the outstanding equity awards granted under the MIP, our compensation committee approved certain payments to our executives (including our NEOs) and other key employees who hold MIP awards. The MIP provides that holders of restricted stock have the right to receive dividends (subject to such restrictions as may be imposed by our compensation

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committee). Accordingly, our compensation committee approved a payment to each holder of restricted stock under the MIP in an amount per share equal to the per-share Special Dividend (approximately $8.997 per share of outstanding restricted stock), which was paid on July 13, 2017.
In the event of certain corporate transactions or distributions (including an extraordinary cash dividend such as the Special Dividend), our compensation committee is required under the terms of the MIP to make certain adjustments to the outstanding awards under the MIP to prevent dilution or enlargement of the benefits under such awards. To prevent the dilution of the benefits under outstanding stock option awards granted under the MIP, our compensation committee approved a cash dividend equivalent payment to each holder of non-qualified stock options and incentive stock options under the MIP in an amount per option equal to the per-share Special Dividend (approximately $8.997 for each share underlying outstanding option awards), which was paid on July 13, 2017.
The third and final round of equity awards granted to our NEOs pursuant to the MIP was made on July 13, 2017. In recognition of the requirement under the MIP to allocate to existing MIP participants any remaining shares of common stock authorized to be granted under the MIP prior to the completion of a change in control or an initial public offering, our compensation committee and board of directors approved grants of restricted stock to our NEOs under the MIP in connection with a previously contemplated offering of shares of our common stock on a pro rata basis based on the number of shares of common stock underlying each MIP participant’s outstanding MIP awards. The restricted stock awards vested one-third on March 7, 2018 and are scheduled to vest one-third on each of March 7, 2019 and March 7, 2020, subject to the employee’s continued employment through the applicable vesting date. All awards will fully vest in connection with a change in control of our company or an initial public offering.
In connection with a tender offer by the Company, on September 15, 2017 the Company repurchased 309,310 shares of its common stock (244,742 of which were repurchased from our NEOs) issued pursuant to awards under the Management Incentive Plan for an aggregate purchase price of approximately $17.4 million (approximately $13.8 million of which was paid to repurchase shares from our NEOs), or $56.40 per share.
The number of common shares underlying equity awards granted to our NEOs is summarized in the following table.
Officer
 
2016
Shares of
Vested
Common
Stock
 
2016
Incentive
Stock
Options
($2,50
Exercise
Price)
 
2016
Incentive
Stock
Options
($5.00
Exercise
Price)
 
Total
Number of
Shares
Subject to
2016 Long-Term
Incentive
Award
 
2017 Shares
of Restricted
Stock
 
2017 Non-
Qualified
Stock
Options
($66.13
Exercise
Price)
 
Total
Number of
Shares
Subject to
2017 Long-
Term
Incentive
Award
Kevin S. Crutchfield
 
150,150

 
75,075

 
75,075

 
300,300

 
227,249

 
67,445

 
294,694

Charles Andrew Eidson
 
30,030

 
15,015

 
15,015

 
60,060

 
45,416

 
13,479

 
58,895

Mark M. Manno
 
30,030

 
15,015

 
15,015

 
60,060

 
45,416

 
13,479

 
58,895

V. Keith Hainer
 
16,514

 
8,258

 
8,258

 
33,030

 
15,366

 
4,384

 
19,750

Gary W. Banbury
 
18,018

 
—

 
—

 
18,018

 
13,612

 
4,040

 
17,652

Deferred Compensation
Our NEOs are eligible to participate in the Contura Energy, Inc. Deferred Compensation Plan (the “Deferred Compensation Plan”) which permits certain of our highly-compensated employees to receive supplemental retirement benefits in excess of the tax-qualified plan limits under the Code. The Deferred Compensation Plan is designed to further the interests of our stockholders by helping us attract and retain key talent by providing them with these additional retirement benefits. Under the Deferred Compensation Plan, we maintain a supplemental retirement account for each participant to which we credit annual contributions equal to the sum of (i) the participant’s compensation that is in excess of the federal tax-qualified plan limit under Section 401(a)(17) of the Code multiplied by the aggregate matching company contribution percentage for our tax-qualified retirement plans in effect for the applicable year, plus, in the discretion of our compensation committee and (ii) a discretionary contribution in an amount equal to a percentage of the participant’s eligible compensation

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under our tax-qualified plans. The Deferred Compensation Plan is described in further detail in “Executive Compensation—Potential Payments on Termination and Change in Control” below.
Severance and Change in Control Arrangements
We have entered into an employment agreement with our CEO, which is intended to retain and competitively compensate him for his position with the Company and provide severance benefits on specified terminations of employment. Our other NEOs are participants in our Key Employee Separation Plan, which provides participants with severance benefits following a qualifying termination of employment and enhanced benefits in connection with a change in control. The terms and estimated amounts of these benefits are described below under “Executive Compensation—Potential Payments on Termination and Change in Control.”
The compensation committee believes these change in control and termination provisions are necessary to ensure that the actions and recommendations of senior management and other employees with respect to change in control transactions are in Contura’s and our stockholders’ best interests, and to reduce the distraction regarding the impact of such a transaction on the employment status of an NEO. These programs were reviewed by our board who concluded that the terms of these programs were in line with market practices.
The CEO’s employment agreement and the Key Employee Separation Plan do not provide for payment to cover “golden parachute” excise taxes imposed under Section 4999 of the Code. Rather, payments due in connection with a change of control to participants will be reduced to the extent necessary to avoid the excise tax, unless it is determined that the net after-tax benefits to a participant would be greater if the reductions were not imposed (i.e., “best net” treatment).
Retirement and Other Benefits
Our NEOs are eligible to participate in our employee benefit plans provided to other employees, including health and welfare benefits and our 401(k) plan.
Tax and Accounting Considerations
We recognize a charge to earnings for accounting purposes for equity awards over their vesting period. In the past, we have not considered the accounting impact as a material factor in determining the equity award amounts for our executive officers. However, as we become a public company, we expect that the compensation committee will consider the accounting impact of equity awards in addition to considering the impact to dilution and overhang when deciding the amounts and terms of equity grants.
We do not require executive compensation to be tax deductible for our company, but instead balance the cost and benefits of tax deductibility to comply with our executive compensation goals. For example, Section 162(m) of the Code generally disallows a tax deduction to a publicly held corporation for compensation in excess of $1 million paid in any taxable year to its chief executive officer, chief financial officer and certain other executive officers. As a private company, we have not been subject to the deductibility limit of Section 162(m), and have not taken such limit into consideration in setting compensation for our executive officers because Section 162(m) did not apply to us. Once we are a public company, and, with respect to Section 162(m), following the expiration of any transition period that may continue to be available for newly public companies and taking into account other transition relief that may be available, we expect that the compensation committee will consider the tax deductibility of compensation, but will be fully authorized, in the exercise of its business judgment and in accordance with its compensation philosophy, to approve compensation that is not tax deductible when it believes that such payments are in our stockholders’ best interests. Significant revisions were made to Section 162(m) of the Code by the Tax Cuts and Jobs Act of 2017, and the scope of any transition period or other transition relief is uncertain at this time and may be subject to further rulemaking.
Risk Assessment of Compensation Programs
Our compensation committee, after considering the input of its independent compensation consultant, conducted an assessment of the risks associated with our compensation policies and programs, and determined that our compensation policies and programs do not create risks that are reasonably likely to have a material adverse effect on us.

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2017 Summary Compensation Table
The following summary compensation table sets forth information concerning the compensation of Kevin S. Crutchfield, our CEO, Charles Andrew Eidson, our Chief Financial Officer, and our other three most highly compensated executive officers (Mark M. Manno, V. Keith Hainer and Gary W. Banbury) for the fiscal years ended December 31, 2016 and 2017.
Name and Principal Position
 
Fiscal
Year
 
Salary (1)
 
Bonus
 
Stock
Awards (2)
 
Option
Awards (3)
 
Non-Equity
Incentive Plan
Compensation (4)
 
Change in
Pension Value
and Non-
qualified
Deferred
Compensation
Earnings (5)
 
All Other
Compensation (6)
 
Total
Kevin S. Crutchfield
 
2017
 
$
1,045,000

 
$
—

 
$
14,895,120

 
$
4,417,648

 
$
1,272,666

 
$
221,427

 
$
3,983,972

 
$
25,835,833

Chief Executive
Officer
 
2016
 
438,096

 
—

 
375,375

 
238,739

 
795,512

 
—

 
—

 
$
1,847,722

Charles Andrew Eidson
 
2017
 
500,000

 
—

 
2,976,811

 
882,875

 
487,145

 
53,086

 
792,636

 
$
5,692,553

Chief Financial
Officer
 
2016
 
209,615

 
—

 
75,075

 
47,748

 
304,502

 
—

 
—

 
$
636,940

Mark M. Manno
 
2017
 
500,000

 
—

 
2,976,811

 
882,875

 
487,145

 
26,884

 
792,636

 
$
5,666,351

Executive Vice
President,
 
2016
 
209,615

 
—

 
75,075

 
47,748

 
304,502

 
—

 
—

 
$
636,940

General Counsel,
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Secretary and Chief
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Procurement Officer
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
V. Keith Hainer
 
2017
 
425,000

 
—

 
1,007,388

 
287,152

 
310,555

 
26,884

 
194,120

 
$
2,251,099

Executive Vice
President,
 
2016
 
178,173

 
—

 
41,285

 
26,260

 
194,210

 
—

 
—

 
$
439,928

Chief Operating
Officer
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Gary W. Banbury
 
2017
 
400,000

 
—

 
892,204

 
264,620

 
292,287

 
18,772

 
167,924

 
$
2,035,807

Executive Vice
President,
 
2016
 
167,692

 
—

 
45,045

 
—

 
182,701

 
—

 
—

 
$
395,438

Chief Administrative
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Officer
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
______________
(1)
The values set forth in this column for Messrs. Crutchfield, Eidson, Manno, Hainer and Banbury for the fiscal year ending December 31, 2016 represent the salaries paid for the period of July 26, 2016 to December 31, 2016. The annual base salaries for Messrs. Crutchfield, Eidson, Manno, Hainer and Banbury during 2016 were $1,045,000, $500,000, $500,000, $425,000 and $400,000, respectively.
(2)
The values set forth in this column reflect the aggregate grant date fair value of awards computed in accordance with FASB ASC Topic 718. For 2017, the common stock awards set forth in this column were granted on March 7, 2017 with a grant date fair market value of $65.50 per share and July 13, 2017 with a grant date fair market value of $68.00 per share. For 2016, the vested common stock awards set forth in this column were granted with a grant date fair market value of $2.50 per share.
(3)
The values set forth in this column reflect the aggregate grant date fair value of awards computed in accordance with FASB ASC Topic 718. For 2017, the options set forth in this column were granted on March 7, 2017 with a grant date fair market value of $65.50. The company elected to grant the options with an exercise price based upon the greater of (i) the closing price of a share on the grant date or (ii) the volume-weighted average price for the 30-day period ending on the grant date. As a result, the exercise price of the options set forth in this column was set at $66.13. For 2016, the options set forth in this column were granted on July 26, 2016 in two tranches. The first had an exercise price of $2.50, which was the fair market value of a share of our common stock on the grant date. The company elected to grant the second tranche of options with an exercise price that was no less than, but potentially in excess of (subject to a cap), the fair market value of a share of our common stock on the grant date. The exercise price of the second tranche of options was $5.00, which was calculated based on the trailing volume-weighted average price for the 30-day period following the grant date (but not to exceed $5.00).
(4)
The values set forth in this column represent annual bonuses earned in respect of 2017 based on performance against metrics described under “Executive Compensation—Executive Compensation Process.”
(5)
The values set forth in this column represent deferred compensation earnings earned in respect of 2017 based upon eligible compensation earned during the year under the Deferred Compensation Plan described under “Executive Compensation—Potential Payments on Termination and Change in Control.”
(6)
The values set forth in this column represent the dividend equivalent amounts paid on July 13, 2017 as described under “Executive Compensation—Executive Compensation Process.” For Messrs. Crutchfield and Banbury, the values set forth in this column include imputed income related to their Group Term Life Insurance in amounts equal to $18,814 and $11,331 respectively.


305


2017 Grants of Plan-Based Awards
The following table sets forth information concerning grants of plan-based awards made to our named executive officers during the fiscal year ended December 31, 2017.
 
 
 
 
Estimated Future Payouts Under Non-Equity Incentive Plan Awards (1)
 
 
 
 
 
Estimated Future Payouts Under Equity Incentive Plan Awards
 
All Other Stock Awards: Number of Shares of Stock or Units (2)
(#)
 
All Other Option Awards: Number of Securities Underlying Options (3)
(#)
 
Exercise or Base Price of Option Awards
($)
Name
 
Grant Date
 
Minimum
($)
 
Target
($)
 
Maximum
($)
 
Minimum
(#)
 
Target
(#)
 
Maximum
(#)
 
 
 
Kevin S. Crutchfield
 
—

 
$
653,125

 
$
1,306,250

 
$
2,612,500

 
—

 
—

 
—

 
—

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
223,125

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
—

 
67,445

 
66.13 (5)

 
 
7/13/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
4,124

 
—

 
—

Charles Andrew Eidson
 
—

 
250,000

 
500,000

 
1,000,000

 
—

 
—

 
—

 
—

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
44,591

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
—

 
13,479

 
66.13 (5)

 
 
7/13/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
825

 
—

 
—

Mark M. Manno
 
—

 
250,000

 
500,000

 
1,000,000

 
—

 
—

 
—

 
—

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
44,591

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
—

 
13,479

 
66.13 (5)

 
 
7/13/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
825

 
—

 
—

V. Keith Hainer
 
—

 
159,375

 
318,750

 
637,500

 
—

 
—

 
—

 
—

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
15,000

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
—

 
7,384

 
66.13 (5)

 
 
7/13/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
366

 
—

 
—

Gary W. Banbury
 
—

 
150,000

 
300,000

 
600,000

 
—

 
—

 
—

 
—

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
13,365

 
—

 
—

 
 
3/7/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
—

 
4,040

 
66.13 (5)

 
 
7/13/2017

 
—

 
—

 
—

 
—

 
—

 
—

 
247

 
—

 
—

______________
(1)
The amounts in this column reflect annual bonuses that were eligible to be earned in respect of performance in 2017.
(2)
This column shows the number of restricted stock shares granted in 2017 under the Contura Energy, Inc. Management Incentive Plan.
(3)
This column shows the number of stock option awards granted in 2017 under the Contura Energy, Inc. Management Incentive Plan.
(4)
The grant date fair value calculations are computed in accordance with FASB ASC Topic 718.
(5)
The company elected to grant the options with an exercise price based upon the greater of (i) the closing price of a share on the grant date or (ii) the volume-weighted average price for the 30-day period ending on the grant date. As a result, the exercise price of the options was set at $66.13.


306


Outstanding Equity Awards at 2017 Fiscal Year End
The following table summarizes the number of shares of common stock underlying outstanding equity incentive plan awards for each named executive officer as of December 31, 2017.
 
 
Option Awards
 
Stock Awards
Officer
 
Numbers of Securities Underlying Unexercised Options
Exercisable (1)
(#)
 
Numbers of Securities Underlying Unexercised Unearned Options (2)
(#)
 
Option Exercise Price
($)
 
Option Expiration Date
 
Number of Shares or Units of Stock That Have Not Vested (3)  
(#)
 
Market Value of Shares or Units of Stock That Have Not Vested (4)
($)
 
Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested
(#)
 
Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested
($)
Kevin S. Crutchfield
 
75,075

 
 
 
$
2.50

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
75,075

 
 
 
5.00

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
—

 
67,445

 
66.13

 
3/7/2027

 
—

 
—

 
—

 
—

 
 
—

 
 
 
—

 
—

 
227,249

 
14,884,810

 
—

 
—

Charles Andrew Eidson
 
15,015

 
 
 
2.50

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
15,015

 
 
 
5.00

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
—

 
13,479

 
66.13

 
3/7/2027

 
—

 
—

 
—

 
—

 
 
—

 
 
 
—

 
—

 
45,416

 
2,974,748

 
—

 
—

Mark M. Manno
 
15,015

 
 
 
2.50

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
15,015

 
 
 
5.00

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
—

 
13,479

 
66.13

 
3/7/2027

 
—

 
—

 
—

 
—

 
 
—

 
 
 
—

 
—

 
45,416

 
2,974,748

 
—

 
—

V. Keith Hainer
 
8,258

 
 
 
2.50

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
8,258

 
 
 
5.00

 
7/26/2026

 
—

 
—

 
—

 
—

 
 
—

 
4,384

 
66.13

 
3/7/2027

 
—

 
—

 
—

 
—

 
 
—

 
 
 
—

 
—

 
15,366

 
1,006,473

 
—

 
—

Gary W. Banbury
 
—

 
4,040

 
66.13

 
3/7/2027

 
—

 
—

 
—

 
—

 
 
—

 
 
 
—

 
—

 
13,612

 
891,586

 
—

 
—

______________
(1)
All options in this column include the options granted on July 26, 2016, which were fully vested at grant.
(2)
All options in this column represented the unvested portion of the options granted on March 7, 2017 as of December 31, 2017, which vest ratably on the first, second and third anniversaries of the grant date.
(3)
The common stock awards set forth in this column were granted on March 7, 2017 with a grant date fair market value of $65.50 per share and July 13, 2017 with a grant date fair market value of $68.00 per share.
(4)
The grant date fair value calculations are computed in accordance with FASB ASC Topic 718.

Option Exercises and Stock Vested in 2017
No options were exercised and no stock awards vested for our named executive officers during the fiscal year ended December 31, 2017.
Potential Payments on Termination and Change in Control
Each of our NEOs may be eligible to receive benefits under the circumstances described below if the officer experiences a qualifying termination of employment or we undergo a change in control.
Chief Executive Officer
Under the terms of his July 26, 2016 Employment Agreement, Mr. Crutchfield will serve as the Company’s Chief Executive Officer until December 31, 2017 and during any renewal period (this term automatically renews for successive 12-month periods unless terminated by either party with 90 days’ written notice). Mr. Crutchfield’s annual base salary is $1,045,000 and his annual target bonus opportunity is 125% of base salary, subject to any applicable performance criteria.

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If Mr. Crutchfield is terminated without cause (which includes his gross negligence or willful misconduct in the performance of his duties, conviction of a felony, material violation of our code of ethics or material breach of his employment agreement) or resigns for good reason (which includes a material reduction in his salary or target bonus opportunity, our failure to allow him to participate in our equity-based compensation plans, a material diminution in his position or duties, or a material relocation), he will be entitled to receive the following severance benefits, subject to his execution of a release of claims:
•
a lump sum cash payment equal to two times base salary plus two times target annual bonus for the year in which the termination occurs;
•
vesting of all equity awards (with stock options remaining exercisable for up to two years post- termination); and
•
reimbursement by us for up to 18 months of Consolidated Omnibus Budget Reconciliation Act (COBRA) health and dental insurance premiums and life insurance premiums for him and his dependents.
If Mr. Crutchfield is terminated without cause or resigns for good reason during the period beginning three months prior to and ending twelve months following a change in control (as defined in the agreement), he will be entitled to receive the following enhanced severance benefits:
•
a lump sum cash payment equal to two and one-half times base salary plus two and one-half times annual target bonus for the year in which the termination occurs;
•
vesting of all equity awards (with stock options remaining exercisable for up to two years post-termination);
•
a lump sum cash payment of the pro rata share of his annual bonus for the year of termination;
•
a lump sum cash payment of $15,000 to cover the cost of outplacement services; and
•
reimbursement by us for up to 18 months of COBRA health insurance premiums and dental and life insurance premiums for him and his dependents.
If Mr. Crutchfield’s employment is terminated due to death or disability, he will be entitled to receive a prorated target bonus for the year of termination.
Upon a termination of his employment, Mr. Crutchfield is subject to restrictive covenants regarding confidentiality (perpetual), non-competition (during employment and for one year thereafter), and employee and customer non-solicitation (during employment and for one year thereafter). If Mr. Crutchfield resigns for any reason other than for good reason or if he elects not to renew the term of his employment agreement, we may only invoke his non-competition and non-solicitation covenants if we agree to pay him a cash payment equal to two and one-half times base salary plus two and one-half times annual target bonus for the year in which the termination occurs.
Key Employee Separation Plan
Our NEOs, other than our CEO, are eligible to receive severance benefits under the Contura Energy, Inc. Key Employee Separation Plan (the “KESP”), which was approved by our board of directors on July 26, 2016.
The KESP provides that, following a change in control (as defined in the plan), each participant will receive a bonus for the year in which the change in control occurs, prorated through the date of the change in control.
If a participant’s employment is terminated by the Company for any reason other than cause, death or disability, or if the participant resigns for good reason (all as defined in the KESP), during the period beginning three months prior to and ending one year following a change in control of the Company, the participant will be entitled to receive (i) a cash payment equal to the sum of base salary and target bonus for the year of termination, multiplied by a specified factor of, for our NEOs, 2x under the terms of the KESP (the “Severance Multiple”), (ii) an annual cash incentive bonus for the year of termination, prorated through the termination date, (iii) a cash payment of $15,000 for outplacement services, and (iv) continued COBRA coverage and certain dental and life insurance benefits for a period of up to 18 months (the “Severance Benefits”). If a participant is terminated prior to the 90-day period immediately preceding a change in control for any reason other than

308


cause, death or disability, the participant will be eligible to receive the Severance Benefits, except the Severance Multiple for NEOs will be 1.5x, as provided by the terms of the KESP.
In the event a participant experiences a termination of employment under any of the circumstances described in the preceding paragraph, whether prior to or during the change in control period, any outstanding stock options or restricted stock will become fully vested on the date of termination. All options will remain exercisable for a period of up to one year following the termination.
Participants are required to execute a general release, non-disparagement and non-competition agreement as a condition to receiving the Severance Benefits, which includes restrictive covenants regarding confidentiality (perpetual), non-competition (for one year post-termination), employee and customer non-solicitation (for one year post-termination) and non-disparagement (perpetual).
The following table sets forth information concerning the change in control and severance payments to be made to each of our NEOs in connection with a change in control or termination of employment, presuming a termination or change in control date of December 31, 2017. Additional descriptions of the terms of our agreements, plans and arrangements with our NEOs are set forth above in “Executive Compensation—Compensation Discussion and Analysis.”
The payments and benefits detailed in the tables below are in addition to any payments and benefits under our plans or arrangements which are offered or provided generally to all salaried employees on a non-discriminatory basis and any accumulated vested benefits for each NEO, and any stock options vested as of December 31, 2017 (which are set forth in the Outstanding Equity Awards at Fiscal Year-End Table).
Name
Termination Without Cause or for Good Reason (Not in Connection with a Change in Control) (1)
 
Termination Without Cause or for Good Reason in Connection with a Change in Control (1)
 
Death
Kevin S. Crutchfield
$
4,742,767

 
$
7,239,642

 
$
1,306,250

Charles Andrew Eidson
2,051,217 (2)

 
3,051,217 (3)

 
—

Mark M. Manno
2,051,217 (2)

 
3,051,217 (3)

 
—

V. Keith Hainer (4)
1,484,985 (2)

 
2,175,610 (3)  

 
—

Gary W. Banbury (4)
1,400,407 (2)

 
2,050,407 (3)  

 
—

______________
(1)
The amounts reflected in these columns include the cash payments described under “Chief Executive Officer” and “Key Employee Separation Plan” above. Payments for continued health and welfare benefits assume a cost of approximately $1,787 per month in medical and dental insurance based on 2017 COBRA rates and $450 per month in life and accidental death & dismemberment insurance premiums.
(2)
These amounts include payment for the sum of base salary and 2017 target bonus with a Severance Multiple of 1.5.
(3)
These amounts include payment for the sum of base salary and 2017 target bonus with a Severance Multiple of 2.
(4)
Messrs. Hainer and Banbury both left the Company on January 18, 2018.

Payments to Messrs. Hainer and Banbury in Connection with Their Terminations of Employment
Messrs. Hainer and Banbury both left the Company on January 18, 2018. In connection with their terminations of employment, Messrs. Hainer and Banbury both received termination benefits pursuant to the KESP, described in more detail above under “Executive Compensation—Potential Payments on Termination and Change in Control.” Messrs. Hainer and Banbury both received cash severance in the amounts equal to (a) 1.5x such individual’s base salary and 2018 target cash bonus and (b) outplacement assistance in the amount of $15,000. Additionally, Messrs. Hainer and Banbury are eligible to receive a prorated bonus for 2018, based on the actual achievement of the underlying performance metrics and payable at the same time bonuses are paid to other Company employees, as well as continuation of certain benefits (including health and life insurance) for up to 18 months or, in certain circumstances, a shorter period of time. All outstanding unvested equity awards held by Messrs. Hainer and Banbury became fully vested in connection with their termination of employment.

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2018 Long-Term Incentive Plan
On April 29, 2018, we adopted the 2018 Long-Term Incentive Plan (the “2018 Plan”), which was approved by our board of directors and our stockholders. The 2018 Plan provides for the grant of equity-based awards to our employees, consultants, service providers and non-employee directors.
Administration. The 2018 Plan will be administered by the person or persons appointed by our board of directors, who will have the authority to determine eligible participants, the types of awards to be granted, the number of shares covered by any awards, the terms and conditions of any awards (and amend any terms and conditions), and the methods by which awards may be settled, exercised, cancelled, forfeited or suspended.
Shares Reserve; Adjustments. The maximum number of shares available for issuance under the 2018 Plan will not exceed 1,000,000. Any shares underlying awards that are forfeited, cancelled, expired, terminated or are otherwise lapsed, in whole or in part, or are settled in cash or withheld by us in respect of taxes, will become available for future grant under our 2018 Plan.
In the event of certain changes in our corporate structure, including any extraordinary dividend or other distribution, recapitalization, stock split, reorganization, merger, consolidation, spin-off, or other similar corporate transaction or event affecting our common stock, or changes in applicable laws, regulations or accounting principles, the administrator will make appropriate adjustments to prevent undue enrichment or harm to the number and type of common shares subject to awards, and to the grant, purchase, exercise or hurdle price for any award.
Non-Employee Director Limits. Under the 2018 Plan, in any one fiscal year, non-employee Directors may not be granted (i) awards of more than 34,285 shares of our common stock (or if greater, in the case of restricted stock units, restricted stock performance awards and other stock-based awards, shares of our common stock with an aggregate fair market value of $300,000) or (ii) awards denominated in cash of more than $150,000.
Stock Options. The 2018 Plan permits the grant of incentive stock options to employees and/or nonstatutory stock options to all eligible participants. The exercise price of stock options may not be less than the fair market value of our common stock on the grant date, provided that if an incentive stock option is granted to a 10% stockholder, the exercise price may not be less than 110% of the fair market value of our common stock. Each stock option agreement will set forth the vesting schedule of the options and the term of the options, which may not exceed 10 years (or five years in the case of an incentive stock option granted to a 10% stockholder). The compensation committee will determine the method of payment of the exercise price.
Stock Appreciation Rights. The 2018 Plan permits the grant of stock appreciation rights, which entitle the holder to receive shares of our common stock or cash having an aggregate value equal to the appreciation in the fair market value of our common stock between the grant date and the exercise date, times the number of shares subject to the award. The exercise price of stock appreciation rights may not be less than the fair market value of our common stock on the date of grant. Each stock appreciation rights agreement will set forth the vesting schedule of the stock appreciation rights.
Restricted Stock and Restricted Stock Units. The 2018 Plan permits the grant of restricted stock and restricted stock units. Restricted stock awards are grants of shares of our common stock, subject to certain condition and restrictions as specified in the applicable award agreement. Restricted stock units represent the right to receive shares of our common stock (or a cash amount equal to the value of our common stock) on future specified dates.
Performance Awards. The 2018 Plan permits the grant of performance awards which are payable upon the achievement of performance goals determined by the administrator. The administrator may, in its discretion, add restrictions or conditions to the receipt of payment under a performance award.
Other Cash-Based Awards and Other Stock-Based Awards. The 2018 Plan permits the grant of other cash-based and other stock-based awards, the terms and conditions of which will be determined by the administrator and specified in the applicable award agreement.

310


Separation from Service. In the event of a participant’s separation from service, as defined in the 2018 Plan, the administrator may determine the extent to which an award may be exercised, settled, vested, paid or forfeited prior to the end of a performance period, or the vesting, exercise or settlement of such award.
Change in Control. In the event of a change in control, as defined in the 2018 Plan, the administrator may take certain actions with respect to outstanding awards, including the continuation or assumption of awards, substitution or replacement of awards by a successor entity, acceleration of vesting and lapse of restrictions, determination of the attainment of performance conditions for performance awards or cancellation of awards in consideration of a payment.
No Repricing. Except pursuant to an adjustment by the administrator permitted under the 2018 Plan, no action may directly or indirectly reduce the exercise or hurdle price of any award established at the time of grant without stockholder approval.
Plan Amendment or Suspension. The administrator has the authority to amend or suspend the 2018 Plan, provided that no such action may be taken without stockholder approval if the approval is necessary to comply with a tax or regulatory requirement or other applicable law for which the administrator deems it necessary or desirable to comply. No amendment may in general adversely and materially affect a participant’s rights under any award without such participant’s written consent.
Term of the Plan. No awards may be granted under the 2018 Plan after our board of directors terminates the plan or 10 years from the effective date, whichever is earlier.
Management Incentive Plan
We granted awards in the form of restricted stock units, restricted stock, vested common stock and stock options (see “Executive Compensation—Executive Compensation Process”) pursuant to the MIP in 2016, 2017 and 2018. No additional awards are expected to be granted under the MIP.
Administration. The MIP is administered by our compensation committee, which has the authority to take a number of actions with respect to the MIP, including determining the individuals eligible for awards, the types of awards, the terms and conditions applicable to awards and to modify, amend, cancel or suspend awards.
Shares Subject to the Plan; Adjustments . It is anticipated that no shares of our common stock will remain available for future awards granted under the MIP. In the event of certain changes in our corporate structure, including a stock split, stock dividend, recapitalization, spin-off, merger, reorganization or extraordinary cash dividend, our compensation committee will make appropriate adjustments to prevent dilution or enlargement of the benefits intended to be made under the MIP.
Stock Options. Incentive and non-qualified stock options have been granted under the MIP. Following a termination of employment, non-qualified options may be exercised, to the extent vested as of the date of termination (or to the extent vested pursuant to the terms of the KESP or under a participant’s employment agreement, as applicable), for three months following termination (or pursuant to the terms of the KESP or under a participant’s employment agreement, as applicable). Incentive stock options may be exercised, to the extent vested upon a participant’s termination of employment, for three months following termination, provided that, in the case of certain of the option grants, if the termination is by the Company without cause or by the participant for good reason (both as defined in the MIP), or due to the participant’s death or disability, vested options are exercisable until either the fourth anniversary of the grant date or the second anniversary of the termination, whichever is later (but in no case later than the expiration date).
Restricted Shares, Restricted Stock Units and Other Share-Based Awards . Restricted shares, restricted stock units and shares of vested common stock have been granted under the MIP. Restricted shares vest and become non-forfeitable as set forth in the applicable award agreement, subject to the recipient’s continued employment with us. The restricted share awards granted to our NEOs and other key employees will vest ratably over a three-year period. Upon a participant’s termination of employment, all unvested restricted shares are immediately forfeited (except as otherwise provided in the participant’s employment agreement or in the KESP). Restricted stock units were granted to non-employee directors and are scheduled to fully vest on the day before the first anniversary of the grant date, subject to the director’s continued service with us. All unvested restricted stock units are immediately forfeited upon a director’s termination of service. Fully vested shares of our

311


common stock were granted to our NEOs and other key employees as part of our emergence from our bankruptcy proceedings.
Change-in-Control. Upon a change in control of the Company or an initial public offering, all awards granted under the MIP will vest. In the event of certain corporate transactions specified in the MIP, including a merger, consolidation, sale of all or substantially all of our assets, or an initial public offering, the compensation committee may take any action it deems necessary with respect to outstanding equity awards, including providing for the assumption of awards, or the cashing-out awards.
Amendments, Suspensions or Termination. Our board of directors may suspend or terminate the MIP at any time and may amend the MIP from time to time. Amendments, suspensions or terminations must be approved by our stockholders if such approval is necessary to comply with tax or regulatory requirements that our board deems it necessary or desirable to comply. According to its terms, the MIP will automatically terminate in 2026, unless earlier terminated.
Contura Energy, Inc. Annual Incentive Bonus Plan
The company has adopted the Contura Energy, Inc. Annual Incentive Bonus Plan, (the “Bonus Plan”) in which our officers and key employees are eligible to participate. The Bonus Plan is designed to advance the interests of our stockholders by providing incentives to employees to achieve performance goals critical to the success and growth of our company.
The maximum amount that may be awarded under the Bonus Plan to a participant in any one year is $15 million.
Under the Bonus Plan, the compensation committee has full authority to make awards and to establish the terms of such awards, including performance goals and performance measures used. Awards under the Bonus Plan may be based on a percentage of an employee’s base salary or expressed in another way. The compensation committee has the authority to reduce awards if it concludes that doing so is necessary or appropriate under the circumstances.
If a participant in the Bonus Plan is involuntarily terminated (other than for cause, as defined in the participant’s employment agreement or, in the absence of an employment agreement, as defined in any applicable company plans or employment policies in effect at the time of the termination) during the period beginning three months prior to and ending one year following a change of control of the Company (as defined in the Bonus Plan), Bonus Plan awards will be deemed fully earned at the target level. If a participant separates from service for any other reason prior to the end of a performance period, the award will be forfeited and the participant will not be entitled to any cash payment for the applicable performance period.
If we determine that a participant engaged either in intentional misconduct which caused the need for a restatement of our financial results or in ethical misconduct in violation of our code of business ethics, we may require the participant to pay back any cash compensation previously paid under the Bonus Plan.
Each year, the compensation committee approves performance measures or metrics upon which awards may be paid out under the Bonus Plan. In 2017, the compensation committee approved the following metrics under the Bonus Plan, as discussed more fully in “Executive Compensation—Executive Compensation Process”: EBITDA (40%), Cost of Coal Sales per Ton Sold (30%), NFDL Rate (20%) and Environmental Compliance (10%). In January 2018, the compensation committee approved the following metrics under the Bonus Plan: EBITDA (30%), Cost of Coal Sales per Ton Sold – CAPP (15%), Cost of Coal Sales per Ton Sold – NAPP (10%), SG&A Expense (15%), NFDL Rate (20%) and Environmental Compliance (10%).
Deferred Compensation Plan
The company approved the Contura Energy, Inc. Deferred Compensation Plan (the “Deferred Compensation Plan”) to permit certain of our highly-compensated employees to receive supplemental retirement benefits in excess of the tax-qualified plan limits under the Code. The Deferred Compensation Plan is designed to further the interests of our stockholders by helping us attract and retain key talent by providing them with these additional retirement benefits. Under the Deferred Compensation Plan, our CEO and Chief Administrative Officer may designate those key employees who are eligible to participate in the Deferred Compensation Plan. The compensation committee has the authority to approve designated participants before they may participate in the plan, unless the compensation committee delegates such authority to an

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executive officer. The company maintains a supplemental retirement account for each participant to which the Company credits annual contributions equal to the sum of (i) the participant’s compensation that is in excess of the federal tax-qualified plan limit under Section 401(a)(17) of the Code multiplied by the aggregate matching company contribution percentage for our tax-qualified retirement plans in effect for the applicable year, plus, in the discretion of our compensation committee, (ii) a discretionary contribution in an amount equal to a percentage of the participant’s eligible compensation under our tax-qualified plans.
Upon a participant’s termination of employment without cause or by the participant for good reason, involuntary termination in connection with a change in control (as determined by the Company in its discretion prior to the change in control) or due to death or disability (all as defined in the participant’s employment agreement or under the 2017 Plan, as applicable), the participant will receive a prorated discretionary contribution credit as of December 31st of the year in which the termination occurred. All contributions made to participant accounts are fully vested when credited.
The company may amend, modify or suspend the Deferred Compensation Plan in its discretion, provided that any such amendment, modification or suspension does not reduce the accrued benefit of any participant in the plan (unless such modification or amendment is for the purpose of bringing the plan into compliance with Section 409A of the Code).

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ACCOUNTING TREATMENT OF THE MERGERS
The mergers will be accounted for in accordance with US GAAP and in accordance with the FASB’s ASC 805—Business Combinations. Contura will be treated as the acquirer of Alpha for accounting and financial reporting purposes. For additional information, please see “Selected Unaudited Pro Forma Condensed Combined Financial Information” and the notes related thereto beginning on page 26. The assets and liabilities of Alpha will be recorded, as of the completion of the mergers, at their fair values and consolidated with those of Contura. The purchase price will be determined based on the number of shares of common stock issued and the trading price of shares of Contura common stock on the date of the mergers. Contura will allocate the purchase price to the fair value of Alpha’s tangible and intangible assets and liabilities at the acquisition date, with the excess purchase price, if any, being recorded as goodwill. Under the acquisition method of accounting, goodwill is not amortized but is tested for impairment at least annually. The operating results of Alpha will be part of the combined company beginning on the date of the mergers.

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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE MERGERS
The following discussion addresses the material U.S. federal income tax consequences of the mergers to holders of Holdings common stock and Class C-1 common stock who exchange their shares of common stock for Contura common stock in the mergers. This discussion is based on the Code, applicable Treasury regulations, administrative interpretations and court decisions as in effect as of the date of this joint proxy statement, all of which may change, possibly with retroactive effect.
This discussion addresses only the consequences of the exchange of shares of Holdings common stock and Class C-1 common stock held as capital assets (generally, assets held for investment). It does not address all aspects of U.S. federal income taxation that may be important to a U.S. Holder in light of its particular circumstances or to a holder subject to special rules, such as:
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a financial institution, a regulated investment company or an insurance company;
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a tax-exempt organization;
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a dealer or broker in securities;
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a stockholder who holds Holdings common stock or Class C-1 common stock as part of a hedge, appreciated financial position, straddle, conversion or other risk reduction transaction;
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a stockholder whose “functional currency” is not the U.S. Dollar;
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a stockholder that beneficially owns 5% or more of Holdings common stock or Class C-1 common stock; or
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a stockholder that acquired Holdings common stock or Class C-1 common stock pursuant to the exercise of compensatory options or otherwise as compensation.
If a partnership holds shares of Holdings common stock or Class C-1 common stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. A partner of a partnership holding shares of Holdings common stock or Class C-1 common stock should consult its tax advisors.
This discussion assumes that neither the Holdings common stock nor the Class C-1 common stock is “regularly traded on an established securities market” within the meaning of Section 897 of the Code.
This discussion does not address any estate or gift or other non-income tax consequences or any state or local, or non-U.S. tax consequences of the mergers. All Alpha stockholders should consult their tax advisors regarding the tax consequences of the mergers.
U.S. Federal Income Tax Consequences to U.S. Holders
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of Holdings common stock or Class C-1 common stock who for U.S. federal income tax purposes is:
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a citizen or resident of the United States;
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a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States or of any political subdivision thereof; or
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an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source.
Contura expects each merger, for U.S. federal income tax purposes, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. The completion of the mergers is not conditioned on the receipt of an opinion of counsel to that effect, and neither Alpha nor Contura intends to request a ruling from the IRS regarding the qualification of either merger as a reorganization. Accordingly, even if Alpha and Contura conclude that each merger qualifies as a reorganization for U.S. federal income tax purposes, no assurance can be given that the IRS will not challenge that conclusion or that a court would

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not sustain such a challenge. Contura, ANR and Holdings will not recognize any gain or loss for U.S. federal income tax purposes as a result of the mergers.
If a merger is treated as a “reorganization” within the meaning of Section 368(a) of the Code:
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A U.S. Holder will not recognize any gain or loss upon the receipt of Contura common stock, but will recognize gain or loss with respect to cash received in lieu of a fractional share of Contura common stock (as described below).
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A U.S. Holder will have an adjusted tax basis in the Contura common stock received in the merger (including any fractional share deemed received and redeemed as described below) equal to the adjusted tax basis of the shares of Holdings common stock or Class C-1 common stock, as applicable, surrendered by such holder in the applicable merger.
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The holding period for Contura common stock received in a merger (including any fractional share deemed received and redeemed as described below) will include the holding period for the Holdings common stock or Class C-1 common stock, as applicable, surrendered by such U.S. Holder in the applicable merger.
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If a U.S. Holder acquired different blocks of Holdings common stock or Class C-1 common stock, as applicable, at different times or different prices, such U.S. Holder must determine its adjusted tax basis and holding period separately with respect to each such block of common stock.
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A U.S. Holder that receives cash in lieu of a fractional share of Contura common stock will be treated as having received the fractional share pursuant to the mergers and then as having exchanged such fractional share for cash in a redemption by Contura. As a result, such U.S. Holder will generally recognize gain or loss on any cash received in lieu of a fractional share of Contura common stock equal to the difference between the amount of cash received and the tax basis allocated to such fractional share. Such gain or loss generally will be capital gain or loss, and will be long-term capital gain or loss if the holding period in the stock surrendered in the applicable merger exceeds one year as of the closing date of the merger. Long-term capital gains of non-corporate U.S. Holders currently are eligible for preferential U.S. federal income tax rates. The deductibility of capital losses is subject to limitations.
If, however, a merger does not qualify as a “reorganization” for U.S. federal income tax purposes, then a U.S. Holder generally would recognize capital gain or loss in an amount equal to the difference between (i) the fair market value of the merger consideration to which such U.S. Holder is entitled and (ii) such holder's tax basis in the shares of Holdings common stock or Class C-1 common stock, as applicable, surrendered in the merger. Such capital gain or loss generally would be long-term capital gain or loss if the U.S. Holder’s holding period in the common stock surrendered in the applicable merger exceeds one year as of the closing date of the merger. If a U.S. Holder acquired different blocks of Holdings common stock or Class C-1 common stock at different times or different prices, such U.S. Holder must determine its adjusted tax basis and holding period separately with respect to each such block of common stock. Long-term capital gains recognized by a non-corporate U.S. Holder currently are eligible for preferential U.S. federal income tax rates. The deductibility of capital losses is subject to limitations. A U.S. Holder's holding period in the shares of Contura common stock received in a merger would begin on the day following the merger. Moreover, if the merger of ANR does not qualify as a “reorganization” for U.S. federal income tax purposes, depending on a U.S. Holder’s particular circumstances, it is possible that a U.S. Holder could be deemed to have received a distribution for federal income tax purposes in an amount equal to the fair market value of the Contura common stock received by such U.S. Holder in the ANR merger. Holders should consult their own tax advisors about the federal income tax consequences of the mergers in the event that either merger does not qualify as a “reorganization.” The remainder of this discussion assumes that each merger will qualify as a “reorganization” for U.S. federal income tax purposes.
U.S. Federal Income Tax Consequences to Non-U.S. Holders
For purposes of this discussion, a “non-U.S. Holder” is a beneficial owner of Holdings common stock or Class C-1 common stock who for U.S. federal income tax purposes is:
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a nonresident alien individual;
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a foreign corporation; or

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•
a foreign estate or trust.
The U.S. federal income tax consequences of the mergers to a non-U.S. Holder depend on whether Holdings or ANR, as applicable, was a USRPHC at any time during the non-U.S. Holder’s holding period of the Holdings common stock or Class C-1 common stock, as applicable, and on whether the applicable merger qualifies as a reorganization.
If Holdings or ANR, as applicable, was not a USRPHC at any time during the non-U.S. Holder’s holding period of the Holdings common stock or Class C-1 common stock, as applicable, then:
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If the applicable merger qualifies as a “reorganization” for U.S. federal income tax purposes, such non-U.S. Holder will generally not recognize gain or loss for U.S. federal income tax purposes in the merger.
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If the applicable merger does not qualify as a “reorganization” for U.S. federal income tax purposes, then such non-U.S. Holder would generally recognize gain or loss in the applicable merger but such non-U.S. Holder would generally not be subject to U.S. tax on such gain or loss unless:
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such gain or loss was effectively connected with the non-U.S. Holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, was attributable to a permanent establishment or fixed base maintained by the non-U.S. Holder in the United States), in which case such non-U.S. Holder would generally be taxed on such gain in the same manner as a U.S. person (and, if such non-U.S. Holder was a corporation for U.S. federal income tax purposes, an additional branch profits tax at a rate of 30% (or a lower treaty rate) could apply), or
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such non-U.S. Holder was an individual present in the United States for 183 days or more during the taxable year of the mergers and certain other conditions were met, in which case such non-U.S. Holder would generally be subject to U.S. federal income tax at a rate of 30% on the amount by which such non-U.S. Holder’s capital gains allocable to U.S. sources, including gain from the disposition pursuant to the mergers, exceed any capital losses allocable to U.S. sources, except as otherwise required by an applicable income tax treaty.
However, depending on a non-U.S. Holder’s particular circumstances, if the merger of ANR does not qualify as a “reorganization” for U.S. federal income tax purposes, it is possible that a non-U.S. Holder could be deemed to have received a distribution for federal income tax purposes in an amount equal to the fair market value of the Contura common stock received by such holder in the ANR merger, which may (in whole or in part) be subject to a gross U.S. federal income tax of 30% (or such lower rate as may be specified pursuant to an applicable income tax treaty) and withholding.
If Holdings or ANR, as applicable, was a USRPHC at any time during the non-U.S. Holder’s holding period of the Holdings common stock or Class C-1 common stock, as applicable, and assuming that shares of Contura common stock are regularly traded on the NYSE following the merger, then:
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Except as noted below, such non-U.S. Holder will generally recognize gain in the applicable merger and will be subject to U.S. federal income tax on any such recognized gain. The amount of recognized gain will generally equal the difference between (i) the fair market value of the merger consideration to which such non-U.S. Holder is entitled and (ii) such non-U.S. Holder's tax basis in the shares of Holdings common stock or Class C-1 common stock, as applicable, surrendered in the merger.
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However, such non-U.S. Holder will not recognize gain in the applicable merger if (i) such non-U.S. Holder will own immediately after the mergers (or has owned during the five-year period preceding the mergers), actually or constructively, more than 5% of the outstanding shares of Contura common stock, (ii) the merger is treated as a “reorganization” for U.S. federal income tax purposes, (iii) Contura is a USRPHC and (iv) the non-U.S. Holder complies with certain procedural requirements prescribed by applicable Treasury regulations, including the requirement that the non-U.S. Holder file a U.S. federal income tax return for the taxable year of the merger.
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Depending on a non-U.S. Holder’s particular circumstances, if the merger of ANR does not qualify as a “reorganization” for U.S. federal income tax purposes, it is possible that a non-U.S. Holder could be deemed to have received a distribution for federal income tax purposes in an amount equal to the fair market value of the Contura common stock received by such non-U.S. Holder in the ANR merger, which may (in whole or in part) be subject to a

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gross U.S. federal income tax of 30% (or such lower rate as may be specified pursuant to an applicable income tax treaty) and withholding.
Non-U.S. Holders that own (or owned during the relevant period), actually or constructively more than 5% of the outstanding shares of Contura common stock may be subject to U.S. federal income tax on gain recognized upon the future disposition of Contura common stock as described above under “Risk Factors—Risks Related to the Ownership of our Common Stock.”
Each non-U.S. Holder should consult its tax adviser with respect to other U.S. tax consequences of the mergers in the event that either merger does not qualify as a reorganization, including the possible imposition of a branch profits tax at a rate of 30% (or a lower treaty rate) if such non-U.S. Holder is a corporation.
Tax Consequences to Holders Exercising Dissenters’ Rights
A U.S. Holder who receives cash pursuant to the exercise of dissenters’ rights generally will recognize capital gain or loss equal to the difference between the cash received in the exchange and such holder's tax basis in the shares of Holdings common stock or Class C-1 common stock, as applicable.
The U.S. federal income tax consequences to a non-U.S. Holder that exercises its dissenters’ rights will depend on whether Holdings or ANR, as applicable, was a USRPHC at any time during the non-U.S. Holder’s holding period of the Holdings common stock or Class C-1 common stock, as applicable. If Holdings or ANR, as applicable, was a USRPHC at any time during the non-U.S. Holder’s holding period, such non-U.S. Holder who receives cash pursuant to the exercise of dissenters’ rights will generally recognize gain or loss equal to the difference between the cash received in the exchange and such holder's tax basis in the shares of Holdings common stock or Class C-1 common stock, as applicable, and will be subject to U.S. federal income tax on any such recognized gain. If Holdings or ANR, as applicable, was not a USRPHC at any time during the non-U.S. Holder’s holding period then such non-U.S. Holder who receives cash pursuant to the exercise of dissenters’ rights would generally recognize gain or loss in the exchange but such non-U.S. Holder would generally not be subject to U.S. tax on such gain or loss.
Information Reporting and Backup Withholding
Information returns will be filed with the IRS in connection with payments of cash in lieu of fractional shares of Contura common stock. Backup withholding may apply to cash paid in the transaction to a holder unless the holder provides proof of an applicable exemption or furnishes the holder’s taxpayer identification number and otherwise complies with all applicable requirements of the backup withholding rules. Any amounts withheld from payments to a holder under the backup withholding rules are not an additional tax and will be allowed as a refund or credit against the holder’s United States federal income tax liability, provided the required information is timely furnished to the IRS.
The preceding discussion is intended only as a general discussion of material U.S. federal income tax consequences of the mergers. The preceding discussion is not a complete analysis or discussion of all potential tax effects that may be important to you. Thus, you are strongly encouraged to consult your tax advisor as to the specific tax consequences resulting from the transaction, including tax return reporting requirements, the applicability and effect of federal, state, local and other tax laws and the effect of any proposed changes in the tax laws.


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LEGAL MATTERS
The validity of the issuance of the Contura shares of common stock to be issued pursuant to the mergers will be passed upon by Davis Polk & Wardwell LLP, New York, New York. Davis Polk & Wardwell LLP has passed upon the discussion above in “Material United States Federal Income Tax Consequences of the Mergers.”


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HOUSEHOLDING
Some banks, brokers and other nominee record holders may participate in the practice of “householding” the notice or the consent solicitation statement, as the case may be. This means that only one copy of each of the notice, or the consent solicitation statement, as the case may be, may have been sent to multiple stockholders in your household. Alpha will promptly deliver a separate copy of these documents to you if you write or call ANR, Inc., 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620, Telephone: (423) 574-5100. If you prefer to receive copies of such documents in the future, or if you are receiving multiple copies and would like to receive only one copy for your household, you should contact your bank, broker or other nominee, or you may contact us at the above address or phone number.


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EXPERTS
The consolidated financial statements of Contura Energy, Inc. and subsidiaries as of December 31, 2017 and 2016 and for the year ended December 31, 2017 (Successor) and for the period from July 26, 2016 to December 31, 2016 (Successor) and the related combined financial statements of Contura Energy, Inc. and subsidiaries for the period from January 1, 2016 to July 25, 2016 (Predecessor) and for the year ended December 31, 2015 (Predecessor), have been included herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing. The audit report refers to the Company’s acquisition of certain core coal operations of Alpha Natural Resources, Inc. in a transaction accounted for as a business combination. As a result of the acquisition, the consolidated financial information for the Successor periods is presented on a different cost basis than that for the Predecessor periods and, therefore, is not comparable.
The financial statements of Alpha Natural Resources Holdings, Inc. as of December 31, 2017 and 2016, and for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016, have been included herein in reliance upon the report of KPMG LLP, independent auditors, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of ANR, Inc. and subsidiaries as of December 31, 2017 and 2016, and for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016, have been included herein in reliance upon the report of KPMG LLP, independent auditors, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing. The audit report makes reference that ANR, Inc. and subsidiaries’ consolidated financial statements include all the adjustments necessary for the application of fresh start accounting to the ANR, Inc. successor entity.
The information appearing in this joint proxy statement and prospectus relating to the estimates of the quantity and quality of Contura’s and Alpha’s proven and probable coal reserves was prepared by Marshall Miller & Associates, Inc. an independent engineering firm, and has been included herein in reliance upon the authority of this firm as an expert in the matters.

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DEADLINES FOR SUBMITTING STOCKHOLDER PROPOSALS AND OTHER MATTERS
ANR
ANR held its annual meeting of stockholders on February 15, 2018. If the mergers are completed, there will be no future annual meetings of ANR stockholders. ANR’s bylaws provide that, in order to be timely, a nomination for director nominee(s) and/or notice of an item of business to be introduced at an annual meeting of ANR stockholders must (i) be received by the Office of the Corporate Secretary of ANR at 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620 not less than 90 nor more than 120 calendar days prior to the first anniversary date of the previous year’s annual meeting of ANR stockholders; provided that, if the date of the annual meeting of ANR stockholders is advanced more than 30 calendar days prior to or delayed by more than 30 calendar days after the anniversary of the preceding year’s annual meeting of ANR stockholders, notice by the ANR stockholder must be so delivered not later than the close of business on the later of the 90th calendar day prior to such annual meeting or the tenth calendar day following the day on which public disclosure of the date of such annual meeting is first made, and (ii) contain specified information concerning the director nominee(s) and/or the matters to be brought before such meeting and concerning the ANR stockholder proposing such matters as required by ANR’s bylaws. As a result, if ANR were to hold a 2019 annual meeting of stockholders, any notice given by or on behalf of an ANR stockholder under ANR’s bylaws would need to be received no earlier than October 18, 2018 and no later than November 17, 2018.
Holdings
Holdings held its annual meeting of stockholders on February 15, 2018. If the mergers are completed, there will be no future annual meetings of Holdings stockholders. Holdings’ bylaws provide that, in order to be timely, a nomination for director nominee(s) and/or notice of an item of business to be introduced at an annual meeting of Holdings stockholders must (i) be received by the Office of the Corporate Secretary of Holdings at 636 Shelby Street, 3rd Floor, Bristol, Tennessee 37620 not less than 90 nor more than 120 calendar days prior to the first anniversary date of the previous year’s annual meeting of Holdings stockholders; provided that, if the date of the annual meeting of Holdings stockholders is advanced more than 30 calendar days prior to or delayed by more than 30 calendar days after the anniversary of the preceding year’s annual meeting of Holdings stockholders, notice by the Holdings stockholder must be so delivered not later than the close of business on the later of the 90th calendar day prior to such annual meeting or the tenth calendar day following the day on which public disclosure of the date of such annual meeting is first made, and (ii) contain specified information concerning the director nominee(s) and/or the matters to be brought before such meeting and concerning the Holdings stockholder proposing such matters as required by Holdings’ bylaws. As a result, if Holdings were to hold a 2019 annual meeting of stockholders, any notice given by or on behalf of a Holdings stockholder under Holdings’ bylaws would need to be received no earlier than October 18, 2018 and no later than November 17, 2018.

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WHERE YOU CAN FIND MORE INFORMATION
Contura has filed with the Securities and Exchange Commission a registration statement on Form S-4 (including the annexes, exhibits, schedules and amendments thereto) under the Securities Act to register with the SEC the shares of Contura common stock to be issued hereby. This joint proxy statement and prospectus is a part of that registration statement and constitutes a prospectus of Contura in addition to being a joint proxy statement of ANR and Holdings for their special meetings of stockholders. The registration statement, including the attached annexes and exhibits, contains additional relevant information about Contura, Contura common stock and Alpha. As allowed by SEC rules, this joint proxy statement and prospectus does not contain all of the information you can find in the registration statement or the exhibits to the registration statement. Statements contained in this joint proxy statement and prospectus as to the contents of any contract, agreement or any other document are summaries of the material terms of such contract, agreement or other document and are not necessarily complete. With respect to each of these contracts, agreements or other documents filed as an exhibit to the registration statement, reference is made to the exhibits for a more complete description of the matter involved. The registration statement, such reports and other information can be inspected and copied at the Public Reference Room of the SEC located at 100 F Street NE, Washington, D.C. 20549. Copies of these materials may be obtained, upon payment of a duplicating fee, from the Public Reference Room of the SEC at 100 F Street NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. The SEC maintains a website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The address of the SEC’s website is www.sec.gov.
None of Contura or ANR and Holdings is currently subject to the informational requirements of the Exchange Act. Following the listing of the shares of the combined company on the NYSE, the combined company will become subject to the informational requirements of the Exchange Act, and, in accordance therewith, will file periodic reports and other information with the SEC.

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GLOSSARY
Acquisition. Refers to the transaction by which Contura acquired certain of Alpha’s core coal operations as part of the Alpha Restructuring.
Alpha Restructuring. The series of bankruptcy restructuring transactions which led to Alpha’s emergence from Chapter 11 bankruptcy on July 26, 2016.
Alpha’s Plan of Reorganization. Alpha’s plan of reorganization approved on July 7, 2016 and effective as of July 26, 2016.
ARNU. The Audibert-Arnu dilatometer test, which tests the expansion of coal.
Ash. Impurities consisting of iron, alumina and other incombustible matter that are contained in coal. Since ash increases the weight of coal, it adds to the cost of handling and can affect the burning characteristics of coal.
Assigned reserves. Coal that is planned to be mined at an operation that is currently operating, currently idled, or for which permits have been submitted and plans are eventually to develop the operation.
Back-to-Back Coal Supply Agreement. An agreement with Blackjewel (the “Buyer”) under the terms of the asset purchase agreement associated with the sale of PRB under which the Buyer will supply, deliver and sell to the Company, and the Company will accept, purchase and pay for, all coal that the Company is obligated to supply, deliver and sell under PRB coal supply agreements existing as of the transaction closing date that did not transfer to the Buyer at closing.
Bankruptcy Cases. Bankruptcy cases commenced in the Bankruptcy Court under chapter 11 of the Bankruptcy Code and captioned as In re Alpha Natural Resources, Inc., et al., No. 15-33896 (KRH) (Bankr. E.D. Va.).
Bankruptcy Court. The United States Bankruptcy Court for the Eastern District of Virginia.
Bankruptcy Plan. The Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, dated May 27, 2016, as modified and confirmed by the Order Confirming Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as Modified (Docket No. 3038), entered by the Bankruptcy Court on July 12, 2016 in connection with to the Bankruptcy Cases.
Bituminous coal. A common type of coal with moisture content less than 20% by weight. It is dense and black and often has well-defined bands of bright and dull material.
British Thermal Unit or BTU. A measure of the thermal energy required to raise the temperature of one pound of pure liquid water one degree Fahrenheit at the temperature at which water has its greatest density (39 degrees Fahrenheit).
Captive coal. In the context of coal volume, coal produced and processed by us, as well as small volumes purchased from third-party producers to blend with our produced coal in order to meet customer specifications.
Central Appalachia or CAPP. Coal producing area in eastern Kentucky, Virginia, southern West Virginia and a portion of eastern Tennessee.
Coal seam. Coal deposits occur in layers. Each layer is called a “seam.”
Coal slurry impoundment . Coal slurry consists of solid and liquid waste and is a by-product of the coal mining and preparation processes. It is a fine coal refuse and water mixture. Impoundment is for the storage of liquid and primarily noncombustible solids that are by-products of coal cleaning.
Coke. A hard, dry carbon substance produced by heating coal to a very high temperature in the absence of air. Coke is used in the manufacture of iron and steel. Its production results in a number of useful byproducts.
Continuous miner. A machine used in underground mining to cut coal from the seam and load onto conveyors or shuttle cars in a continuous operation. In contrast, a conventional mining unit must undertake separate cycles of cutting, drilling, shooting and loading.

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Continuous mining. A form of underground mining that cuts the coal from the seam and loads the coal onto shuttle cars or a conveyor system in a continuous operation, thus eliminating the separate cycles of cutting, drilling, shooting and loading.
Fossil fuel. Fuel such as coal, petroleum or natural gas formed from the fossil remains of organic material.
Hard coking coal (“HCC”). Hard coking coal is a type of met coal that is a necessary ingredient in the production of strong coke. It is evaluated based on the strength, yield and size distribution of coke produced from such coal, which is dependent on the rank and plastic properties of the coal. Hard coking coals trade at a premium to other coals due to their importance in producing strong coke and because they are a limited resource.
High BTU coal. Coal which has an average heat content of 12,500 BTUs per pound or greater.
High-Vol. A. High-volatile A bituminous coal.
High-Vol. B. High-volatile B bituminous coal.
Illinois Basin or ILB. Coal producing area in Illinois, Indiana and western Kentucky.
Longwall mining. The most productive underground mining method in the United States. A rotating drum is trammed mechanically across the face of coal, and a hydraulic system supports the roof of the mine while the drum advances through the coal. Chain conveyors then move the loosened coal to a standard underground mine conveyor system for delivery to the surface.
Low sulfur coal . Low sulfur steam coals have a sulfur content of 1.5% or less, and low sulfur met coals have a sulfur content of 1.0% or less.
Low-Vol. Low-volatile bituminous coal.
Metallurgical coal. The various grades of coal suitable for carbonization to make coke for steel manufacture. Also known as “met” coal, its quality depends on four important criteria: volatility, which affects coke yield; the level of impurities including sulfur and ash, which affect coke quality; composition, which affects coke strength; and basic characteristics, which affect coke oven safety. Met coal typically has a particularly high BTU but low ash and sulfur content.
Mid-Vol. Mid-volatile bituminous coal.
Mineable Coal. That portion of the coal reserve base which is commercially mineable and excludes all coal that will be left, such as in pillars, fenders or property barriers.
Mst. Million short tons.
Nitrogen oxide (NOx). A gas formed in high temperature environments such as coal combustion.
Northern Appalachia or NAPP. Coal producing area in Maryland, Ohio, Pennsylvania and northern West Virginia.
Operating Margin. Gross revenue less Total Cash Cost.
Overburden. Layers of earth and rock covering a coal seam. In surface mining operations, overburden is removed prior to coal extraction.
Powder River Basin or PRB. Coal producing area in northeastern Wyoming and southeastern Montana. This is the largest known source of coal reserves and the largest producing region in the United States.
Preparation plant. A preparation plant is a facility for crushing, sizing and washing coal to remove impurities and prepare it for use by a particular customer. The washing process has the added benefit of removing some of the coal’s sulfur content. A preparation plant is usually located on a mine site, although one plant may serve several mines.
Probable reserves. Reserves for which quantity and grade and/or quality are computed from information similar to that used for proven reserves, but the sites for inspection, sampling and measurement are farther apart or are otherwise less

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adequately spaced. The degree of assurance, although lower than that for proven reserves, is high enough to assume continuity between points of observation.
Productivity. As used in this joint proxy statement and prospectus, refers to clean tons of coal produced per underground man hour worked, as published by the MSHA.
Proven reserves. Reserves for which quantity is computed from dimensions revealed in outcrops, trenches, workings or drill holes; grade and/or quality are computed from the results of detailed sampling; and the sites for inspection, sampling and measurement are spaced so closely and the geologic character is so well defined that size, shape, depth and mineral content of reserves are well-established.
Reclamation. The process of restoring land and the environment to their original state following mining activities. The process commonly includes “recontouring” or reshaping the land to its approximate original appearance, restoring topsoil and planting native grass and ground covers. Reclamation operations are usually underway before the mining of a particular site is completed. Reclamation is closely regulated by both state and federal law.
Recoverable reserves. Metric tons of mineable coal that can be extracted and marketed after deduction for coal to be left behind within the seam (i.e., pillars left to hold up the ceiling, coal not economical to recover within the mine, etc.) and adjusted for reasonable preparation and handling losses.
Reserve. That part of a mineral deposit that could be economically and legally extracted or produced at the time of the reserve determination.
Roof. The stratum of rock or other mineral above a coal seam; the overhead surface of a coal working place.
Steam coal . Coal used by power plants and industrial steam boilers to produce electricity, steam or both. It generally is lower in BTU heat content and higher in volatile matter than metallurgical coal.
Subsidence. Lateral or vertical movement of surface land that occurs when the roof of an underground mine collapses. Longwall mining causes planned subsidence by the mining out of coal that supports the overlying strata.
Sulfur. One of the elements present in varying quantities in coal that contributes to environmental degradation when coal is burned. Sulfur dioxide is produced as a gaseous by-product of coal combustion.
Surface mine. A mine in which the coal lies near the surface and can be extracted by removing the covering layer of rock and soil (see “Overburden”).
T&L coal. In the context of coal volume, coal purchased from third-party producers and sold through our Trading and Logistics business.
Thermal coal. See definition for Steam coal .
Tons. A “short” or net ton is equal to 2,000 pounds. A “long” or British ton is equal to 2,240 pounds; a “metric” ton (or “ tonne ”) is approximately 2,205 pounds. Tonnage amounts in this joint proxy statement and prospectus are stated in short tons, unless otherwise indicated.
Total Cash Cost. The sum of the direct cash costs associated with the mining, processing and transport of the marketable product, general and administration overhead costs directly related to mine production and royalties, levies and other indirect taxes (excluding profit related taxes).
Unassigned reserves. Coal that is likely to be mined in the future, but which is not considered Assigned reserves.
Underground mine. Also known as a “deep” mine. Usually located several hundred feet below the earth’s surface, an underground mine’s coal is removed mechanically and transferred by shuttle car, continuous haulage or battery coal hauler and conveyor to the surface.

326


Index to Financial Statements
Table Of Contents
 
Page
 
 
 
 
 
 

F-1


Report of Independent Registered Public Accounting Firm

To the Stockholders and Board of Directors
Contura Energy, Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Contura Energy, Inc. and subsidiaries (the Company) as of December 31, 2017 and 2016, the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity, and cash flows for the year ended December 31, 2017 (Successor) and for the period July 26, 2016 to December 31, 2016 (Successor), the related combined statements of operations, comprehensive loss, business equity, and cash flows for the period January 1, 2016 to July 25, 2016 (Predecessor) and for the year ended December 31, 2015 (Predecessor), and the related notes (collectively, the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2017 and 2016, and the results of its operations and its cash flows for the year ended December 31, 2017 (Successor), the period July 26, 2016 to December 31, 2016 (Successor), the period January 1, 2016 to July 25, 2016 (Predecessor), and the year ended December 31, 2015 (Predecessor), in conformity with U.S. generally accepted accounting principles.
Basis of Presentation
As discussed in Note 1 to the financial statements, effective July 26, 2016, the Company acquired certain core coal operations of Alpha Natural Resources, Inc. in a transaction accounted for as a business combination. As a result of the acquisition, the consolidated financial information for the Successor periods is presented on a different cost basis than that for the Predecessor periods and, therefore, is not comparable.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

/s/ KPMG LLP
We have served as the Company’s auditor since 2016,
Greensboro, North Carolina
March 29, 2018


F-2


Financial Statements
CONTURA ENERGY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND
PREDECESSOR COMBINED STATEMENTS OF OPERATIONS
(Amounts in thousands, except share and per share data)
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from
July 26, 2016 to December 31, 2016
 
 
Period from
January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Revenues:
 

 
 
 
 
 

 
 

Coal revenues
$
1,392,481

 
$
431,692

 
 
$
344,692

 
$
816,010

Freight and handling revenues
247,402

 
70,544

 
 
52,076

 
97,237

Other revenues
10,086

 
4,060

 
 
14,343

 
12,774

Total revenues
1,649,969

 
506,296

 
 
411,111

 
926,021

Costs and expenses:
 

 
 

 
 
 

 
 

Cost of coal sales (exclusive of items shown separately below)
1,090,660

 
324,961

 
 
324,732

 
730,812

Freight and handling costs
247,402

 
70,544

 
 
52,076

 
97,237

Depreciation, depletion and amortization
34,910

 
5,973

 
 
66,076

 
149,197

Amortization of acquired intangibles, net
59,007

 
61,281

 
 
11,567

 
2,223

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
67,459

 
19,135

 
 
29,568

 
44,158

Asset impairment and restructuring
—

 
—

 
 
3,096

 
297,425

Secondary offering costs
4,491

 
—

 
 
—

 
—

Total other operating (income) loss:
 
 
 
 
 
 
 
 
Mark-to-market adjustment for acquisition-related obligations
3,221

 
(10,616
)
 
 
—

 
—

Gain on settlement of acquisition-related obligations
(38,886
)
 
—

 
 
—

 
—

Other expenses
178

 
—

 
 
2,184

 
(99
)
Total costs and expenses
1,468,442

 
471,278

 
 
489,299

 
1,320,953

Income (loss) from operations
181,527

 
35,018

 
 
(78,188
)
 
(394,932
)
Other income (expense):
 

 
 

 
 
 

 
 

Interest expense
(35,977
)
 
(20,496
)
 
 
(2
)
 
(28
)
Interest income
210

 
23

 
 
19

 
4

Loss on early extinguishment of debt
(38,701
)
 
—

 
 
—

 
—

Equity loss in affiliates
(3,339
)
 
(2,287
)
 
 
(2,735
)
 
(7,712
)
Mark-to-market adjustment for warrant derivative liability
—

 
(33,975
)
 
 
—

 
—

Bargain purchase gain
1,011

 
7,719

 
 
—

 
—

Miscellaneous income, net
1,025

 
232

 
 
473

 
(85
)
Total other expense, net
(75,771
)
 
(48,784
)
 
 
(2,245
)
 
(7,821
)
Income (loss) from continuing operations before reorganization items and income taxes
105,756

 
(13,766
)
 
 
(80,433
)
 
(402,753
)

F-3


Reorganization items, net
—

 
—

 
 
(20,989
)
 
(10,085
)
Income (loss) from continuing operations before income taxes
105,756

 
(13,766
)
 
 
(101,422
)
 
(412,838
)
Income tax benefit
67,979

 
1,920

 
 
39,881

 
155,052

Net income (loss) from continuing operations
173,735

 
(11,846
)
 
 
(61,541
)
 
(257,786
)
Discontinued operations:
 
 
 
 
 
 
 
 
(Loss) income from discontinued operations before income taxes
(36,894
)
 
1,467

 
 
(679
)
 
(259,317
)
Income tax benefit (expense) from discontinued operations
17,681

 
(551
)
 
 
(4,992
)
 
99,543

(Loss) income from discontinued operations
(19,213
)
 
916

 
 
(5,671
)
 
(159,774
)
Net income (loss)
$
154,522

 
$
(10,930
)
 
 
$
(67,212
)
 
$
(417,560
)
 
 
 
 
 
 
 
 
 
Basic income (loss) per common share:
 
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
17.01

 
$
(1.15
)
 
 
 
 
 
(Loss) income from discontinued operations
$
(1.89
)
 
$
0.09

 
 
 
 
 
Net income (loss)
$
15.12

 
$
(1.06
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Diluted income (loss) per common share
 
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
16.13

 
$
(1.15
)
 
 
 
 
 
(Loss) income from discontinued operations
$
(1.78
)
 
$
0.09

 
 
 
 
 
Net income (loss)
$
14.35

 
$
(1.06
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Weighted average shares - basic
10,216,464

 
10,309,310

 
 
 
 
 
Weighted average shares - diluted
10,770,005

 
10,309,310

 
 
 
 
 

See accompanying Notes to Consolidated Financial Statements.

F-4


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS) AND
PREDECESSOR COMBINED STATEMENTS OF COMPREHENSIVE LOSS
(Amounts in thousands)
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Net income (loss)
$
154,522

 
$
(10,930
)
 
 
$
(67,212
)
 
$
(417,560
)
Other comprehensive (loss) income, net of tax:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Employee benefit plans:
 
 
 
 
 
 
 
 
Current period actuarial (loss) gain
$
(3,832
)
 
$
3,268

 
 
$
(3,415
)
 
$
6,818

Income tax
—

 
(1,181
)
 
 
1,227

 
(549
)
 
$
(3,832
)
 
$
2,087

 
 
$
(2,188
)
 
$
6,269

Prior service (cost) credit for period
$
—

 
$
—

 
 
$
—

 
$
(8,854
)
Income tax
—

 
—

 
 
—

 
713

 
$
—

 
$
—

 
 
$
—

 
$
(8,141
)
Less: reclassification adjustment for amounts reclassified to earnings due to amortization of net actuarial (gain) loss and settlements
$
(203
)
 
$
—

 
 
$
206

 
$
121

Income tax
—

 
—

 
 
(74
)
 
(10
)
 
$
(203
)
 
$
—

 
 
$
132

 
$
111

Less: reclassification adjustment for amounts reclassified to earnings due to amortization of prior service credit
$
—

 
$
—

 
 
$
3,536

 
$
181

Income tax
—

 
—

 
 
(1,271
)
 
(15
)
 
$
—

 
$
—

 
 
$
2,265

 
$
166

 
 
 
 
 
 
 
 
 
Cash flow hedges:
 
 
 
 
 
 
 
 
Reclassification adjustment for amounts reclassified to earnings related to settlement of cash flow hedges
$
—

 
$
—

 
 
$
—

 
$
1,455

Income tax
—

 
—

 
 
—

 
(442
)
 
$
—

 
$
—

 
 
$
—

 
$
1,013

 
 
 
 
 
 
 
 
 
Total other comprehensive (loss) income, net of tax
$
(4,035
)
 
$
2,087

 
 
$
209

 
$
(582
)
Total comprehensive income (loss)
$
150,487

 
$
(8,843
)
 
 
$
(67,003
)
 
$
(418,142
)

See accompanying Notes to Consolidated Financial Statements.

F-5


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except share and per share data)
 
Successor
 
December 31, 2017
 
December 31, 2016
Assets
 

 
 

Current assets:
 

 
 

Cash and cash equivalents
$
141,924

 
$
127,948

Trade accounts receivable, net of allowance for doubtful accounts of $0 as of December 31, 2017 and December 31, 2016
127,326

 
164,038

Inventories, net
69,561

 
69,692

Assets held for sale
171

 
1,714

Short-term restricted cash
11,615

 
—

Short-term deposits
12,366

 
66

Prepaid expenses and other current assets
59,693

 
34,483

Current assets - discontinued operations
40,498

 
27,275

Total current assets
463,154

 
425,216

Property, plant, and equipment, net
196,579

 
155,982

Other acquired intangibles (net of accumulated amortization of $28,662 and $61,851 as of December 31, 2017 and December 31, 2016, respectively)
18,458

 
87,149

Long-term restricted cash
40,421

 
43,341

Long-term deposits
3,607

 
54,420

Deferred income taxes
78,744

 
—

Other non-current assets
28,005

 
17,465

Non-current assets - discontinued operations
7,632

 
163,179

Total assets
$
836,600

 
$
946,752

Liabilities and Stockholders’ Equity
 

 
 

Current liabilities:
 

 
 

Current portion of long-term debt
$
10,730

 
$
1,591

Trade accounts payable
76,319

 
80,796

Acquisition-related obligations - current
15,080

 
27,258

Liabilities held for sale
27,161

 
—

Accrued expenses and other current liabilities
58,771

 
65,379

Current liabilities - discontinued operations
54,114

 
43,588

Total current liabilities
242,175

 
218,612

Long-term debt
361,973

 
345,403

Acquisition-related obligations - long-term
20,332

 
59,088

Asset retirement obligations
52,434

 
78,763

Other non-current liabilities
59,276

 
86,541

Non-current liabilities - discontinued operations
7,762

 
121,121

Total liabilities
743,952

 
909,528

Commitments and Contingencies (Note 24)
 
 
 

F-6


Stockholders’ Equity
 
 
 
Preferred stock - par value $0.01, 2.0 million shares authorized, none issued
—

 
—

Common stock - par value $0.01, 20.0 million shares authorized, 10.7 million issued and 9.9 million outstanding at December 31, 2017 and 10.3 million issued and outstanding at December 31, 2016
108

 
103

Additional paid-in capital
40,616

 
45,964

Accumulated other comprehensive (loss) income
(1,948
)
 
2,087

Treasury stock, at cost: 0.8 million shares at December 31, 2017 and none issued at December 31, 2016
(50,092
)
 
—

Retained earnings (accumulated deficit)
103,964

 
(10,930
)
Total stockholders’ equity
92,648

 
37,224

Total liabilities and stockholders’ equity
$
836,600

 
$
946,752


See accompanying Notes to Consolidated Financial Statements.


F-7


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS AND
PREDECESSOR COMBINED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Operating activities:
 

 
 
 
 
 
 
 
Net income (loss)
$
154,522

 
$
(10,930
)
 
 
$
(67,212
)
 
$
(417,560
)
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
 
 
 
 
 
 
 
 
Depreciation, depletion and amortization
65,000

 
43,978

 
 
85,379

 
202,115

Amortization of acquired intangibles, net
59,007

 
61,281

 
 
11,567

 
2,223

Accretion of acquisition-related obligations discount
7,531

 
4,936

 
 
—

 
—

Mark-to-market adjustment for acquisition-related obligations
3,221

 
(10,616
)
 
 
—

 
—

Gain on settlement of acquisition-related obligations
(38,886
)
 
—

 
 
—

 
—

Bargain purchase gain
(1,011
)
 
(7,719
)
 
 
—

 
—

Equity loss in affiliates
3,325

 
2,280

 
 
2,726

 
7,700

Mark-to-market adjustment for warrant derivative liability
—

 
33,975

 
 
—

 
—

Mark-to-market adjustments for derivatives
—

 
—

 
 
—

 
4,683

Accretion of asset retirement obligations
21,275

 
10,819

 
 
12,422

 
17,897

Employee benefit plans, net
11,739

 
3,154

 
 
11,917

 
11,091

Deferred income taxes
(78,744
)
 
(1,180
)
 
 
(34,889
)
 
(250,680
)
Loss (gain) on disposal of property, plant, and equipment
—

 
216

 
 
216

 
17,438

Loss on sale of Powder River Basin
36,086

 
—

 
 
—

 
—

Asset impairment and restructuring
—

 
—

 
 
3,755

 
558,699

Non-cash reorganization items, net
—

 
—

 
 
3,837

 
7,726

Loss on early extinguishment of debt
38,701

 
—

 
 
—

 
—

Stock-based compensation
20,372

 
1,424

 
 
658

 
2,668

Other, net
2,314

 
1,356

 
 
38

 
207

Changes in operating assets and liabilities
 
 
 
 
 
 
 
 
Trade accounts receivable, net
34,840

 
(114,244
)
 
 
42,793

 
41,403

Inventories, net
441

 
(32,046
)
 
 
16,693

 
2,440

Prepaid expenses and other current assets
(40,425
)
 
(817
)
 
 
5,172

 
(2,399
)
Restricted cash
(8,695
)
 
49,459

 
 
(16,339
)
 
(4,190
)
Deposits
38,447

 
(55,407
)
 
 
(275
)
 
(1,566
)
Other non-current assets
24,498

 
(14,681
)
 
 
2,956

 
4,216

Trade accounts payable
6,102

 
59,242

 
 
(6,665
)
 
(1,534
)
Accrued expenses and other current liabilities
(12,207
)
 
51,053

 
 
3,680

 
(31,826
)
Acquisition-related obligations
(22,800
)
 
(9,300
)
 
 
—

 
—

Asset retirement obligations
(2,567
)
 
(514
)
 
 
(2,143
)
 
(3,619
)

F-8


Other non-current liabilities
(16,521
)
 
5,199

 
 
(15,596
)
 
(16,270
)
Net cash provided by operating activities
305,565

 
70,918

 
 
60,690

 
150,862

Investing activities:
 
 
 
 
 
 
 
 
Capital expenditures
(83,121
)
 
(34,497
)
 
 
(23,433
)
 
(59,533
)
Acquisition of mineral rights under federal lease
—

 
—

 
 
—

 
(42,130
)
Proceeds from sale of property, plant and equipment
2,579

 
1,787

 
 
526

 
10,503

Capital contributions to equity affiliates
(5,691
)
 
(2,738
)
 
 
(2,122
)
 
(5,874
)
Cash acquired in acquisition
—

 
51,000

 
 
—

 
—

Purchase of additional ownership interest in equity affiliate
(13,293
)
 
—

 
 
—

 
—

Cash paid on sale of Powder River Basin
(21,375
)
 
—

 
 
—

 
—

Other, net
(406
)
 
—

 
 
—

 
—

Net cash (used in) provided by investing activities
(121,307
)
 
15,552

 
 
(25,029
)
 
(97,034
)
Financing activities:
 
 
 
 
 
 
 
 
Proceeds from borrowings on debt
396,000

 
42,500

 
 
—

 
—

Principal repayments of debt
(369,500
)
 
—

 
 
—

 
—

Principal repayments of capital lease obligations
(1,009
)
 
(243
)
 
 
(42
)
 
(1,835
)
Debt issuance costs
(14,385
)
 
(243
)
 
 
—

 
—

Debt extinguishment costs
(25,036
)
 
—

 
 
—

 
—

Common stock repurchases and related expenses
(49,932
)
 
—

 
 
—

 
—

Debt amendment costs
(4,520
)
 
—

 
 
—

 
—

Proceeds from exercise of warrants
352

 
—

 
 
—

 
—

Dividend paid
(100,735
)
 
—

 
 
—

 
—

Principal repayments of notes payable
(1,517
)
 
(536
)
 
 
—

 
—

Transfers to Alpha
—

 
—

 
 
(35,780
)
 
(51,750
)
Net cash (used in) provided by financing activities
(170,282
)
 
41,478

 
 
(35,822
)
 
(53,585
)
Net increase (decrease) in cash and cash equivalents
13,976

 
127,948

 
 
(161
)
 
243

Cash and cash equivalents at beginning of period
127,948

 
—

 
 
269

 
26

Cash and cash equivalents at end of period
$
141,924

 
$
127,948

 
 
$
108

 
$
269

 
 
 
 
 
 
 
 
 
Supplemental cash flow information:
 
 
 
 
 
 
 
 
Cash paid for interest
$
40,635

 
$
356

 
 
$
—

 
$
—

Cash paid for income taxes
$
13,328

 
$
—

 
 
$
—

 
$
—

Cash received from income tax refunds
$
—

 
$
—

 
 
$
—

 
$
3,915

Supplemental disclosure of non-cash investing and financing activities:
 

 
 

 
 
 

 
 

Capital leases and capital financing - equipment
$
1,574

 
$
3,473

 
 
$
—

 
$
—

Accrued capital expenditures
$
9,408

 
$
4,778

 
 
$
13,376

 
$
17,213

Issuance of equity in connection with acquisition
$
—

 
$
44,644

 
 
$
—

 
$
—

Issuance of 10% Senior Secured First Lien Notes in connection with acquisition
$
—

 
$
285,936

 
 
$
—

 
$
—

Issuance of GUC Distribution Note in connection with acquisition
$
—

 
$
4,208

 
 
$
—

 
$
—

Issuance of warrants in connection with acquisition
$
—

 
$
1,167

 
 
$
—

 
$
—

See accompanying Notes to Consolidated Financial Statements.

F-9


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND
COMBINED STATEMENT OF PREDECESSOR BUSINESS EQUITY
(Amounts in thousands)
 
 
 
Additional Paid-in Capital
 
Accumulated
Other
Comprehensive (Loss) Income
 
 
 
Retained Earnings
(Accumulated Deficit)
 
Alpha’s Investment
 
Total Stockholders’ Equity / Predecessor Business Equity
 
Common Stock
 
 
 
Treasury Stock at Cost
 
 
 
 
Amount
 
 
 
Amount
 
 
 
Predecessor
 
 
 
 
 
 
 
 
 
 
 
 
 
Balances, December 31, 2014
$
—

 
$
—

 
$
4,717

 
$
—

 
$
(142,362
)
 
$
1,801,987

 
$
1,664,342

Net loss
—

 
—

 
—

 
—

 
(417,560
)
 
—

 
(417,560
)
Other comprehensive income (loss), net
—

 
—

 
(582
)
 
—

 
—

 
—

 
(582
)
Net distributions to Alpha
—

 
—

 
—

 
—

 
—

 
(32,303
)
 
(32,303
)
Balances, December 31, 2015
$
—

 
$
—

 
$
4,135

 
$
—

 
$
(559,922
)
 
$
1,769,684

 
$
1,213,897

Net loss
—

 
—

 
—

 
—

 
(67,212
)
 
—

 
(67,212
)
Other comprehensive income (loss), net
—

 
—

 
209

 
—

 
—

 
—

 
209

Net distributions to Alpha
—

 
—

 
—

 
—

 
—

 
(26,641
)
 
(26,641
)
Balances, July 25, 2016
$
—

 
$
—

 
$
4,344

 
$
—

 
$
(627,134
)
 
$
1,743,043

 
$
1,120,253

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Successor
 
 
 
 
 
 
 
 
 
 
 
 
 
Balances, July 26, 2016
$
—

 
$
—

 
$
—

 
$
—

 
$
—

 
$
—

 
$
—

Issuance of common stock in connection with acquisition
100

 
44,544

 
—

 
—

 
—

 
—

 
44,644

Net loss
—

 
—

 
—

 
—

 
(10,930
)
 
—

 
(10,930
)
Other comprehensive income (loss), net
—

 
—

 
2,087

 
—

 
—

 
—

 
2,087

Stock-based compensation and net issuance of common stock for share vesting
3

 
1,420

 
—

 
—

 
—

 
—

 
1,423

Balances, December 31, 2016
$
103

 
$
45,964

 
$
2,087

 
$
—

 
$
(10,930
)
 
$
—

 
$
37,224

Net income
—

 
—

 
—

 
—

 
154,522

 
—

 
154,522

Other comprehensive income (loss), net
—

 
—

 
(4,035
)
 
—

 
—

 
—

 
(4,035
)
Stock-based compensation and net issuance of common stock for share vesting
4

 
20,205

 
—

 
—

 
—

 
—

 
20,209

Dividend
—

 
(27,132
)
 
—

 
—

 
(73,603
)
 
—

 
(100,735
)
Common stock repurchase and related expenses
—

 
—

 
—

 
(50,040
)
 
—

 
—

 
(50,040
)
Retrospective warrants adjustment
—

 
1,166

 
—

 
—

 
33,975

 
—

 
35,141

Warrant exercises
1

 
413

 
—

 
(52
)
 
—

 
—

 
362

Balances, December 31, 2017
$
108


$
40,616


$
(1,948
)
 
$
(50,092
)

$
103,964


$
—


$
92,648

See accompanying Notes to Consolidated Financial Statements.

F-10
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)


(1) Business and Basis of Presentation
Business
Contura Energy, Inc. (“Contura”, the “Company”, “we” or “us”) is a private, Tennessee-based, coal supplier with affiliate mining operations across major coal basins in Pennsylvania, Virginia and West Virginia. With customers across the globe, high-quality reserves and significant port capacity, Contura reliably supplies both metallurgical coal to produce steel and thermal coal to generate power. Contura was formed to acquire and operate certain of Alpha Natural Resources, Inc.’s (“Alpha”) core coal operations (see Note 3), as part of the Alpha Restructuring. Contura began operations on July 26, 2016 and currently operates mining complexes in the Northern Appalachia (Cumberland mine complex) and Central Appalachian (the Nicholas mine complex in West Virginia, and the McClure and Toms Creek mine complexes in Virginia) regions.
As a result of the Alpha core coal operations’ acquisition, the historical financial statements are separated into Predecessor and Successor periods. Predecessor represents Contura prior to July 26, 2016, whereas Successor refers to the Company beginning July 26, 2016 and thereafter. For more detailed information regarding the Company’s and Predecessor’s consolidation and accounting policies, please refer to the Basis of Presentation discussion below and the financial statements and the notes thereto included elsewhere in this report.
Basis of Presentation
Together, the consolidated statement of operations, statement of comprehensive income, balance sheet, statement of cash flows and statement of stockholders’ equity for the Company and the combined statement of operations, statement of comprehensive loss, balance sheet, statement of cash flows and statement of business equity for the Predecessor are referred to as the “Financial Statements.” The Financial Statements are also referred to as consolidated (to reflect the Successor’s capital structure), and references across periods are generally labeled “Balance Sheets,” “Statements of Operations,” and “Statements of Cash Flows.”
The Consolidated Financial Statements include all wholly-owned subsidiaries’ results of operations for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016. All significant intercompany transactions have been eliminated in consolidation.
The Combined Predecessor Financial Statements presented include the assets, liabilities, operating results and cash flows of Contura, prepared on a carve-out basis using Alpha’s historical bases in the assets and liabilities and the historical results of operations of Contura. The Combined Predecessor Financial Statements have been derived from the consolidated financial statements and accounting records of Alpha. All transactions between Contura and Alpha have been included in these Combined Predecessor Financial Statements. The aggregate net effect of such transactions has effectively been considered settled for cash at the time of the transaction and reflected in the combined Predecessor statement of cash flows as “Transfers to Alpha.”
The Combined Predecessor Financial Statements also include expense allocations of $57,217 and $92,009 for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 , respectively, for certain corporate and overhead functions historically performed by Alpha, including, but not limited to, general corporate expenses related to finance, legal, information technology, human resources, employee benefits and incentives, insurance, stock-based compensation, engineering, asset management, and sales and logistics, which were included in cost of coal sales and selling, general and administrative expenses within both continuing and discontinued operations in the accompanying Statements of Operations. These amounts exclude reorganization items which are discussed in Note 22. These expenses have been allocated to the Predecessor based on direct usage when identifiable, with the remainder allocated on the basis of revenues, operating expenses, headcount or other relevant measures. The provision for income taxes has been prepared on a separate return basis. Management believes the assumptions underlying the Combined Predecessor Financial Statements, including the assumptions regarding the allocation of corporate expenses from Alpha, are reasonable. Nevertheless, the Combined Predecessor Financial Statements may not include all the expenses that would have been incurred had the Company been a stand-alone Company during the period presented and may not reflect the Company’s consolidated financial position, results of operations and cash flows had the Company been a stand-alone Company during the period. Actual costs that would have

F-11
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

been incurred if the Predecessor had been a stand-alone Company would depend on multiple factors, including organizational structure and strategic decisions made in various areas, including information technology and infrastructure.
Alpha used a centralized approach to cash management and financing of its operations. The majority of the Company’s cash during the Predecessor period was transferred to Alpha, which funded its operating and investing activities as needed. This arrangement is not reflective of the manner in which the Company would have been able to finance its operations had it been a stand-alone business separate from Alpha during the Predecessor period.
On August 3, 2015 (“Petition Date”), Alpha and each of its wholly-owned domestic subsidiaries other than ANR Second Receivables Funding LLC (collectively the “Alpha Debtors”) filed voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Virginia (“Bankruptcy Court”). The Alpha Debtors pursued a reorganization plan under which certain expenses were incurred and settlements negotiated, which were included within Reorganization items, net, during the Predecessor period. See Note 22 for further reorganization items disclosures. The Bankruptcy Court approved the Alpha Debtors Plan of Reorganization on July 7, 2016 and Alpha Debtors emerged from bankruptcy on July 26, 2016.
On December 8, 2017, the Company closed a transaction with Buyer to sell the Eagle Butte and Belle Ayr mines located in the Powder River Basin (“PRB”), Wyoming, along with related coal reserves, equipment, infrastructure and other real properties. The PRB results of operations and financial position are reported as discontinued operations in the Consolidated Financial Statements. The historical information in the accompanying Notes to the Consolidated Financial Statements has been restated to reflect the effects of the PRB operations being reported as discontinued operations in the Consolidated Financial Statements. See Note 4 for further information on discontinued operations.
The accompanying Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”).
(2) Summary of Significant Accounting Policies
Use of Estimates
The preparation of the Company’s Consolidated Financial Statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the Consolidated Financial Statements and the reported amounts of revenues and expenses during the reporting period. Significant items subject to such estimates and assumptions include inventories; mineral reserves; allowance for non-recoupable advanced mining royalties; asset impairments; reclamation obligations; post-employment and other employee benefit obligations; useful lives for, depletion and amortization; reserves for workers’ compensation and black lung claims; deferred income taxes; reserves for contingencies and litigation; liabilities subject to compromise; reorganization items, net; fair value of financial instruments; and fair value adjustments for acquisition accounting. Also, certain amounts in the Predecessor Financial Statements have been allocated in a way that management believes is reasonable and consistent in order to depict the historical financial position, operating results and cash flows of Contura on a carve-out basis. Estimates are based on facts and circumstances believed to be reasonable at the time; however, actual results could differ from those estimates.
Cash and Cash Equivalents
Cash and cash equivalents consist of cash held with reputable depository institutions and highly liquid, short-term investments with original maturities of three months or less. Cash and cash equivalents are stated at cost, which approximates fair value. At December 31, 2017 , the Company’s cash equivalents consisted of highly rated money market funds.
Restricted Cash
Restricted cash represents short-term and long-term cash deposits that are restricted as to withdrawal as required by certain agreements entered into by the Company and provide collateral in the amounts of $17,105, $29,265, and $5,666 as of December 31, 2017 and $11,195, $28,146, and $4,000 as of December 31, 2016 for securing the Company’s obligations under certain worker’s compensation, reclamation related bonds, and financial guarantees, respectively, which have been written on the Company’s behalf. The Company’s restricted cash is primarily invested in interest bearing accounts.

F-12
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Deposits
Deposits represent cash deposits held at third parties as required by certain agreements entered into by the Company to provide cash collateral. At December 31, 2017 , the Company had cash collateral in the form of short-term and long-term deposits to secure the Company’s obligations under reclamation related bonds and various other operating agreements in the amounts of $15,238 and $735, respectively. At December 31, 2016 , the Company had cash collateral in the form of short-term and long-term deposits to secure the Company’s obligations under reclamation related bonds and various other operating agreements in the amounts of $51,497 and $2,989, respectively.
Trade Accounts Receivable and Allowance for Doubtful Accounts
Trade accounts receivable are recorded at the invoiced amount and do not bear interest. The allowance for doubtful accounts is the Company’s best estimate of the amount of probable credit losses in the Company’s existing accounts receivable. The Company establishes provisions for losses on accounts receivable when it is probable that all or part of the outstanding balance will not be collected. The Company regularly reviews its accounts receivable balances and establishes or adjusts the allowance as necessary primarily using the specific identification method. The allowance for doubtful accounts was $0 at December 31, 2017 and 2016 . Account balances are written off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote.
Inventories
Coal is reported as inventory at the point in time the coal is extracted from the mine. Raw coal represents coal stockpiles that may be sold in current condition or may be further processed prior to shipment to a customer. Saleable coal represents coal stockpiles which require no further processing prior to shipment to a customer.
Coal inventories are valued at the lower of average cost or net realizable value. The cost of coal inventories is determined based on the average cost of production, which includes labor, supplies, equipment costs, operating overhead, depreciation, and other related costs. Net realizable value considers the projected future sales price of the product, less estimated preparation and selling costs.
Material and supplies inventories are valued at average cost, less an allowance for obsolete and surplus items.
Assets and Liabilities Held for Sale
The criteria to determine whether a disposal group should be classified as held-for-sale include: management with the authority to do so commits to a plan to sell the disposal group; the disposal group is available for immediate sale in its present condition subject only to terms that are usual and customary for sales of such disposal groups; an active program to locate a buyer and other actions required to complete the plan to sell the disposal group have been initiated; the sale of the disposal group is probable and expected to be completed within one year; the disposal group is being actively marketed for sale at a price that is reasonable in relation to its current value; and it is unlikely that significant changes to the plan will be made. If each of these criteria is met, the disposal group is classified as held for sale on the Company’s Balance Sheet with the assets and liabilities separately presented and measured at the lower of its carrying amount or estimated fair value less costs to sell. Depreciation, depletion and amortization expense is not recorded on assets to be divested once they are classified as held for sale. When the disposal group that is held for sale includes asset retirement obligations, the associated liability continues to be accreted once they are classified as held for sale until the disposal group is sold.
As of December 31, 2017, assets and liabilities held for sale in the amounts of $171 and $27,161, respectively, represent the fair value of the disposal group (comprised of property, plant and equipment and associated asset retirement obligations) at a preparation plant within the Company’s Central Appalachia Operations segment. As of December 31, 2016, assets held for sale in the amount of $1,714 represented the fair value of fixed assets at a closed mine within the Company’s Northern Appalachia Operations segment.
Discontinued Operations
In accordance with Accounting Standards Codification (“ASC”) 205-20-45, the Company treats a disposal transaction as a discontinued operation when the disposal of a component or group of components represents a strategic shift that will have

F-13
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

a major effect on the Company’s operations and financial results. In the period in which the discontinued operations criteria are met, the assets and liabilities of the discontinued operations are separately presented on the Company's Balance Sheets and the results of operations, including any gain or loss recognized, is reclassified to discontinued operations on the Company's Income Statement. See Note 4 for further information on discontinued operations.
Deferred Longwall Move Expenses
The Company defers the direct costs, including labor and supplies, associated with moving longwall equipment, the related equipment refurbishment costs, costs to drill gob gas vent holes and plug existing gas wells in advance of the longwall panel in prepaid expenses and other current assets. These deferred costs are amortized on a units-of-production basis into cost of coal sales over the life of the related panel of coal mined by the longwall equipment. The amount of deferred longwall move expenses was $13,790 and $5,264 as of December 31, 2017 and 2016, respectively, included within other current assets and other non-current assets in the Company’s Balance Sheets.
Advanced Mining Royalties
Lease rights to coal reserves are often acquired in exchange for royalty payments. Advance mining royalties are advance payments made to lessors under terms of mineral lease agreements that are recoupable against future production royalties. These advance payments are deferred and charged to operations as the coal reserves are mined. The Company regularly reviews recoverability of advance mining royalties and establishes or adjusts the allowance for advance mining royalties as necessary using the specific identification method. Advance royalty balances are generally charged off against the allowance when they are no longer recoupable.
Advanced mining royalties (net of allowance) were $855 and $1,417 as of December 31, 2017 and 2016, respectively, and are reported in other non-current assets in the Balance Sheets. The changes in the allowance for advance mining royalties reported in other non-current assets in the Balance Sheets were as follows:
Predecessor
 
Balance at December 31, 2014
$
3,196

Provision for non-recoupable advance mining royalties
243

Write-offs of advance mining royalties
(71
)
Balance at December 31, 2015
3,368

Provision for non-recoupable advance mining royalties
1,862

Balance at July 25, 2016
$
5,230

 
 
Successor
 
Balance at July 26, 2016
$
—

Provision for non-recoupable advance mining royalties
225

Balance at December 31, 2016
225

Provision for non-recoupable advance mining royalties
629

Write-offs of advance mining royalties
(22
)
Balance at December 31, 2017
$
832

Property, Plant, and Equipment
Costs for mine development incurred to expand capacity of operating mines or to develop new mines are capitalized and charged to operations on the units-of-production method over the estimated proven and probable reserve tons directly benefiting from the capital expenditures. Mine development costs include costs incurred for site preparation and development of the mines during the development stage less any incidental revenue generated during the development stage. Mining equipment, buildings and other fixed assets are stated at cost and depreciated on a straight-line basis over estimated useful lives ranging from one to twenty-five years. Leasehold improvements are amortized using the straight-line method, over the

F-14
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

shorter of the estimated useful lives or term of the lease. Major repairs and betterments that significantly extend original useful lives or improve productivity are capitalized and depreciated over the period benefited. Maintenance and repairs are expensed as incurred. When equipment is retired or disposed, the related cost and accumulated depreciation are removed from the respective accounts and any profit or loss on disposal is recognized in cost of coal sales. Costs to obtain owned and leased mineral rights are capitalized and amortized to operations as depletion expense using the units-of-production method. Only proven and probable reserves are included in the depletion base.
Acquired Intangibles
Application of acquisition accounting related to the acquisition from Alpha as well as other acquisitions during the Predecessor period resulted in the recognition of assets for above market-priced coal supply agreements and liabilities for below market-priced coal supply agreements on the date of the acquisition. The coal supply agreements were valued based on the present value of the difference between the expected net contractual cash flows based on the stated contract terms, and the estimated net contractual cash flows derived from applying forward market prices at the Acquisition Date for new contracts of similar terms and conditions.
During the period from July 26, 2016 to December 31, 2016 and as of December 31, 2017, coal supply agreement assets were amortized over the actual number of tons shipped over a weighted average useful life of approximately sixteen months. Coal supply agreement liabilities were completely amortized at December 31, 2016. Coal supply agreement assets are reported in other acquired intangibles and coal supply agreement liabilities are reported in other non-current liabilities in the Balance Sheets.
Future net amortization expense related to acquired intangibles is expected to be as follows:  
2018
$
15,978

2019
1,520

2020
960

2021
—

Thereafter
—

Total net future amortization expense
$
18,458

Asset Impairment
Long-lived assets, such as property, plant, and equipment, and purchased intangibles subject to amortization, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset or asset groups may not be recoverable. Recoverability of assets or asset groups to be held and used is measured by a comparison of the carrying amount of an asset or asset group to the estimated undiscounted future cash flows expected to be generated by the asset or asset group. Long-lived assets located in a close geographic area are grouped together for purposes of impairment testing when, after considering revenue and cost interdependencies, circumstances indicate the assets are used together to produce future cash flows. The Company’s asset groups generally consist of the assets and applicable liabilities of one or more mines and preparation plants and associated coal reserves for which cash flows are largely independent of cash flows of other mines, preparation plants and associated coal reserves. If the carrying amount of an asset or asset group exceeds its estimated future cash flows, the potential impairment is equal to the amount by which the carrying amount of the asset or asset group exceeds the fair value of the asset or asset group. The amount of impairment, if any, is allocated to the long-lived assets on a pro-rata basis, except that the carrying value of the individual long-lived assets are not reduced below their estimated fair value. See Note 10 for further disclosures related to asset impairments.  
Goodwill
Goodwill represents the excess of the purchase price over the fair value of the net identifiable tangible and intangible assets of acquired companies. Goodwill is not amortized; instead, it is tested for impairment annually or more frequently if indicators of impairment exist. The Company early adopted Accounting Standards Update (“ASU”) 2017-04 for the period ended December 31, 2017, which eliminated Step 2 of the quantitative goodwill impairment test.

F-15
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The Company first assesses goodwill on a qualitative basis. If the qualitative assessment indicates that an impairment potentially exists, then the Company tests its goodwill for impairment by comparing the fair value of each reporting unit to its carrying amount. Goodwill impairment exists when the estimated implied fair value of goodwill is less than its carrying value. As of December 31, 2017 and December 31, 2016, the Company had no goodwill.
Asset Retirement Obligations
Minimum standards for mine reclamation have been established by various regulatory agencies and dictate the reclamation requirements at the Company’s operations. The Company’s asset retirement obligations consist principally of costs to reclaim acreage disturbed at surface operations, estimated costs to reclaim support acreage, treat mine water discharge and perform other related functions at underground mines. The Company records these reclamation obligations at fair value in the period in which the legal obligation associated with the retirement of the long-lived asset is incurred. Changes to the liability at operations that are not currently being reclaimed are offset by increasing or decreasing the carrying amount of the related long-lived asset. Changes to the liability at operations that are currently being reclaimed are recorded to depreciation, depletion and amortization. Over time, the liability is accreted and any capitalized cost is depreciated or depleted over the useful life of the related asset. To settle the liability, the obligation is paid, and to the extent there is a difference between the liability and the amount of cash paid, a gain or loss upon settlement is recorded. The Company annually reviews its estimated future cash flows for its asset retirement obligations. See Note 15 for further disclosures related to asset retirement obligations.
Income Taxes
The Company recognizes deferred tax assets and liabilities using enacted tax rates for the effect of temporary differences between the book and tax basis of recorded assets and liabilities. Deferred tax assets are reduced by a valuation allowance if it is more likely than not that some portion or all of the deferred tax asset will not be realized. In evaluating its ability to recover deferred tax assets within the jurisdiction in which they arise, the Company considers all available positive and negative evidence, including the expected reversals of taxable temporary differences, projected future taxable income, taxable income available via carryback to prior years, tax planning strategies, and results of recent operations. The Company assesses the realizability of its deferred tax assets, including scheduling the reversal of its deferred tax assets and liabilities, to determine the amount of valuation allowance needed. Scheduling the reversal of deferred tax asset and liability balances requires judgment and estimation. The Company believes the deferred tax liabilities relied upon as future taxable income in its assessment will reverse in the same period and jurisdiction and are of the same character as the temporary differences giving rise to the deferred tax assets that will be realized.
For the Predecessor Financial Statements, the Company’s income tax provision was determined as if it filed income tax returns on a stand-alone basis. In jurisdictions where the Company had been included in the tax returns filed by Alpha, any income taxes payable resulting from the related income tax provision have been reflected in the balance sheet within Alpha’s investment.
See Note 19 for further disclosures related to income taxes.
Revenue Recognition
The Company earns revenues primarily through the sale of coal produced at Company operations and coal purchased from third parties. The Company recognizes revenue using the following general revenue recognition criteria: (i) persuasive evidence of an arrangement exists; (ii) delivery has occurred or services have been rendered; (iii) the price to the buyer is fixed or determinable; and (iv) collectability is reasonably assured.
Delivery on the Company’s coal sales is determined to be complete for revenue recognition purposes when title and risk of loss has passed to the customer in accordance with stated contractual terms and there are no other future obligations related to the shipment. For domestic shipments, title and risk of loss generally passes as the coal is loaded into transport carriers for delivery to the customer. For international shipments, title generally passes at the time coal is loaded onto the shipping vessel.
Freight and handling costs paid to third-party carriers and invoiced to coal customers are recorded as freight and handling costs and freight and handling revenues, respectively.

F-16
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Deferred Financing Costs
The costs to obtain new debt financing or amend existing financing agreements are generally deferred and amortized to interest expense over the life of the related indebtedness or credit facility using the effective interest method. Unamortized deferred financing costs are presented in the balance sheet as a direct deduction from the carrying amount of the debt liability, consistent with debt discounts or premiums.
Reorganization Items and Other Bankruptcy Related Costs
ASC Topic 852, Reorganizations, requires separate disclosure of reorganization items such as realized gains and losses from the settlement of pre-petition liabilities, and provisions for losses resulting from the reorganization of the business, as well as professional fees directly related to the process of reorganizing under Chapter 11. Refer to Note 22 for further details regarding reorganization items.
Workers’ Compensation and Pneumoconiosis (Black Lung) Benefits 
Workers’ Compensation
As of December 31, 2017 , the Company utilizes high-deductible insurance programs for workers’ compensation claims at its operations. Prior to July 26, 2016, the Company was self-insured for workers’ compensation claims at certain of its operations and was covered by third-party insurance providers at other locations, in addition to participating in the Wyoming state-run fund. The liabilities for workers’ compensation claims are estimates of the ultimate losses incurred based on the Company’s experience, and include a provision for incurred but not reported losses. Adjustments to the probable ultimate liabilities are made annually based on an actuarial study and adjustments to the liability are recorded based on the results of this study. These obligations are included in the Balance Sheets as accrued expenses and other current liabilities and other non-current liabilities with an offsetting insurance receivable within other non-current assets. See Note 20 for further disclosures related to workers’ compensation.
Black Lung Benefits
The Company is required by federal and state statutes to provide benefits to employees for awards related to black lung. As of December 31, 2017 , the Company utilizes high-deductible insurance programs for these benefits. Prior to July 26, 2016, the Company was self-insured at certain locations and covered by a third-party insurance provider at other locations. Charges are made to operations for black lung claims, as determined by an independent actuary at the present value of the actuarially computed liability for such benefits over the employee’s applicable term of service. The Company recognizes in its balance sheet the amount of the Company’s unfunded Accumulated Benefit Obligation (“ABO”) at the end of the year. Amounts recognized in accumulated other comprehensive income (loss) are adjusted out of accumulated other comprehensive income (loss) when they are subsequently recognized as components of net periodic benefit cost. See Note 20 for further disclosures related to black lung benefits.
Life Insurance Benefits
As part of the Alpha Restructuring and the Retiree Committee Settlement Agreement (see Note 14), the Company assumed the liability for life insurance benefits for certain disabled and non-union retired employees. Provisions are made for estimated benefits based on annual evaluations prepared by independent actuaries. Adjustments to the probable ultimate liabilities are made annually based on an actuarial study and adjustments to the liability are recorded based on the results of this study. These obligations are included in the Balance Sheet as accrued expenses and other current liabilities and other non-current liabilities. See Note 20 for further disclosures related to life insurance benefits.
E arnings (Loss) Per Shar e
Basic earnings per share is computed by dividing net income by the weighted-average number of outstanding common shares for the period. Diluted earnings per share reflects the potential dilution that could occur if instruments that may require the issuance of common shares in the future were settled and the underlying common shares were issued. Diluted earnings per share is computed by increasing the weighted-average number of outstanding common shares computed in basic earnings

F-17
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

per share to include the additional common shares that would be outstanding after issuance and adjusting net income for changes that would result from the issuance. Only those securities that are dilutive are included in the calculation. See Note 6 for further disclosures related to earnings per share.
Stock-Based Compensation
The Company recognizes expense for stock-based compensation awards based on their grant-date fair value using the Company’s stock price (OTC market price). The expense is recorded over the respective service period of the underlying award. See Note 21 for further disclosures related to stock-based compensation arrangements.
Derivative Instruments and Hedging Activities
The Company had formerly entered into swap agreements with financial institutions to mitigate the risk of price volatility for diesel fuel. All existing swap agreements were terminated in August 2015 due to Alpha’s bankruptcy filing.
Derivative financial instruments were recognized as either assets or liabilities in the Balance Sheets and measured at fair value. On the date a derivative instrument was entered into, the Company designated a qualifying derivative instrument as a hedge of the variability of cash flows to be received or paid related to a recognized asset or liability or forecasted transaction (cash flow hedge). The Company formally documented all relationships between hedging instruments and hedged items, as well as its risk-management objective and strategy for undertaking various hedge transactions. This process included linking all derivatives that were designated as cash flow hedges to specific firm commitments or forecasted transactions. The Company also formally assessed both at the hedge’s inception and on an ongoing basis, whether the derivatives that were used in hedging transactions were highly effective in offsetting changes in cash flows of the related hedged items. If it was determined that a derivative was not highly effective as a hedge or that it had ceased to be a highly effective hedge, the Company discontinued hedge accounting prospectively and recorded all future changes in fair value in current period earnings or losses.
For derivative instruments that were not designated as cash flow hedges, changes in fair value were recorded in current period earnings or losses. For derivative instruments that were designated as cash flow hedges, the effective portion of the changes in fair value were recorded in accumulated other comprehensive income (loss) and any portion that was ineffective was recorded in current period earnings or losses. Amounts recorded in accumulated other comprehensive income (loss) were reclassified to earnings or losses in the period the underlying hedged transaction affected earnings or when the underlying hedged transaction was probable of not occurring. See Note 18 for further disclosures related to derivative financial instruments and hedging activities.
Warrants
The Company issued Series A Warrants on July 26, 2016 and classified the warrants as a derivative liability as they possess an underlying amount (stock price), a notional amount (number of shares), require no initial net investment, and allow for net share settlement. Through June 30, 2017, the warrants were fair-valued using a Black-Scholes pricing model and a mark to market non-cash adjustment at each reporting period with changes in value reflected in earnings. The Company early adopted ASU 2017-11 for the period ended June 30, 2017, with retrospective adjustments to the Condensed Consolidated Balance Sheet through an adjustment to retained earnings as of the beginning of the current fiscal year for all prior period mark-to-market adjustments and adjustments to the Condensed Consolidated Statement of Operations through the reversal of all year-to-date mark-to-market adjustments.
The exercise price and the warrant share number will be adjusted in respect of certain dilutive events with respect to the common stock (namely, dividends or distributions on the common stock, share splits and combinations, above-market tender offers for common stock by Contura or a subsidiary thereof, and discounted issuances of common stock or rights or options to purchase common stock or securities convertible or exchangeable into common stock). Additionally, in the case of any reorganization (i.e., a consolidation, merger or sale of all or substantially all of the consolidated assets of Contura) pursuant to which the common stock is converted into cash, securities or other property, the warrants would become exercisable for such property. See Note 18 for further disclosures related to warrants.

F-18
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Equity Method Investments
Investments in unconsolidated affiliates that the Company has the ability to exercise significant influence over, but not control, are accounted for under the equity method of accounting. Under the equity method of accounting, the Company records its proportionate share of the entity’s net income or loss at each reporting period in the Statements of Operations in other income (expense), with a corresponding entry to increase or decrease the carrying value of the investment. The carrying value of the Company’s equity method investments was $16,095 and $172 as of December 31, 2017 and 2016, respectively.
New Accounting Pronouncements
Revenue Recognition: In May 2014, the Financial Accounting Standards Board (“FASB”) issued ASU 2014-09, Revenue from contracts with customers (Topic 606), which, along with amendments issued in 2015 and 2016, will replace substantially all current U.S. GAAP guidance on this topic and eliminate industry-specific guidance. In addition, the standard requires disclosure of the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers.
The standard is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities), with early adoption permitted. The guidance permits two methods of adoption: full retrospective method (retrospective application to each prior reporting period presented) or modified retrospective method (retrospective application with the cumulative effect of initially applying the guidance recognized at the date of initial application and providing certain additional disclosures). The Company adopted ASU 2014-9 as of January 1, 2018, using the modified retrospective method. The Company will apply the standard to all customer contracts entered into as of or after the date of initial application. Subsequent to the adoption of ASU 2014-09, freight and handling revenues will be presented within coal revenues within the Company’s Statements of Operations. The Company does not expect the adoption of the standard to have an overall material impact on the Company’s consolidated financial statements. The Company also reviewed the disclosure requirements under the new standard and is compiling information needed for the expanded disclosures required during the first quarter of 2018.
Leases : In February 2016, the FASB issued ASU 2016-02, Leases. The standard requires a lessee to recognize a right-of-use asset and a lease liability on the balance sheet, with the exception of leases with lease terms of 12 months or less. Additional qualitative disclosures along with specific quantitative disclosures will also be required. The standard is effective for annual reporting periods beginning after December 15, 2019 (December 15, 2018 for public entities), with early adoption permitted. The impact will depend on the Company's lease portfolio at the time of adoption. Management is currently evaluating the impact on the Company's financial statements and related disclosures.
Statement of Cash Flows: In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments. This update addresses whether to present certain specific cash flow items as operating, investing or financing activities. The standard is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities) and is required to be adopted using a retrospective approach if practicable, with early adoption permitted. The classification requirements under the new guidance are either consistent with the Company’s current practices or are not applicable to its activities and are therefore not expected to have a material impact on classification of cash receipts and cash payments in the Company’s statements of cash flows.
In November 2016, the FASB issued ASU 2016-18 Statement of Cash Flows (Topic 230): Restricted Cash (“ASU 2016-18”). The amendments in this update provide guidance on restricted cash presentation in the statement of cash flows. ASU 2016-18 is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities), and interim periods within annual periods beginning after December 15, 2019 (December 15, 2017 for public entities). Early adoption is permitted. As a result of this guidance, the Company will combine restricted cash with unrestricted cash and cash equivalents when reconciling the beginning and end of period balances on its statements of cash flows.
Goodwill: In January 2017, the FASB issued ASU 2017-04 Intangibles - Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment. This update eliminates Step 2 from the quantitative goodwill impairment test. Instead, an entity should assess goodwill on a qualitative basis and, if the qualitative assessment indicates that an impairment potentially exists, an entity should perform its goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount. The standard is effective for annual reporting periods beginning after December 15, 2020 (December 15, 2019 for

F-19
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

public entities). Early adoption is permitted. The Company has adopted this guidance for the year ended December 31, 2017, eliminating Step 2 of the Company’s quantitative impairment test. The adoption of this update did not have a material impact on the Company’s financial statements.
Retirement Benefits : In March 2017, the FASB issued ASU 2017-07, Improving the Presentation of Net Periodic Pension Cost and Net Periodic Post-retirement Benefit Cost. This update requires that an employer disaggregate the service cost component from the other components of net periodic benefit cost. In addition, only the service cost component will be eligible for capitalization. The standard is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities). The new guidance is to be applied retrospectively for income statement effect and prospectively for balance sheet effects. The adoption of this guidance will impact financial statement presentation but will not materially impact the Company’s results of operations, financial condition, or cash flows.
Derivatives : In July 2017, the FASB issued ASU 2017-11 Earnings Per Share (Topic 260); Distinguishing Liabilities from Equity (Topic 480); Derivatives and Hedging (Topic 815) (“ASU 2017-11”). Under ASU 2017-11, when determining whether certain financial instruments should be classified as liabilities or equity instruments, a down round feature no longer precludes equity classification when assessing whether the instruments are indexed to an entity’s own stock. ASU 2017-11 is effective for annual reporting periods beginning after December 15, 2019 (December 15, 2018 for public entities) and interim periods within fiscal years beginning after December 15, 2020 (December 15, 2018 for public entities). Early adoption is permitted for all entities, including adoption in an interim period. The Company has elected to early adopt this ASU 2017-11 for fiscal year 2017 and all interim periods therein. See Note 18 for detail on the impact this guidance had on the Company’s financial statements and disclosures.
Comprehensive Income: In February 2018, the FASB issued ASU 2018-02, Income Statement - Reporting Comprehensive Income (Topic 220), Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income (“ASU 2018-02”). ASU 2018-02 allows an election to reclassify the stranded tax effects resulting from the Tax Cuts and Jobs Act from accumulated other comprehensive income to retained earnings. The standard is effective for all entities for annual reporting periods beginning after December 15, 2018, and interim periods within those annual reporting periods, with early adoption permitted. The Company early adopted ASU 2018-02 during the fourth quarter of 2017, electing to not reclassify the income tax effects of the Tax Cuts and Jobs Act from accumulated other comprehensive income to retained earnings due to the immaterial effect to the Company’s financial statements and related disclosures.
(3) Acquisition
On July 26, 2016, a consortium of former Alpha creditors acquired Company common stock in exchange for a partial release of their creditor claims pursuant to the Alpha Restructuring. Furthermore, pursuant to an asset purchase agreement between Contura and Alpha, Contura purchased certain former core coal operations of Alpha as further described in Note 1. As consideration for the purchased assets, in addition to the assumption by Contura of certain liabilities and the credit release by former Alpha creditors, Contura delivered to Alpha the following consideration: (i) 10,000,000 shares of Contura common stock with a fair value of $44,644 (representing 100% of the issued and outstanding Contura common stock at that time), (ii) a promissory note with a face amount of $300,000 and fair value of $285,936 (the “Buyer Takeback Paper” or “Senior Secured First Lien Notes”), (iii) a promissory note with a face amount of $5,500 and fair value of $4,208 (the “GUC Distribution Note”) and warrants to acquire 810,811 shares of Contura common stock with a fair value of $1,167. Contura is accounting for the acquisition as a business combination.
Purchase Price
The purchase price of $335,955 consisted of the following:
Fair value of common stock issued
$
44,644

Issuance of 10% Senior Secured First Lien Notes (net of discount of $14,064)
285,936

Issuance of GUC Distribution Note (net of discount of $1,292)
4,208

Issuance of warrants
1,167

Purchase price
$
335,955


F-20
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Allocation of Purchase Price
The total purchase price has been allocated to the net tangible and intangible assets as follows:
 
Provisional
December 31, 2016 (2)
 
Adjustments (2)
 
Final (2)
Cash and cash equivalents
$
51,000

 
$
—

 
$
51,000

Trade accounts receivable
68,355

 
—

 
68,355

Inventories
43,705

 
—

 
43,705

Assets held for sale
2,178

 
—

 
2,178

Prepaid expenses and other current assets
36,493

 
(177
)
 
36,316

Property, plant, and equipment
348,407

 
—

 
348,407

Other acquired intangibles
149,000

 
—

 
149,000

Long-term restricted cash
92,800

 
—

 
92,800

Long-term deposits
94

 
—

 
94

Other non-current assets
3,688

 
4,417

 
8,105

Total assets
$
795,720

 
$
4,240

 
$
799,960

 
 
 
 
 
—

Current portion of long-term debt
$
1,112

 
$
—

 
$
1,112

Trade accounts payable
39,993

 
—

 
39,993

Acquisition-related obligations - current (1)
42,235

 
—

 
42,235

Accrued expenses and other current liabilities
42,905

 
(3,339
)
 
39,566

Long-term debt
11,720

 
—

 
11,720

Acquisition-related obligations - long-term (1)
59,092

 
—

 
59,092

Asset retirement obligations
196,487

 
—

 
196,487

Other non-current liabilities
58,502

 
6,568

 
65,070

Total liabilities
452,046

 
3,229

 
455,275

 
 
 
 
 
—

Bargain purchase gain
7,719

 
1,011

 
8,730

 
 
 
 
 
—

Allocation of purchase price
$
335,955

 
$
—

 
$
335,955

______________
(1)
See Note 14.
(2)
Includes the Company’s PRB operations being reported as discontinued operations in the Consolidated Financial Statements.

The Company finalized the purchase price allocation as of July 25, 2017.
Prior to the finalization of the purchase price allocation the Company recorded measurement-period adjustments to the provisional opening balance sheet related to property and income tax liabilities. As a result of the measurement-period adjustments made, the provisional amount of bargain purchase gain was increased by $1,011 resulting in a total bargain purchase gain of $8,730.
The following unaudited pro forma information has been prepared for illustrative purposes only and assumes the acquisition occurred on January 1, 2015. The unaudited pro forma results have been prepared based on estimates and assumptions, which the Company believes are reasonable; however, they are not necessarily indicative of the consolidated results of operations had the acquisition occurred on January 1, 2015, or of future results of operations.

F-21
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The unaudited pro forma results for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 :
 
Period from January 1, 2016 to July 25, 2016 (1)
 
Year Ended December 31, 2015 (1)
Total revenues
 
 
 
As reported
$
411,111

 
$
926,021

Pro forma
$
411,111

 
$
926,021

 
 
 
 
Net loss from continuing operations
 
 
 
As reported
$
(61,541
)
 
$
(257,786
)
Pro forma
$
(50,209
)
 
$
(257,160
)
______________
(1)
Excludes the Company’s PRB operations being reported as discontinued operations in the Consolidated Financial Statements.

(4) Discontinued Operation s
The discontinued operations include the Company’s former PRB segment. On December 8, 2017, the Company closed a transaction (“PRB Transaction”) to sell the Eagle Butte and Belle Ayr mines located in the PRB, which resulted in a loss on sale of $36,831 for the year ended December 31, 2017, primarily comprised of the transfer of property, plant and equipment, net, and inventories, net, of $139,388 and $4,991, respectively, the write-off of above-market coal sales contract assets of $9,684 and the assumption of $119,674 of asset retirement obligations by the Buyer. The asset retirement obligations consist of estimated costs to reclaim acreage disturbed at surface operations and related support acreage. The transfer of mining permits to the Buyer is estimated to be completed in the first half of 2018. If the permit transfer process is not completed as expected, it could have material, adverse effects on the Company. During the permit transfer period, the Company will maintain the required reclamation bonds and related collateral. Per the terms of the asset purchase agreement, as promptly as practicable after closing, the Buyer shall use its best efforts to replace the Company’s reclamation performance bonds and collateral bonds relating to the purchased permits. The Buyer shall use its best efforts to obtain third party financing to replace the Company’s collateral as promptly as practicable following the closing, and the Buyer shall be obligated to replace the Company’s collateral upon the earlier of (i) with respect to all Company’s bonds, receipt of the Buyer’s refinancing and (ii) with respect to each Company’s bond, within two days of notice from any governmental agency that the Buyer’s bonds are required to advance the permit transfer process. If at this time, the Company’s bonds remain outstanding, the full amount of the Company’s collateral shall be immediately due and payable to the Company by the Buyer, and such amount shall accrue interest at a rate of 6% per annum, compounding annually (the “Collateral Replacement Payment”). To secure the Buyer’s obligation to make the Collateral Replacement Payment, the Buyer grants the Company a security interest in all Purchased Assets that constitute mobile equipment, including without limitation, shovels, vehicles and drills, subject to certain exclusions. The Company will not bear the financial burden of further processing or posting of additional bonds or other collateral for any transfer of the permits. Once the permits have been transferred, the Company estimates approximately $24,000 comprised of short-term restricted cash and short-term deposits will be returned to operating cash.
In connection with the transaction, the Company paid cash consideration of $21,375 to the Buyer, in exchange for the assumption of certain liabilities by the Buyer and for professional fees to consummate the transaction. The Company expects to receive contingent consideration in the form of deferred royalty payments on coal mined from the properties sold to Buyer. The royalty payments will be comprised of monthly and annual overriding production royalty payments up to a maximum of $50,000, per terms of the agreement, with payments beginning in 2018. The monthly overriding production royalty payments begin in 2018 and are determined by multiplying the sales price of each ton of coal sold in a given month by the applicable royalty percentage, which ranges from 0.1% to 1.0% based on the selling price per ton, as outlined in the table below:

F-22
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Per ton coal price
Applicable Percentage
≤ $10.00
0.1%
> $10.00
0.2%
> $10.10
0.3%
> $10.20
0.4%
> $10.30
0.5%
> $10.40
0.6%
> $10.50
1.0%
The total monthly overriding production royalty payments are capped at $30,000. The annual overriding production royalty payment begins in January 2019 and ends in January 2029 in an amount equal to 10% of the number of tons of coal sold in the preceding calendar year multiplied by the excess, if any, of the weighted average applicable price per ton of such coal over the benchmark price for such preceding calendar year, subject to an aggregate cumulative cap of $20,000. The benchmark price with respect to the 2018 annual period is $11.00 per ton. The benchmark price for future years is determined by taking the previous year’s benchmark price and multiplying by one plus the percentage representing the annual average change in the Producer Price Index or PPI. The contingent royalty payments will be recognized as income in the period the payments are received within the All Other segment.
Per terms of the asset purchase agreement, the Company entered into an agreement with the Buyer under which the Buyer will supply, deliver and sell to the Company, and the Company will accept, purchase and pay for, all coal that the Company is obligated to supply, deliver and sell under PRB coal supply agreements (“CSAs”) existing as of the transaction closing date that did not transfer to the Buyer at closing (each, a “Back-to-Back Coal Supply Agreement”). Each Back-to-Back Coal Supply Agreement shall have economic terms identical to, but offsetting, the CSA associated with such Back-to-Back Coal Supply Agreement. If a PRB customer subsequently consents to assign a CSA after closing, then the related CSA shall immediately and automatically transfer to Buyer and the related Back-to-Back Coal Supply Agreements executed by the parties shall thereupon terminate as set forth therein.
The major components of net income (loss) from discontinued operations on the Consolidated Statements of Operations and the Predecessor Combined Statements of Operations are as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Revenues:
 

 
 
 
 
 

 
 

Total revenues
$
346,621

 
$
183,123

 
 
$
196,827

 
$
435,610

Costs and expenses:
 
 
 
 
 
 
 
 
Cost of coal sales (exclusive of items shown separately below)
$
311,119

 
$
140,803

 
 
$
164,920

 
$
375,234

Depreciation, depletion and amortization
$
30,090

 
$
38,005

 
 
$
19,303

 
$
52,918

Asset impairment and restructuring
$
—

 
$
—

 
 
$
659

 
$
261,274

Other non-major expense items, net
$
5,475

 
$
2,848

 
 
$
12,624

 
$
5,501

Loss on sale
$
36,831

 
$
—

 
 
$
—

 
$
—


F-23
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The major components of asset and liabilities that are classified as discontinued operations in the Consolidated Balance Sheets are as follows:
 
Successor
 
December 31, 2017
 
December 31, 2016
Assets:
 

 
 

Accounts Receivable
$
20,443

 
$
18,562

Inventories, net
$
—

 
$
5,707

Prepaid expenses and other current assets
$
18,974

 
$
3,006

Other current assets
$
1,081

 
$
—

Property, plant, and equipment, net
$
—

 
$
161,031

Other non-current assets
$
7,632

 
$
2,148

 
 
 
 
 
 
 
 
Liabilities:
 

 
 

Trade accounts payable, accrued expenses and other current liabilities
$
54,114

 
$
42,855

Other current liabilities
$
—

 
$
733

Asset retirement obligations
$
—

 
$
108,334

Other non-current liabilities
$
7,762

 
$
12,787

The major components of cash flows related to discontinued operations are as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Depreciation, depletion and amortization
$
30,090

 
$
38,005

 
 
$
19,303

 
$
52,918

Capital expenditures
$
(10,420
)
 
$
(11,123
)
 
 
$
(8,071
)
 
$
(14,839
)
Acquisition of mineral rights under federal lease
$
—

 
$
—

 
 
$
—

 
$
(42,130
)
Other significant operating non-cash items related to discontinued operations:
 
 
 
 
 
 
 
 
  Mark-to-market adjustments for derivatives
$
—

 
$
—

 
 
$
—

 
$
4,683

Accretion of asset retirement obligations
$
11,341

 
$
6,019

 
 
$
7,400

 
$
12,202

Asset impairment and restructuring
$
—

 
$
—

 
 
$
659

 
$
261,274

(5) Accumulated Other Comprehensive (Loss) Income
The following tables summarize the changes to accumulated other comprehensive income during the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016 , the period from January 1, 2016 to July 25, 2016 , and the year ended December 31, 2015:
 
Successor
 
Balance
January 1, 2017
 
Other comprehensive income (loss) before reclassifications
 
Amounts reclassified from accumulated other comprehensive income (loss)
 
Balance
December 31, 2017
Employee benefit costs
$
2,087

 
$
(3,832
)
 
$
(203
)
 
$
(1,948
)

F-24
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

 
Successor
 
Balance
July 26, 2016
 
Other comprehensive income (loss) before reclassifications
 
Amounts reclassified from accumulated other comprehensive income (loss)
 
Balance
December 31, 2016
Employee benefit costs
$
—

 
$
2,087

 
$
—

 
$
2,087

 
Predecessor
 
Balance
January 1, 2016
 
Other comprehensive income (loss) before reclassifications
 
Amounts reclassified from accumulated other comprehensive income (loss)
 
Balance
July 25, 2016
Employee benefit costs
$
4,135

 
$
(2,188
)
 
$
2,397

 
$
4,344

 
Predecessor
 
Balance
January 1, 2015
 
Other comprehensive income (loss) before reclassifications
 
Amounts reclassified from accumulated other comprehensive income (loss)
 
Balance
December 31, 2015
Employee benefit costs
$
5,730

 
$
(1,872
)
 
$
277

 
$
4,135

Cash flow hedges
(1,013
)
 
—

 
1,013

 
—

 
$
4,717


$
(1,872
)

$
1,290


$
4,135


F-25
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The following table summarizes the amounts reclassified from accumulated other comprehensive income (loss) and the Statements of Operations line items affected by the reclassification during the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016 , the period from January 1, 2016 to July 25, 2016 , and the year ended December 31, 2015:
 
Details about accumulated other comprehensive income (loss) components
Amounts reclassified from accumulated other comprehensive (loss) income
Affected line item in the Statements of Operations
 
Successor
 
 
Predecessor
 
Year Ended
December 31, 2017
 
Period from
July 26, 2016 to December 31, 2016
 
 
Period from
July 1, 2016 to
July 25, 2016
 
Year Ended December 31, 2015
 
 
Employee benefit costs:
 
 
 
 
 
 
 
 
 
 
Amortization of actuarial (gain) loss
$
(203
)
 
$
—

 
 
$
206

 
$
121

(1)  
 
Amortization of prior service cost
—

 
—

 
 
824

 
181

(1)  
 
Curtailment loss
—

 
—

 
 
2,712

 
—

(1)  
 
Total before income tax
(203
)
 
—

 
 
3,742

 
302

 
 
Income tax benefit (expense)
—

 
—

 
 
(1,345
)
 
(25
)
Income tax (expense) benefit
 
Total, net of income tax
$
(203
)
 
$
—

 
 
$
2,397

 
$
277

 
 
 
 
 
 
 
 
 
 
 
 
 
Cash flow hedges:
 
 
 
 
 
 
 
 
 
 
Commodity swaps - diesel fuel
$
—

 
$
—

 
 
$
—

 
$
1,455

Cost of coal sales
 
Total before income tax
—

 
—

 
 
—

 
1,455

 
 
Income tax expense
—

 
—

 
 
—

 
(442
)
Income tax (expense) benefit
 
Total, net of income tax
$
—

 
$
—

 
 
$
—

 
$
1,013

 
______________
(1)
These accumulated other comprehensive income (loss) components are included in the computation of net periodic benefit costs for black lung. See Note 20.

(6) Earnings (Loss) Per Share
The number of shares used to calculate basic earnings per common share is based on the weighted average number of the Company’s outstanding common shares during the respective period. The number of shares used to calculate diluted earnings per common share is based on the number of common shares used to calculate basic earnings per share plus the dilutive effect of stock options and other stock-based instruments held by the Company’s employees and directors during the period, and the Company’s outstanding Series A warrants. The warrants become dilutive for earnings per common share calculations when the market price of the Company’s common stock exceeds the exercise price. For the year ended December 31, 2017 , 129,520 stock options and 108,657 other stock-based instruments were excluded from the computation of dilutive earnings per share because they would have been anti-dilutive. These potential shares could dilute earnings per share in the future. For the period from July 26, 2016 to December 31, 2016, 248,784 stock options, 11,701 restricted stock units and 69,651 Series A warrants were excluded from the computation of dilutive earnings per share because they would have been anti-dilutive. In periods of net loss, the number of shares used to calculate diluted earnings per share is the same as basic earnings per share.

F-26
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The following table presents the net income (loss) per common share for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 :
 
Successor
 
Year Ended December 31, 2017
 
Period from
July 26, 2016 to
December 31, 2016
Net income (loss)
 
 
 
Income (loss) from continuing operations
$
173,735

 
$
(11,846
)
(Loss) income from discontinued operations
(19,213
)
 
916

Net income (loss)
$
154,522

 
$
(10,930
)
 
 
 
 
Basic
 
 
 
Weighted average common shares outstanding - basic
10,216,464

 
10,309,310

 
 
 
 
   Basic income (loss) per common share:
 
 
 
  Income (loss) from continuing operations
$
17.01

 
$
(1.15
)
(Loss) income from discontinued operations
(1.89
)
 
0.09

  Net income (loss)
$
15.12

 
$
(1.06
)
 
 
 
 
Diluted
 
 
 
Weighted average common shares outstanding - basic
10,216,464

 
10,309,310

Diluted effect of warrants
170,178

 
—

Diluted effect of stock options
274,456

 
—

Diluted effect of restricted share units and restricted stock shares
108,907

 
—

Weighted average common shares outstanding - diluted
10,770,005

 
10,309,310

 
 
 
 
   Diluted income (loss) per common share:
 
 
 
   Income (loss) from continuing operations
$
16.13

 
$
(1.15
)
(Loss) income from discontinued operations
(1.78
)
 
0.09

   Net income (loss)
$
14.35

 
$
(1.06
)
(7) Inventories, net
Inventories, net consisted of the following: 
 
Successor
 
December 31,
2017
 
December 31,
2016
Raw coal
$
7,003

 
$
5,055

Saleable coal
55,357

 
58,056

Materials, supplies and other, net
7,201

 
6,581

Total inventories, net
$
69,561

 
$
69,692


F-27
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

(8) Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets consisted of the following:
 
Successor
 
December 31,
2017
 
December 31,
2016
Prepaid freight
$
9,374

 
$
9,065

Deferred longwall move expenses
13,062

 
5,264

Other non-trade receivables
591

 
4,146

Prepaid insurance
2,401

 
2,018

Prepaid property tax
2,240

 
2,804

Refundable income taxes
21,175

 
1,305

Prepaid bond premium
1,142

 
762

Other prepaid expenses
9,708

 
9,119

Total prepaid expenses and other current assets
$
59,693

 
$
34,483

(9) Property, Plant, and Equipment, Net
Property, plant, and equipment, net consisted of the following: 
 
Successor
 
December 31,
2017
 
December 31,
2016
Plant and mining equipment
$
153,951

 
$
100,945

Owned and leased mineral rights (1)
23,139

 
23,904

Mine development
19,460

 
1,035

Land
10,252

 
9,258

Office equipment, software and other
483

 
420

Construction in progress
35,749

 
33,948

Total property, plant, and equipment
243,034

 
169,510

Less accumulated depreciation, depletion and amortization
46,455

 
13,528

Total property, plant, and equipment, net
$
196,579

 
$
155,982

______________
(1)  
Amounts primarily relate to asset retirement obligation assets associated with active mining operations.

Included in plant and mining equipment are assets under capital leases totaling $740 and $586 with accumulated depreciation of $317 and $86 as of December 31, 2017 and December 31, 2016, respectively.
Depreciation, depletion and amortization expense associated with property, plant and equipment, net was $34,910, $5,973, $66,076, $149,196 for the year ended December 31, 2017, the period from July 26, 2016 to December 31, 2016, for the period January 1, 2016 to July 25, 2016 and for the year ended December 31, 2015, respectively. Depreciation expense for the year ended December 31, 2017, for the period from July 26, 2016 to December 31, 2016 and the year ended December 31, 2015 includes credits of ($1,719) and ($7,656) and an expense of $2,089, respectively, related to revisions to asset retirement obligations. See Note 15 for further disclosures related to asset retirement obligations.
(10) Asset Impairment and Restructuring
A long-lived asset group that is held and used is reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of the long-lived asset or asset group might not be recoverable. As a result of a longer than

F-28
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

expected recovery in the met coal markets and lower production and shipment levels compared with previous estimates and announcements made regarding plans to curtail certain coal mining operations, the Company determined that indicators of impairment with respect to certain of its long-lived assets or asset groups existed during the year ended December 31, 2015.
The Company performed a long-lived asset impairment test as of December 31, 2015 and determined that the undiscounted cash flows were less than the carrying value for certain asset groups. For the year ended December 31, 2015, the Company recorded $296,154 in impairment charges, of which $72,012 was recorded for asset groups in Central Appalachia Operations (“CAPP”), $224,139 was recorded for asset groups in Northern Appalachia Operations (“NAPP”), and $3 was recorded on asset groups in Trading and Logistics Operations.
For the period ended July 25, 2016 and the year ended December 31, 2015, the Company recorded severance expenses and other restructuring-related charges of $955 and $1,209, respectively. Of these amounts, $600 and $1,550 were recorded on CAPP and $334 and ($458) were recorded on NAPP for period ended July 25, 2016 and the year ended December 31, 2015, respectively.
For the period ended July 25, 2016, the Company recorded losses related to non-core property divestitures of $1,067 and $1,074 on CAPP and NAPP, respectively. For the year ended December 31, 2015, the Company recorded losses related to non-core property divestitures of $62, of which $21 and $39 related to CAPP and NAPP, respectively.
There were no asset impairments or restructuring charges during the year ended December 31, 2017 or the period from July 26, 2016 to December 31, 2016.
(11) Dividend Paid and Tender Off er
The Company entered into the First Amendment to the Asset-Based Revolving Credit Agreement on June 9, 2017 and the First Amendment to Term Loan Credit Agreement on June 13, 2017. The amendments, among other things, permit an aggregate amount of $150,000 of cash to be used for the (i) payment of a one-time cash dividend on its common stock no later than July 28, 2017, and (ii) repurchase of its common stock at any time no later than December 31, 2017, subject to certain terms and conditions. See Note 13.
On June 16, 2017, the Company declared a special cash distribution (the “Special Dividend”) in the amount of $100,735, equal to $8.997 per share. The Special Dividend was comprised of approximately $92,786, payable to eligible holders of record of its common stock as of the close of business on July 5, 2017, the record date, and pursuant to the terms of the Company’s Management Incentive Plan, dividend equivalent payments of approximately $7,949 in the aggregate (including the amounts payable with respect to each share underlying outstanding stock option awards and restricted stock unit awards and outstanding restricted common stock under the Management Incentive Plan) were paid to plan participants. The $92,786 portion of the dividend was paid on July 12, 2017, which reduced the Company’s retained earnings by $73,603 and additional paid-in capital by $19,183. The dividend equivalent payments were made on July 11, 2017, which reduced the Company’s additional paid-in capital by $7,949. Pursuant to terms of the debt amendments, the Company made an offer to all Term Loan Credit Facility lenders to repay the loans at par concurrently with the payment of the Special Dividend, in an aggregate principal amount equal to $10,000. All the Term Loan Facility lenders accepted the offer, and the Company repaid $10,000 on July 13, 2017.
On September 26, 2017, the Company announced that it had commenced a modified “Dutch Auction” tender offer to repurchase up to $31,800 of common stock. On December 21, 2017, Contura repurchased an aggregate of 530,000 shares of common stock at a purchase price of $60.00 per share. The total repurchase price of $32,595 (comprised of $31,800 of share repurchases and $795 of related fees) was recorded as treasury stock in the Consolidated Balance Sheet. Upon completion of the tender offer, provisions within the Company’s Term Loan Credit Facility and Asset-Based Revolving Credit Agreement limited the ability of the Company to make future repurchases of its common stock.

F-29
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

(12) Accrued Expenses and Other Current Liabilities
Accrued expenses and other current liabilities consisted of the following: 
 
Successor
 
December 31,
2017
 
December 31,
2016
Wages and benefits
$
35,988

 
$
28,676

Taxes other than income taxes
3,478

 
4,887

Income taxes
—

 
201

Current portion of asset retirement obligations
6,771

 
4,298

Freight accrual
2,109

 
3,006

Interest payable
219

 
13,574

Deferred revenue
200

 
3,780

Other
10,006

 
6,957

Total accrued expenses and other current liabilities
$
58,771

 
$
65,379

(13) Long-Term Debt
Long-term debt consisted of the following: 
 
Successor
 
December 31, 2017
 
December 31, 2016
Term Loan Credit Facility - due March 2024
$
387,000

 
$
—

Term Facility - due July 2020
—

 
42,500

LC Facility
—

 
—

Closing Tranche Term Loan - due January 2018
—

 
8,500

GUC Distribution Note - due January 2018
—

 
5,500

10% Senior Secured First Lien Notes - due August 2021
—

 
300,000

Other
3,768

 
4,857

Debt discount and issuance costs
(18,065
)
 
(14,363
)
Total long-term debt
372,703

 
346,994

Less current portion
(10,730
)
 
(1,591
)
Long-term debt, net of current portion
$
361,973

 
$
345,403

Term Loan Credit Facility
On March 17, 2017, the Company entered into a Credit Agreement with Jefferies Finance LLC, as administrative agent and collateral agent, and the other lenders party thereto (as defined therein) that provides for a term loan facility (the “Term Loan Credit Facility”) in an aggregate amount of $400,000 with a maturity date of March 17, 2024. Principal repayments equal to $1,000 are due each March, June, September and December (commencing with June 30, 2017) with the final principal repayment installment repaid on the maturity date and in any event shall be in an amount equal to the aggregate principal amount outstanding on such date. The Term Loan Credit Facility bears an interest rate per annum based on the character of the loan (defined as either “Base Rate Loan” or “Eurocurrency Rate Loan”) plus an applicable rate of 4.00% to 5.00% depending on loan type (the “Applicable Rate”), payable bi-monthly in arrears. As of December 31, 2017 , the Term Loan Credit Facility was classified as a Eurocurrency Rate Loan with an interest rate of 6.63%, calculated as the eurocurrency rate during the period plus an applicable rate of 5.00%.

F-30
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

In connection with entering the Credit Agreement, the Company paid all of its $300,000 outstanding 10.00% Senior Secured First Lien Notes due 2021. The proceeds of the Term Loan Credit Facility were also used to repay the $42,500 outstanding Term Facility due 2020, the $8,500 outstanding Closing Tranche Term Loan due 2018 and the $5,500 outstanding GUC Distribution Note due 2018. The Company recorded a loss on early extinguishment of debt of $38,701, primarily related to a prepayment premium on the 10.00% Senior Secured First Lien Notes and the write-off of outstanding debt discounts on the 10.00% Senior Secured First Lien Notes and GUC Distribution Note.
The Company entered into the First Amendment to the Term Loan Credit Agreement on June 13, 2017. The amendment, among other things, permitted an aggregate amount of $150,000 of cash to be used for the (i) payment of a one-time cash dividend on its common stock no later than July 28, 2017, and (ii) repurchase of its common stock at any time no later than December 31, 2017, subject to certain terms and conditions. Pursuant to terms of the amendment, the Company made an offer to all Term Loan Credit Facility lenders to repay the loans at par concurrently with the payment of the Special Dividend, in an aggregate principal amount equal to $10,000. All the Term Loan Facility lenders accepted the offer, and the Company repaid $10,000 on July 13, 2017.
The Term Loan Credit Facility, as amended, and related documents contain negative and affirmative covenants including certain financial covenants. The Company was in compliance with all covenants under these agreements as of December 31, 2017 . For the fiscal year ending December 31, 2017, the Company had Excess Cash Flow as calculated per terms of the Term Loan Credit Facility, as amended, and will therefore prepay $3,323 of the Term Loan Credit Facility outstanding principal balance no later than 130 days after the end of the December 31, 2017 fiscal year.
All obligations under the Term Loan Credit Facility are unconditionally guaranteed by the Company’s existing wholly owned domestic subsidiaries, and are required to be guaranteed by the Company’s future wholly owned domestic subsidiaries. Certain obligations under the Term Loan Credit Facility are secured by a senior lien, subject to certain exceptions (including the ABL Priority Collateral described below), by substantially all of our assets and the assets of our subsidiary guarantors (“Term Loan Priority Collateral”), in each case subject to exceptions. The obligations under the Term Loan Credit Facility are also secured by a junior lien, again subject to certain exceptions, against the ABL Priority Collateral.
Asset-Based Revolving Credit Agreement
On April 3, 2017, the Company entered into an Asset-Based Revolving Credit Agreement with Citibank N.A. as administrative agent, collateral agent, and swingline lender and the other lenders party thereto (the “Lenders”), and Citibank N.A., BMO Harris Bank N.A. and Credit Suisse AG as letter of credit issuers (“LC Lenders”). The Asset-Based Revolving Credit Agreement includes a senior secured asset-based revolving credit facility (the “ABL Facility”). Under the ABL Facility, the Company may borrow cash from the Lender or cause the LC Lenders to issue letters of credit, on a revolving basis, in an aggregate amount of up to $125,000, of which no more than $80,000 may be drawn through letters of credit. Any borrowings under the ABL Facility will have a maturity date of April 4, 2022 and will bear interest based on the character of the loan (defined as either “Base Rate Loan” or “Eurocurrency Rate Loan”) plus an applicable rate ranging from 1.00% to 1.50% for Base Rate Loans and 2.00% to 2.50% for Eurocurrency Rate Loans, depending on the amount of credit available. Any letters of credit issued under the ABL Facility will bear a commitment fee rate ranging from 0.25% to 0.375% depending on the amount of availability per terms of the agreement, and a 0.25% fronting fee payable to the ABL Facility’s administrative agent. The Asset-Based Revolving Credit Agreement provides that a specified percentage of billed, unbilled and approved foreign receivables and raw and clean inventory meeting certain criteria are eligible to be counted for purposes of collateralizing the amount of financing available, subject to certain terms and conditions. As of December 31, 2017 , the Company had $0 borrowings and $11,300 letters of credit outstanding under the ABL Facility.
The Company entered into the First Amendment to the Asset-Based Revolving Credit Agreement on June 9, 2017. The amendment, among other things, permitted an aggregate amount of $150,000 of cash to be used for the (i) payment of a one-time cash dividend on its common stock no later than July 28, 2017, and (ii) repurchase of its common stock at any time no later than December 31, 2017, subject to certain terms and conditions.
The Asset-Based Revolving Credit Agreement, as amended, and related documents contain negative and affirmative covenants including certain financial covenants. The Company was in compliance with all covenants under these agreements as of December 31, 2017 .

F-31
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The obligations under the ABL Facility are secured by a senior lien, subject to certain exceptions by collateral generally described as receivables, inventory, as-extracted collateral and deposit accounts (“ABL Priority Collateral”). The obligations under the ABL Facility are also secured by a junior lien, again subject to certain exceptions, against the Term Loan Priority Collateral.
Capital Leases
The Company entered into capital leases for certain property and other equipment during 2017 and 2016. The Company’s liability for capital leases totaled $426 and $578, with $226 and $275 reported within the current portion of long-term debt as of December 31, 2017 and December 31, 2016, respectively.
Future Maturities
Future maturities of long-term debt as of December 31, 2017 are as follows: 
2018
$
10,730

2019
4,308

2020
4,033

2021
4,020

2022
4,000

Thereafter (1)
363,677

Total long-term debt
$
390,768

______________
( 1)
Includes principal payments on the Term Loan Credit Facility of $4,000 and $359,677 for the year ended December 31, 2023 and December 31, 2024, respectively.

(14) Acquisition-Related Obligations
Acquisition-related obligations consisted of the following:
 
Successor
 
December 31, 2017
 
December 31, 2016
Retiree Committee VEBA Funding Settlement Liability
$
7,000

 
$
10,000

UMWA Funds Settlement Liability
7,000

 
7,500

UMWA VEBA Funding Settlement Liability
—

 
9,300

UMWA Contingent VEBA Funding Note 1
—

 
8,750

UMWA Contingent VEBA Funding Note 2
—

 
8,750

Reclamation Funding Liability
32,000

 
42,000

Contingent Reclamation Funding Liability (1)
—

 
20,370

Contingent Credit Support Commitment (1)
—

 
4,567

Other
580

 
2,261

Discount
(11,168
)
 
(27,152
)
Total acquisition-related obligations - long-term
35,412

 
86,346

Less current portion
(15,080
)
 
(27,258
)
Acquisition-related obligations, net of current portion
$
20,332

 
$
59,088

______________
(1)
Measured using the fair value option. See Note 17 for further disclosures on fair value.


F-32
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The Company entered into various settlement agreements with Alpha and/or the Alpha bankruptcy successor ANR, Inc. (“ANR”) and third parties as part of the Alpha bankruptcy reorganization process. The Company assumed acquisition-related obligations through those settlement agreements which became effective on July 26, 2016, the effective date of Alpha’s plan of reorganization.
Contingent Credit Support Commitment & Contingent Funding of Restricted Cash Reclamation
On October 23, 2017, ANR completed a transaction with Lexington Coal Company (“LCC”), which included the transfer by ANR to LCC of certain idle and non-active assets and other real and personal properties located in Kentucky, Tennessee and West Virginia. According to the terms of the transaction, the Company was released from the Contingent Credit Support Commitment and Contingent Reclamation Funding Liability obligations. As a result the Company recorded a gain of $28,158 related to the extinguishment of its carrying value of these obligations, which is recorded as other operating income in the Consolidated Statement of Operations for the year ending December 31, 2017 .
UMWA Contingent VEBA Funding Notes 
Pursuant to the UMWA VEBA Funding Settlement agreement entered into on July 5, 2016, if federal legislation providing retirement healthcare benefits to the UMWA Retirees had not been enacted or if monies under the legislation had not become available for the benefits before August 1, 2017, on August 1, 2017, the Company would have been required to issue to the VEBA a 7-year 5.00% unsecured note (“UMWA Contingent VEBA Funding Note 1”) with a face value of $8,750. If federal legislation providing retirement healthcare benefits to the UMWA Retirees had not been enacted or if moneys under the legislation had not become available for the benefits before December 1, 2017, on December 1, 2017, the Company would also have been required to issue to the VEBA a 7-year 5.00% unsecured note (“UMWA Contingent VEBA Funding Note 2”) with a face value of $8,750. On May 5, 2017, federal legislation was passed in an omnibus spending bill which provided funding for retiree healthcare for UMWA Retirees. The Company eliminated all of its remaining carrying value of the UMWA Contingent VEBA Funding Notes 1 and Note 2 of $4,548 and $4,498, respectively, and recorded a gain on settlement of $9,046 which was classified as other operating income in the Consolidated Statement of Operations during the year ended December 31, 2017 .
(15) Asset Retirement Obligations
The following table summarizes the changes in asset retirement obligations for the year ended December 31, 2017 :
Predecessor
 
Total asset retirement obligations at December 31, 2015
$
47,598

Accretion for the period
5,005

Asset sales
(53
)
Revisions in estimated cash flows
(22
)
Expenditures for the period
(2,126
)
Total asset retirement obligations at July 25, 2016
$
50,402

 
 
Successor
 
Total asset retirement obligations at July 26, 2016
$
89,474

Accretion for the period
4,800

Revisions in estimated cash flows (1)
(10,698
)
Expenditures for the period
(514
)
Total asset retirement obligations at December 31, 2016
$
83,062

Accretion for the period
9,934

Sites added during the period
356

Revisions in estimated cash flows (2)
(4,419
)

F-33
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Expenditures for the period
(2,567
)
Reclassification to liabilities held for sale (3)
(27,161
)
Total asset retirement obligations at December 31, 2017
$
59,205

Less current portion
(6,771
)
Long-term portion
$
52,434

______________
(1)
This amount includes a reduction of approximately ($7,600), primarily related to revisions in estimated stream restoration costs within NAPP, which was recorded as a reduction to depreciation, depletion, and amortization in the Statements of Operations for the period from July 26, 2016 to December 31, 2016.
(2)
The revisions in estimated cash flows were primarily comprised of ($6,360) in mine life extensions within NAPP and added reserves within CAPP (of which approximately ($1,700) was recorded to depreciation, depletion, and amortization), offset by $2,744 in discount rate adjustments.
(3)
See Note 2 for further information on liabilities held for sale.

(16) Other Non-Current Liabilities
Other non-current liabilities consisted of the following: 
 
Successor
 
December 31,
2017
 
December 31,
2016
Warrants (1)
$
—

 
$
35,141

Workers’ compensation obligations
23,619

 
17,008

Black lung obligations
18,039

 
13,386

Life insurance benefits
11,806

 
11,687

Taxes other than income taxes
—

 
5,588

Other
5,812

 
3,731

Total other non-current liabilities
$
59,276

 
$
86,541

______________
(1)
See Note 18.
(17) Fair Value of Financial Instruments and Fair Value Measurements
The estimated fair values of financial instruments are determined based on relevant market information. These estimates involve uncertainty and cannot be determined with precision.
The carrying amounts for cash and cash equivalents, trade accounts receivable, net, prepaid expenses and other current assets, long-term restricted cash, long-term deposits, trade accounts payable, and accrued expenses and other current liabilities approximate fair value as of December 31, 2017 and December 31, 2016 due to the short maturity of these instruments.

F-34
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The following tables set forth by level, within the fair value hierarchy, the Company’s long-term debt at fair value as of  December 31, 2017 and December 31, 2016:
 
Successor
 
December 31, 2017
 
Carrying
    Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Term Loan Credit Facility - due March 2024
$
368,935

 
$
363,401

 
$
363,401

 
$
—

 
$
—

 
Successor
 
December 31, 2016
 
Carrying
    Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Term Facility - due July 2020
$
42,164

 
$
42,164

 
$
—

 
$
42,164

 
$
—

Closing Tranche Term Loan - due January 2018
8,500

 
8,500

 
—

 
—

 
8,500

GUC Distribution Note - due January 2018
4,546

 
4,967

 
—

 
—

 
4,967

10% Senior Secured First Lien Notes - due August 2021
286,927

 
320,625

 
320,625

 
—

 
—

Total long-term debt
$
342,137

 
$
376,256

 
$
320,625

 
$
42,164

 
$
13,467

_ _____________
(1)  
Net of debt discounts and debt issuance costs.

The following tables set forth by level, within the fair value hierarchy, the Company’s acquisition-related obligations at fair value as of December 31, 2017 and December 31, 2016:
 
Successor
 
December 31, 2017
 
Carrying
    Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Retiree Committee VEBA Funding
Settlement Liability
$
6,290

 
$
6,692

 
$
—

 
$
—

 
$
6,692

UMWA Funds Settlement Liability
4,366

 
5,654

 
—

 
—

 
5,654

Reclamation Funding Liability
24,176

 
28,365

 
—

 
—

 
28,365

Total acquisition-related obligations
$
34,832

 
$
40,711

 
$
—

 
$
—

 
$
40,711


F-35
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

 
Successor
 
December 31, 2016
 
Carrying
    Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Retiree Committee VEBA Funding Settlement Liability
$
8,260

 
$
8,937

 
$
—

 
$
—

 
$
8,937

UMWA Funds Settlement Liability
4,050

 
5,100

 
—

 
—

 
5,100

UMWA VEBA Funding Settlement Liability
9,037

 
9,156

 
—

 
—

 
9,156

UMWA Contingent VEBA Funding Note 1
4,307

 
5,381

 
—

 
—

 
5,381

UMWA Contingent VEBA Funding Note 2
4,270

 
5,206

 
—

 
—

 
5,206

Reclamation Funding Liability
29,223

 
33,549

 
—

 
—

 
33,549

Total acquisition-related obligations
$
59,147

 
$
67,329

 
$
—

 
$
—

 
$
67,329

______________
(1)
Net of discounts.

The Company held no financial and non-financial assets and liabilities that were accounted for at fair value on a recurring basis as of December 31, 2017. The following table sets forth by level, within the fair value hierarchy, the Company’s financial and non-financial assets and liabilities that were accounted for at fair value on a recurring basis as of December 31, 2016. Financial and non-financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The Company’s assessment of the significance of a particular input to the fair value measurement requires judgment, and may affect the determination of fair value for assets and liabilities and their placement within the fair value hierarchy levels.
 
Successor
 
December 31, 2016 (3)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Warrants (1)
$
35,141

 
$
—

 
$
—

 
$
35,141

Contingent Credit Support Commitment (2)
$
4,567

 
$
—

 
$
—

 
$
4,567

Contingent Reclamation Funding Liability (2)
$
20,370

 
$
—

 
$
—

 
$
20,370

______________
(1)
See Note 18.
(2)
See Note 14 for further disclosures on these acquisition-related obligations and their mark-to-market effect on earnings.
(3)
Balances were $0 as of December 31, 2017.

The following table is a reconciliation of the financial and non-financial assets and liabilities that were accounted for at fair value on a recurring basis and that were categorized within Level 3 of the fair value hierarchy:
 
Successor
 
December 31, 2016 Balance
 
Loss Recognized in Earnings
 
Gain Recognized on Settlement
 
Transfer in (out) of Level 3 fair value hierarchy
 
December 31, 2017 Balance
Contingent Credit Support Commitment
$
4,567

 
$
686

 
$
(5,253
)
 
$
—

 
$
—

Contingent Reclamation Funding Liability
$
20,370

 
$
2,536

 
$
(22,906
)
 
$
—

 
$
—


F-36
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

 
Successor
 
July 26, 2016 Balance
 
Purchases/ Additions
 
Loss (Gain) Recognized in Earnings
 
Transfer in (out) of Level 3 fair value hierarchy
 
December 31, 2016 Balance
Warrants (1)
$
—

 
$
1,166

 
$
33,975

 
$
—

 
$
35,141

Contingent Credit Support Commitment
$
—

 
$
21,953

 
$
(17,386
)
 
$
—

 
$
4,567

Contingent Reclamation Funding Liability
$
—

 
$
13,600

 
$
6,770

 
$
—

 
$
20,370

______________
(1)
See Note 18.

For the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 the Company fair valued assets and liabilities on a non-recurring basis in connection with acquisition accounting (see Note 3). 
The following methods and assumptions were used to estimate the fair values of the assets and liabilities in the tables above.
Level 1 Fair Value Measurements
Term Loan Credit Facility - due March 2024 - The fair value is based on observable market data.
10% Senior Secured First Lien Notes - due August 2021 - The fair value was based on observable market data.
Level 2 Fair Value Measurements
Term Facility - due July 2020 - The Company believes the carrying value of this obligation was a reasonable estimate of fair value as these obligations were repaid at face value without any premium or discount subsequent to December 31, 2016.
Level 3 Fair Value Measurements
Closing Tranche Term Loan - due January 2018 - The Company believes the carrying value of this obligation was a reasonable estimate of fair value as these obligations were repaid at face value without any premium or discount subsequent to December 31, 2016.
GUC Distribution Note - due January 2018, Retiree Committee VEBA Funding Settlement Liability, UMWA Funds Settlement Liability, VEBA Funding Settlement Liability, UMWA Contingent VEBA Funding Note 1, UMWA Contingent VEBA Funding Note 2 and Reclamation Funding Liability - Observable transactions are not available to aid in determining the fair value of these items. Therefore, the fair value was derived by using the expected present value approach in which estimated cash flows are discounted using a risk-free interest rate adjusted for market risk.
Contingent Credit Support Commitment - Observable transactions are not available to aid in determining the fair value of this commitment. The fair value of the Contingent Credit Support Commitment was derived by using the present value of the Company’s estimated obligation to provide ANR with revolving credit support, discounted using the Company’s credit-adjusted risk-free borrowing rate. The Company’s estimated obligation to provide ANR with revolving credit support was derived based on a probability-weighted analysis of scenarios developed from ANR’s projected cash flows. The present value of the Company’s estimated obligation is calculated net of present value of the anticipated ANR repayments, discounted using an estimate of ANR’s weighted average cost of capital.
Contingent Reclamation Funding Liability - Observable transactions are not available to aid in determining the fair value of this obligation. The fair value of the Contingent Reclamation Funding Liability was derived by aggregating the present value of the Company’s estimated cash flow payments into the various Restricted Cash Reclamation Accounts, using the Company’s credit-adjusted risk free rate. The Company’s estimated cash flow payments were reduced by the present value of the expected ANR cash flow payments into the various Restricted Cash Reclamation Accounts, discounted at an estimate of ANR’s weighted average cost of capital.

F-37
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Warrants - The fair value of the warrants liability was estimated using a Black-Scholes pricing model and was marked to market at each reporting period with changes in value reflected in earnings. The inputs included in the Black-Scholes pricing model were the Company’s OTC market price, the stated exercise price, the remaining time to maturity, the annual risk-free interest rate based on the U.S. Constant Maturity Curve and annualized volatility. The annualized volatility was calculated by observing volatilities for comparable companies with adjustments for the Company’s size and leverage.
Acquisition accounting - The Company accounts for business combinations under the acquisition method of accounting. The total cost of acquisitions is allocated to the underlying identifiable net tangible and intangible assets based on their respective estimated fair values. Determining the fair value of assets acquired and liabilities assumed requires management’s judgment, the utilization of independent valuation experts and often involves the use of significant estimates and assumptions with respect to the timing and amounts of future cash inflows and outflows, discount rates, market prices and asset lives, among other items.
(18) Derivative Financial Instruments
Swap Agreements
The Company uses diesel fuel in its production processes and incurs significant expenses for its purchases. Diesel fuel expenses represented approximately 1%, 1%, 1%, and 2% of cost of coal sales for the year ended December 31, 2017 , the period July 26, 2016 to December 31, 2016, the period January 1, 2016 to July 25, 2016, and for the year ended December 31, 2015. The Company is subject to the risk of price volatility for this commodity and as a part of its risk management strategy, the Company had formerly entered into swap agreements with financial institutions to mitigate the risk of price volatility for diesel fuel. The terms of the swap agreements allowed the Company to pay a fixed price and receive a floating price, which provided a fixed price per unit for the volume of purchases being hedged. All existing swap agreements were terminated in August 2015 due to Alpha’s bankruptcy filing. All cash flows associated with derivative instruments are classified as operating cash flows in the Statements of Cash Flows for the year ended December 31, 2015. 
Warrants
On July 26, 2016 (the “Initial Issue Date”), the Company issued 810,811 warrants, each with an initial exercise price of $55.93 per share of common stock and exercisable for one share of the Company’s common stock, par value $0.01 per share. The warrants are exercisable for cash or on a cashless basis at any time from the Initial Issue Date until July 26, 2023. For the period from July 26, 2016 to December 31, 2016, the warrants were classified within non-current liabilities in our Consolidated Balance Sheet as a derivative liability and were initially and subsequently marked-to-market with changes in value reflected in earnings.
The fair value of the warrant liability for the period from July 26, 2016 to December 31, 2016 was estimated using a Black-Scholes pricing model, with changes in value reflected in earnings. The inputs included in the Black-Scholes pricing model used in the valuation of the warrants included the Company stock price, the stated exercise price, the expected term, the annual risk-free rate based on the U.S. Constant Maturity Curve, and annualized equity volatility. The annualized volatility was calculated by observing volatilities for comparable companies with adjustment for size and leverage. The annualized volatility as of December 31, 2016 decreased relative to the annualized volatility used as of the Acquisition Date due to improvement in the Company’s leverage ratio. However, due to significant increases in the Company’s stock price as of December 31, 2016 the Company recognized a cumulative mark-to-market loss on the derivative liability of approximately $33,975 recorded in other expenses within costs and expenses in the Consolidated Statements of Operations for the period from July 26, 2016 to December 31, 2016. As of December 31, 2016, the warrants derivative liability balance was approximately $35,141 classified within non-current liabilities in our Consolidated Balance Sheet.
During July of 2017, the FASB issued ASU 2017-11, which provided updates for Accounting for Certain Financial Instruments with Down Round features. Pursuant to ASU 2017-11, the Company’s warrants are considered equity instruments, eliminating the derivative liability treatment and the mark-to-market adjustment requirements. The Company early adopted ASU 2017-11 during 2017, with retrospective adjustments to the Consolidated Balance Sheet through an adjustment of approximately $33,975 to retained earnings as of the beginning of the current fiscal year for all prior period mark-to-market adjustments and adjustments to the Consolidated Statement of Operations through the reversal of all year-to-

F-38
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

date mark-to-market adjustments. Pursuant to the adoption of ASU 2017-11, as of December 31, 2017 , the Company’s warrants valued at approximately $1,154 are classified within additional paid-in capital in the Consolidated Balance Sheet.
Pursuant to the Warrants Agreement dated as of July 26, 2016, the exercise price and the warrant share number were adjusted as a result of the occurrence of the Special Dividend. The warrant share number was adjusted from 1.00 to 1.15, and the exercise price was adjusted from $55.93 per share to $48.741 per share as of the July 5, 2017 record date.
As of December 31, 2017 , of the 810,811 warrants that were originally issued, 801,983 remain outstanding, with a total of 922,280 shares underlying the un-exercised warrants. For the year ended December 31, 2017 , 6,590 warrants were exercised with the respective holder paying the exercise price with cash resulting in 6,989 shares of common stock being issued, and an additional 2,238 warrants were exercised by the net share settlement feature provided by the warrant agreement, resulting in 855 additional shares of common stock being issued and outstanding and 1,704 shares being classified as treasury stock.
The following tables present the fair values and location of the Company’s derivative instruments within the Balance Sheets:
 
 
 
 
Liability Derivatives
 
 
 
 
Successor
Derivatives not designated as
cash flow hedging instruments
 
Statement of Financial Position Location
 
December 31,
 2017
 
December 31,
 2016
Warrants
 
Other non-current liabilities
 
$
—

 
$
35,141

The following tables present the gains and losses from derivative instruments for the year ended December 31, 2017, the period from July 26, 2016 to December 31, 2016, the period January 1, 2016 to July 25, 2016, and for the year ended December 31, 2015, and their location within the Financial Statements:
Loss reclassified from accumulated other comprehensive income (loss) to earnings
 
 
Successor
 
 
Predecessor
Derivatives designated as
cash flow hedging instruments
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to
December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Commodity swaps (1) (2)
 
$
—

 
$
—

 
 
$
—

 
$
(1,013
)
______________
(1)
Amounts included in Discontinued Operations in the Statements of Operations.
(2)
Net of tax.

The following table presents the gains and losses from derivative instruments for the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016, the period January 1, 2016 to July 25, 2016, and for the year ended December 31, 2015, and their location within the Financial Statements:
Gain (loss) recorded in earnings
 
 
Successor
 
 
Predecessor
Derivatives not designated as
cash flow hedging instruments
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to
December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Commodity swaps (1)
 
$
—

 
$
—

 
 
$
—

 
$
3,081

Warrants (2)
 
—

 
(33,975
)
 
 
—

 
—

Total
 
$
—

 
$
(33,975
)
 
 
$
—

 
$
3,081

______________
(1)
Amounts are recorded in other expenses within costs and expenses in the Statements of Operations.
(2)
Amount is recorded as a component of other (expense) income in the Statement of Operations.


F-39
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

(19) Income Taxes
In the Predecessor periods, the Predecessor was included in Alpha's consolidated federal income tax return and consolidated and combined income tax returns in certain states. For purposes of these Financial Statements, income taxes related to the Predecessor are presented as if it were a separate taxpayer for the Predecessor period. Therefore, the calculated amount of federal and state current income taxes differs from amounts previously recorded and paid by the Parent on behalf of Contura.
Total income tax expense (benefit) provided on income before income taxes was allocated as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31,
2015
Continuing operations
$
(67,979
)
 
$
(1,920
)
 
 
$
(39,881
)
 
$
(155,052
)
Discontinued operations
(17,681
)
 
551

 
 
4,992

 
(99,543
)
 
$
(85,660
)
 
$
(1,369
)
 
 
$
(34,889
)
 
$
(254,595
)
Significant components of income tax expense (benefit) from continuing operations were as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31,
2015
Current tax (benefit) expense:
 
 
 
 
 
 
 
 
Federal
$
10,078

 
$
(390
)
 
 
$
—

 
$
(10,740
)
State
687

 
180

 
 
—

 
—

 
$
10,765

 
$
(210
)
 
 
$
—

 
$
(10,740
)
 
 
 
 
 
 
 
 
 
Deferred tax (benefit) expense:
 
 
 
 
 
 
 
 
Federal
$
(78,744
)
 
$
(1,628
)
 
 
$
(29,961
)
 
$
(136,591
)
State
—

 
(82
)
 
 
(9,920
)
 
(7,721
)
 
$
(78,744
)
 
$
(1,710
)
 
 
$
(39,881
)
 
$
(144,312
)
 
 
 
 
 
 
 
 
 
Total income tax (benefit) expense:
 
 
 
 
 
 
 
 
Federal
$
(68,666
)
 
$
(2,018
)
 
 
$
(29,961
)
 
$
(147,331
)
State
687

 
98

 
 
(9,920
)
 
(7,721
)
 
$
(67,979
)
 
$
(1,920
)
 
 
$
(39,881
)
 
$
(155,052
)

F-40
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

A reconciliation of the statutory federal income tax expense (benefit) at 35% on income from continuing operations to the actual income tax expense (benefit) is as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31,
2015
Federal statutory income tax expense (benefit)
$
37,015

 
$
(4,818
)
 
 
$
(35,497
)
 
$
(144,494
)
Increase (reductions) in taxes due to:
 
 
 
 
 
 
 
 
Percentage depletion allowance
(5,164
)
 
(1,096
)
 
 
(5,209
)
 
(13,435
)
Federal tax rate change
179,825

 
—

 
 
—

 
—

Estimated sequestration reduction
5,640

 
—

 
 
—

 
—

State taxes, net of federal tax impact
1,059

 
(226
)
 
 
(1,365
)
 
(8,565
)
State tax rate and NOL change, net of federal tax benefit
(4,705
)
 
—

 
 
(5,151
)
 
3,455

Change in valuation allowances
(280,094
)
 
(8,950
)
 
 
69

 
91

Non-taxable bargain purchase gain
(354
)
 
(2,702
)
 
 
—

 
—

Non-deductible mark-to-market adjustment - warrant derivative
—

 
11,891

 
 
—

 
—

Non-deductible transaction costs
—

 
—

 
 
6,962

 
3,557

Stock-based compensation
(1,144
)
 
—

 
 
—

 
3,861

Charitable contribution carryforward expiration
—

 
3,537

 
 
—

 
—

Other, net
(57
)
 
444

 
 
310

 
478

Income tax benefit
$
(67,979
)
 
$
(1,920
)
 
 
$
(39,881
)
 
$
(155,052
)

F-41
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Deferred income taxes result from temporary differences between the reporting of amounts for financial statement purposes and income tax purposes. The net deferred tax assets and liabilities included in the Balance Sheet include the following amounts:
 
Successor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
Deferred tax assets:
 
 
 
  Property, plant and mineral reserves
$
65,618

 
$
283,301

  Asset retirement obligations
19,365

 
16,362

  Reserves and accruals not currently deductible
8,362

 
6,206

  Workers’ compensation benefit obligations
12,502

 
16,488

  Equity method investments
3,176

 
5,079

  Charitable contribution carryforwards
11,312

 
20,808

Alternative minimum tax credit carryforwards
78,744

 
91,973

Loss carryforwards, net of Section 382 limitation
175,846

 
125,536

  Acquisition-related obligations
7,383

 
—

  Other
6,022

 
4,535

     Gross deferred tax assets
388,330

 
570,288

Less valuation allowance
(298,892
)
 
(531,054
)
     Deferred tax assets
$
89,438

 
$
39,234

Deferred tax liabilities:
 
 
 
  Acquired intangibles, net
$
(4,273
)
 
$
(31,493
)
  Prepaid expenses
(5,186
)
 
(5,378
)
  Acquisition-related obligations
—

 
(2,043
)
  Other
(1,235
)
 
(320
)
     Total deferred tax liabilities
(10,694
)
 
(39,234
)
     Net deferred tax assets
$
78,744

 
$
—

Changes in the valuation allowance were as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31,
2015
Valuation allowance beginning of period
$
531,054

 
$
539,856

 
 
$
153

 
$
62

(Decrease) increase in valuation allowance recorded to income tax expense (benefit)
(288,177
)
 
(8,802
)
 
 
3,143

 
91

(Decrease) increase in valuation allowance not affecting income tax expense
56,015

 
—

 
 
—

 
—

Valuation allowance end of period
$
298,892

 
$
531,054

 
 
$
3,296

 
$
153

On December 22, 2017, President Trump signed into law legislation commonly referred to as the “Tax Cuts and Jobs Act” (“TCJA”). Effective for tax years beginning after December 31, 2017, the TCJA reduces the corporate income tax rate from 35% to 21%. As a result of the reduction in the corporate income tax rate, the Company recorded a reduction to the value of its net deferred tax assets before the valuation allowance of $179,825, resulting in an offsetting release in the

F-42
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

valuation allowance of $179,825. The TCJA also repeals the corporate alternative minimum tax (“AMT”), provides a mechanism for corporations to monetize alternative minimum tax credits (“AMT Credits”) during the 2018 to 2021 tax years, and makes changes to net operating loss provisions (“NOL”) to repeal NOL carrybacks, allow NOLs to be carried forward indefinitely, and limit the utilization of an NOL carryforward to 80% of taxable income generated.
As of December 31, 2017, the Company released the valuation allowance related to its AMT Credits, resulting in the recognition of a tax benefit of $78,744. The tax benefit recorded reflects a reduction to the AMT Credits of 6.2% related to the sequestration reduction expected to apply. Based on the accounting policy election made, the Company will classify the AMT Credits as a deferred tax asset until the taxable year in which the credit can be claimed on the tax return. In that year, the Company will reclassify the amount from a deferred tax asset to an income tax receivable. Under SAB 118, the Company has recorded its best estimate of the AMT Credits based on the information available at this time and will finalize the analysis within the one-year measurement period ending on December 22, 2018. Also, the Internal Revenue Service (“IRS”) may issue additional guidance in the form of regulations or notices regarding certain technical issues related to the monetization of the AMT Credits.
The Company acquired the core assets of Alpha as part of the Alpha Restructuring in transactions intended to be treated as a tax-free reorganization for U.S. federal income tax purposes. As a result of these transactions, the Company inherited the tax basis of the core assets and the net operating loss and other carryforwards of Alpha. On December 31, 2016, the net operating loss carryforwards and other carryforwards were reduced under Internal Revenue Code Section 108 due to the cancellation of indebtedness resulting from the Alpha Restructuring. Due to the change in ownership, the net operating loss and other carryforwards inherited in the Alpha Restructuring are subjected to significant limitations on their use in future years.
As of December 31, 2017, the Company recorded a full valuation allowance against its net deferred tax assets other than the AMT Credits. Due to the Company’s formation through acquisition of certain core coal assets as part of the Alpha Restructuring, the Company does not have a history of operating results. Additionally, significant ownership change limitations limit the ability of the Company to utilize its net operating loss and other carryforwards in future years.
At December 31, 2017, the Company has regular tax net operating loss carryforwards for Federal income tax purposes of approximately $828,000 of which $461,000 are available to offset regular Federal taxable income, subject to the annual Internal Revenue Code Section 382 limitation of approximately $1,000, and of which $367,000 are not currently subject to a Section 382 limitation. The Federal net operating loss carryforwards will expire between years 2033 and 2037. The net operating loss carryforwards limited under Section 382 are available to reduce taxable income between years 2018 and 2035. The Company has capital loss carryforwards of approximately $900,000, of which $509,000 are subject to the annual Section 382 limitation. The capital loss carryforwards expire in year 2021. To the extent the annual Section 382 limitation of $1,000 is exhausted by the utilization of net operating loss carryforwards in a given year, there is no additional capacity to utilize the capital loss carryforwards in that year. The Company also has charitable contribution carryforwards of $54,000, which will expire between years 2018 and 2022.
The Company does not have any unrecognized tax benefits. The Company’s policy is to classify interest and penalties related to uncertain tax positions as part of income tax expense. As of December 31, 2017 and 2016, the Company had no accrued interest and penalties.
As of December 31, 2017, tax years 2014 - 2017, which include the impact of net operating loss and other carryforwards and tax basis acquired from Alpha, remain open to federal and state examination.
(20) Employee Benefit Plans
Alpha and the Company provided several types of benefits for its employees, including postemployment health care and life insurance, defined benefit and defined contribution pension plans, and workers’ compensation and black lung benefits.
Postemployment Health Care and Life Insurance, Defined Benefit and Defined Contribution Pension Plans (“Pension and Postretirement”)
In the Predecessor period, certain of the Company’s employees participated in plans sponsored by Alpha. Alpha managed its pension and postretirement benefit plans on a combined basis, and claims data and liability information related to the

F-43
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Company are aggregated and combined, by plan, with those related to other Alpha businesses. As a result, no pension and postretirement assets or liabilities are included in the Balance Sheets and pension and postretirement expenses have been recorded on a multi-employer plan basis for the Predecessor period.
Alpha’s employee pension costs and obligations are developed from actuarial valuations. Inherent in these valuations are key assumptions, including discount rates, salary growth, long-term return on plan assets, retirement rates, mortality rates, and other factors. The selection of assumptions is based on historical trends and known economic and market conditions at the time of valuation, as well as independent studies of trends performed by actuaries. However, actual results may differ substantially from the estimates that were based on the critical assumptions. The Company used a December 31 measurement date for all of the plans. Actual results that differ from the Company’s assumptions are accumulated and amortized over future periods and, therefore, generally affect its recognized expense in such future periods. While management believes that the assumptions used are appropriate, significant differences in actual experience or significant changes in assumptions would affect the Company’s pension costs and obligations. The Company recognized $19,476 and $41,645 in expenses related to these allocations from Alpha during the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 , respectively, which are reflected in continuing and discontinued operations in the Combined Statements of Operations. These expenses are part of the Alpha allocations described in the basis of presentation portion of Note 1.
Workers’ Compensation and Pneumoconiosis (Black lung)
In March 2010, the Patient Protection and Affordable Care Act (“PPACA”) was enacted, potentially impacting the Company’s costs of providing healthcare benefits to its employees and workers’ compensation benefits related to occupational disease resulting from coal workers’ pneumoconiosis (black lung disease). The PPACA has both short-term and long-term implications on benefit plan standards. Implementation of this legislation is expected to extend through 2020. In the short term, the Company’s healthcare costs could increase due to, among other things, an increase in the maximum age for covered dependents to receive benefits, changes to benefits for occupational disease related illnesses, the elimination of lifetime dollar limits per covered individual and restrictions on annual dollar limits per covered individual. In the long term, the Company’s healthcare costs could increase due to, among other things, an excise tax on “high cost” plans and the elimination of annual dollar limits per covered individual.
Beginning in 2022, the PPACA will impose a 40% excise tax on employers to the extent that the value of their healthcare plan coverage exceeds certain dollar thresholds. The Company anticipates that certain government agencies will provide additional regulations or interpretations concerning the application of this excise tax. The Company will continue to evaluate the impact of the PPACA, including any new regulations or interpretations.
The Company is required by federal and state statutes to provide benefits to employees for awards related to workers’ compensation and black lung. Starting July 26, 2016, the Company’s subsidiaries were insured with a high deductible plan for worker’s compensation and black lung obligations by a third-party insurance provider, except for the Company’s discontinued operations in Wyoming, where the Company participated in a compulsory state-run fund for workers’ compensation. For the period prior to July 26, 2016, the Company’s subsidiaries were insured for worker’s compensation and black lung obligations by a third-party insurance provider with the exception of certain subsidiaries where the Company was a qualified self-insurer for workers’ compensation and/or black lung related obligations, and with the exception of the discontinued operations in Wyoming where the Company participated in a compulsory state-run fund for workers’ compensation. Prior to July 26, 2016, certain of the Company’s subsidiaries were self-insured for black lung benefits and could fund benefit payments through an existing Section 501(c)(21) tax-exempt trust fund.
The Company accrues for workers’ compensation liability by recognizing costs when it is probable that a covered liability has been incurred and the cost can be reasonably estimated. The Company’s estimates of these costs are adjusted based upon actuarial studies and include a provision for incurred but not reported losses. Actual losses may differ from these estimates, which could increase or decrease the Company’s costs. Additionally, the liability for black lung benefits is estimated by an independent actuary by prorating the accrual of actuarially projected benefits over the employee’s applicable term of service. Adjustments to the probable ultimate liability for workers’ compensation and black lung are made annually based on actuarial valuations.
At  December 31, 2017 , the Company had $29,199 of workers’ compensation liability, including a current portion of $5,580 recorded in accrued expenses and other current liabilities, offset by $6,038 of expected insurance receivable recorded

F-44
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

in other non-current assets in the Consolidated Balance Sheets. At December 31, 2016, the Company had $21,345 of workers’ compensation liability, including a current portion of $4,337 recorded in accrued expenses and other current liabilities, offset by $1,597 of expected insurance receivable recorded in other non-current assets in the Consolidated Balance Sheets.
For the Company’s subsidiaries that were fully insured for workers’ compensation claims, the insurance premium expense for the year ended December 31, 2015 $2,329.
Self-insured workers’ compensation expense for the period from January 1, 2016 to July 25, 2016 and for the year ended December 31, 2015 was $281 and $698, respectively. Certain of the Company’s subsidiaries’ self-insured workers’ compensation obligations were secured by letters of credit in the amount of $4,190 for the period from January 1, 2016 to July 25, 2016 and as of December 31, 2015.
For the Company’s subsidiaries that are insured with a high-deductible insurance plan for workers’ compensation and black lung claims, the insurance premium expense for the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016, the period from January 1, 2016 to July 25, 2016 and for the year ended December 31, 2015 was $4,948, $2,099, $1,037, and $4,377, respectively. Workers’ compensation expense for high-deductible insurance plans for the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016, the period from January 1, 2016 to July 25, 2016, and the year ended December 31, 2015 was $9,366, $2,085, $7,282, and $9,801, respectively.
The following tables set forth the accumulated black lung benefit obligations, fair value of plan assets and funded status for the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016, and the period from January 1, 2016 to July 25, 2016:
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
Change in benefit obligation:
 
 
 
 
 
 
Accumulated benefit obligation at beginning of period
$
13,501

 
$
15,158

 
 
$
28,309

Service cost
651

 
300

 
 
353

Interest cost
633

 
225

 
 
703

Actuarial loss (gain)
3,661

 
(2,182
)
 
 
4,113

Benefits paid
(76
)
 
—

 
 
(838
)
Curtailments
—

 
—

 
 
(696
)
Accumulated benefit obligation at end of period
$
18,370

 
$
13,501

 
 
$
31,944

Change in fair value of plan assets:
 
 
 
 
 
 
Fair value of plan assets at beginning of period
$
—

 
$
—

 
 
$
1,831

Actual return on plan assets
—

 
—

 
 
29

Benefits paid
(76
)
 
—

 
 
(838
)
Employer contributions
76

 
—

 
 
838

Fair value of plan assets at end of period (1)
—

 
—

 
 
1,860

Funded status
$
(18,370
)
 
$
(13,501
)
 
 
$
(30,084
)
Accrued benefit cost at end of period
$
(18,370
)
 
$
(13,501
)
 
 
$
(30,084
)
Summary of accrued benefit cost at end of period:
 
 
 
 
 
 
Continuing operations
(18,241
)
 
(13,386
)
 
 
(27,324
)
Discontinued operations
(129
)
 
(115
)
 
 
(2,760
)
Total accrued benefit cost at end of period
$
(18,370
)
 
$
(13,501
)
 
 
$
(30,084
)
______________
(1)
Assets of the plan during the Predecessor period were held in a Section 501(c)(21) tax-exempt trust fund and consisted primarily of government debt securities. All assets were classified as Level 1 and valued based on quoted market prices.

F-45
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)


The table below presents amounts recognized in the Balance Sheets:
 
Successor
 
December 31, 2017
 
December 31, 2016
Current liabilities
$
202

 
$
—

Current liabilities - discontinued operations
—

 
—

Long-term liabilities
18,039

 
13,386

Long-term liabilities - discontinued operations
129

 
115

 
$
18,370

 
$
13,501

Gross amounts related to the black lung obligations recognized in accumulated other comprehensive (income) loss consisted of the following as of December 31, 2017 and 2016: 
 
Successor
 
December 31, 2017
 
December 31, 2016
Net actuarial loss (gain)
$
1,628

 
$
(2,182
)
Accumulated other comprehensive loss (income)
$
1,628

 
$
(2,182
)
The following table details the components of the net periodic benefit cost for black lung obligations:
 
Successor
 
 
Predecessor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31,
2015
Service cost
$
651

 
$
300

 
 
$
353

 
$
394

Interest cost
633

 
225

 
 
703

 
865

Expected return on plan assets
—

 
—

 
 
(27
)
 
(39
)
Amortization of net actuarial (gain) loss
(149
)
 
—

 
 
206

 
121

Amortization of prior service cost
—

 
—

 
 
824

 
181

Curtailment loss
—

 
—

 
 
2,712

 
—

Net periodic expense
$
1,135

 
$
525

 
 
$
4,771

 
$
1,522

Summary net periodic expense:
 
 
 
 
 
 
 
 
Continuing operations
$
1,125

 
$
521

 
 
$
4,639

 
$
1,312

Discontinued operations
10

 
4

 
 
132

 
210

Total net periodic expense
$
1,135

 
$
525

 
 
$
4,771

 
$
1,522


F-46
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Other changes in the black lung plan assets and benefit obligations recognized in other comprehensive (income) loss are as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31,
2015
Actuarial loss (gain)
$
3,661

 
$
(2,182
)
 
 
$
3,415

 
$
(6,818
)
Amortization of net actuarial gain (loss)
149

 
—

 
 
(206
)
 
(121
)
Prior service cost
—

 
—

 
 
—

 
8,854

Amortization of prior service cost
—

 
—

 
 
(824
)
 
(181
)
Curtailment loss (gain)
—

 
—

 
 
(2,712
)
 
—

Total recognized in other comprehensive loss (income)
$
3,810

 
$
(2,182
)
 
 
$
(327
)
 
$
1,734

Total recognized in net periodic benefit cost and other comprehensive loss (income)
$
4,945

 
$
(1,657
)
 
 
$
4,444

 
$
3,256

The weighted-average assumptions related to black lung obligations used to determine the benefit obligation as of December 31, 2017 and 2016 were as follows: 
 
Successor
 
December 31, 2017
 
December 31, 2016
Discount rate
3.71
%
 
4.27
%
Federal black lung benefit trend rate
2.50
%
 
2.50
%
Black lung medical benefit trend rate
5.00
%
 
5.00
%
Black lung benefit expense inflation rate
2.50
%
 
2.50
%
The weighted-average assumptions related to black lung obligations used to determine net periodic benefit cost were as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31,
2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31,
2015
Discount rate for benefit obligations
4.29
%
 
3.62
%
 
 
3.90
%
 
4.02
%
Discount rate for service cost
4.32
%
 
3.66
%
 
 
N/A

 
N/A

Discount rate for interest cost
4.20
%
 
3.49
%
 
 
N/A

 
N/A

Federal black lung benefit trend rate
2.50
%
 
2.50
%
 
 
3.00
%
 
3.00
%
Black lung medical benefit trend rate
5.00
%
 
5.00
%
 
 
N/A

 
N/A

Black lung benefit expense inflation rate
2.50
%
 
2.50
%
 
 
N/A

 
N/A

Expected return on plan assets
N/A

 
N/A

 
 
2.50
%
 
2.50
%

F-47
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Estimated future cash payments related to black lung obligations for the next 10 years ending after December 31, 2017 are as follows: 
Year ending December 31:
 
2018
$
202

2019
13

2020
13

2021
13

2022
103

2023-2027
2,876

 
$
3,220

Life Insurance Benefits
As part of the Alpha Restructuring and the Retiree Committee Settlement Agreement (see Note 14), the Company assumed the liability for life insurance benefits for certain disabled and non-union retired employees. Provisions are made for estimated benefits and adjustments to the probable ultimate liabilities are made annually based on an actuarial study prepared by independent actuaries. These obligations are included in the Consolidated Balance Sheet as accrued expenses and other current liabilities and other non-current liabilities. At  December 31, 2017 , the Company had $12,640 of life insurance benefits liability related to obligations assumed in the acquisition.
The following tables set forth the accumulated life insurance benefit obligations, fair value of plan assets and funded status for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016:
 
Successor
 
December 31, 2017
 
December 31, 2016
Change in benefit obligation:
 
 
 
Accumulated benefit obligation at beginning of period
$
12,553

 
$
13,628

Interest cost
406

 
148

Actuarial loss (gain)
171

 
(1,086
)
Benefits paid
(490
)
 
(137
)
Accumulated benefit obligation at end of period
$
12,640

 
$
12,553

Change in fair value of plan assets:
 
 
 
Benefits paid (1)
(490
)
 
(137
)
Employer contributions (1)
490

 
137

Fair value of plan assets at end of period
$
—

 
$
—

Funded status
(12,640
)
 
(12,553
)
Accrued benefit cost at end of year
$
(12,640
)
 
$
(12,553
)
 
 
 
 
Amounts recognized in the consolidated balance sheets:
 
 
 
Current liabilities
$
834

 
$
866

Long-term liabilities
11,806

 
11,687

 
$
12,640

 
$
12,553

______________
(1)
Amount is comprised of premium payments to commercial life insurance provider.


F-48
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Gross amounts related to the life insurance benefit obligations recognized in accumulated other comprehensive income consisted of the following as of December 31, 2017 and 2016: 
 
Successor
 
December 31, 2017
 
December 31, 2016
Net actuarial gain
$
(861
)
 
$
(1,086
)
Accumulated other comprehensive income
$
(861
)
 
$
(1,086
)
The following table details the components of the net periodic benefit cost for life insurance benefit obligations:
 
Successor
 
Year Ended December 31, 2017
 
Period from
July 26, 2016 to
December 31, 2016
Interest cost
$
406

 
$
148

Amortization of net actuarial (gain) loss
(54
)
 
—

Net periodic expense
$
352

 
$
148

Other changes in the life insurance plan assets and benefit obligations recognized in other comprehensive income (loss) are as follows:
 
Successor
 
Year Ended December 31, 2017
 
Period from
July 26, 2016 to
December 31, 2016
Actuarial loss (gain)
$
171

 
$
(1,086
)
Amortization of net actuarial gain (loss)
54

 
—

Total recognized in other comprehensive income (loss)
$
225

 
$
(1,086
)
The weighted-average assumptions related to life insurance benefit obligations used to determine the benefit obligation as of December 31, 2017 and 2016 was as follows: 
 
Successor

 
2017
 
2016
Discount rate
3.56
%
 
4.03
%
The weighted-average assumptions related to life insurance benefit obligations used to determine net periodic benefit cost were as follows:
 
Successor
 
Year Ended
December 31, 2017
 
Period from
July 26, 2016 to
December 31, 2016
Discount rate for benefit obligations
4.03%
 
3.36%
Discount rate for interest cost
3.18%
 
2.71%

F-49
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Estimated future cash payments related to life insurance benefit obligations for the next 10 years ending after December 31, 2017 are as follows: 
Year ending December 31:
 
2018
$
834

2019
750

2020
698

2021
685

2022
676

2023-2027
3,259

 
$
6,902

Defined Contribution and Profit Sharing Plans
The Company sponsors defined contribution plans to assist its eligible employees in providing for retirement. Generally, under the terms of these plans, employees make voluntary contributions through payroll deductions and the Company makes matching and/or discretionary contributions, as defined by each plan. The Company’s total contributions to these plans for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 was $8,823 and $1,080, respectively.
In the Predecessor period, certain of the Company’s employees participated in defined contribution and profit sharing plans sponsored by Alpha. The amount of contributions allocated to the Company related to the plans was $0 and $2,467 for the period from January 1, 2016 to July 25, 2016 and for the year ended December 31, 2015, respectively, which is reflected within cost of coal sales and selling, general and administrative expenses in the Statement of Operations.
Self-Insured Medical Plan
The Company is self-insured for health insurance coverage for all of its active employees. Estimated liabilities for health and medical claims are recorded based on the Company’s historical experience and include a component for incurred but not paid claims. During the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016, the Company incurred total expenses of $31,318 and $13,927, respectively, which primarily includes claims processed and an estimate for claims incurred but not paid.
In Predecessor period, certain of the Company’s employees participated in self-insured medical plans sponsored by Alpha. The amount of contributions allocated to the Company related to the plans was $18,121 and $36,446 for the period from January 1, 2016 to July 25, 2016 and for the year ended December 31, 2015, respectively, which is reflected within cost of coal sales and selling, general and administrative expenses in the Results of Operations.
(21) Stock-Based Compensation Awards
The Management Incentive Plan (the “Plan”) is currently authorized for the issuance of awards of up to 1,201,202 shares of common stock, and as of December 31, 2017, there were no additional shares of common stock available for grant under the Plan.
During the year ended December 31, 2017 , the Company granted 437,450 shares of restricted stock and 129,520 non-qualified stock options to certain of its officers and key employees under the Plan. The restricted stock shares and non-qualified stock options vest ratably over a three-year period or in the event of a change in control, will fully vest subject to the recipient’s continued employment through such date.

F-50
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The restricted stock awards granted on March 7, 2017 and July 13, 2017 have a grant date fair value of $65.50 and $68.00, respectively, based on the Company’s stock price at the date of grant. The non-qualified stock options, granted on March 7, 2017, have an exercise price of $66.13 with a 10-year expiration from the date of grant. The non-qualified stock options have a grant date fair value of $37.44 based on a Black-Scholes pricing model. The Black-Scholes pricing model incorporates the assumptions as presented in the following table:
 
Successor
 
Year Ended December 31, 2017
Stock price
$
65.50

Exercise price
$
66.13

Expected term (1)
6.00

Annual risk-free interest rate (2)
2.18
%
Annualized volatility (3)
60.9
%
______________
(1)
The expected term represents the period of time that awards granted are expected to be outstanding.
(2)
The annual risk-free interest rate is based on the U.S. Constant Maturity Curve with a term equal to the award’s expected term on date of grant.
(3)
The annualized volatility is calculated by observing volatilities for comparable companies with adjustments for the Company’s size and leverage.

Additionally, during the year ended December 31, 2017 , the Company granted 5,504 time-based restricted stock units to its non-employee directors. These time-based units granted to the Company’s non-employee directors will vest on the first to occur of (i) the stated anniversary of the date of grant, (ii) the director’s separation from service (as defined in Section 409A of the Internal Revenue Code) due to the directors’ death or disability, and (iii) a change in control, subject in each case to the director’s continuous service with the Company through such date. Upon settlement of time-based stock units, the Company issues authorized and unissued shares of the Company’s common stock to the recipient. The time-based restricted stock units granted on May 31, 2017, June 9, 2017, and July 13, 2017 have a grant date fair value of $74.00, $73.00, and $68.00, respectively, based on the Company’s stock price at the date of grant.
Additionally, during the year ended December 31, 2017, the Company awarded certain of its non-employee directors 6,700 time-based restricted stock units with a grant date fair value of $62.55, based on the Company’s stock price at the date of grant. As of the date of the awards the Company did not have sufficient authorized and unissued common shares to settle these awards and the awards will be settled with cash, unless shares become available for issuance under the Plan. Therefore, these awards are classified as a liability. The Company’s liability for all outstanding liability awards totaled $163 as of December 31, 2017. These time-based units will vest on the first to occur of (i) the stated anniversary of the date of grant, (ii) the director’s separation from service (as defined in Section 409A of the Internal Revenue Code) due to the directors’ death or disability, and (iii) a change in control, subject in each case to the director’s continuous service with the Company through such date.
In connection with the Company’s declaration and payment of the Special Dividend and pursuant to the terms of the Company’s Management Incentive Plan, dividend equivalent payments of approximately $7,949 in the aggregate (including the amounts payable with respect to each share underlying outstanding stock option awards and restricted stock unit awards and outstanding restricted common stock under the Management Incentive Plan) were paid to plan participants. The dividend equivalent payments were made on July 11, 2017, which accelerated stock-based compensation expense by $5,113 and reduced the Company’s additional paid-in capital by $7,949.
On July 26, 2016, the Company granted certain of its officers and key employees 309,310 shares of common stock, 145,648 stock options with an exercise price of $2.50 per share, and 145,648 stock options with an exercise price equal to the 30-day volume-weighted average price for the period beginning July 27, 2016 and ending thirty days thereafter, but in any case not less than $2.50 per share and not more than $5.00 per share. The units granted to the officers and key employees were fully vested on the grant date.
An iterative variant approach of the option pricing method was utilized in estimating the fair value of the restricted shares and stock options granted on July 26, 2016, due to the lack of an active market price at that date. The Company solved iteratively for the common share price such that the total fair value across all the outstanding equity units equaled the

F-51
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Company’s equity value as of the Acquisition Date in order to account for the dilutive impact of the options and warrants on common stock. 
Using the value of common stock, the Company estimated the fair value of the stock options using the Black Scholes option pricing model. In estimating the fair value of the restricted shares, the Company applied the selected discount for lack of marketability to the common stock value to account for trading restrictions and different rights. Significant assumptions are as follows:
Total equity value
$44,644
Strike price
$2.50 per share and $5.00 per share for the fixed strike prices and the VWAP options, respectively
Expected life
The expected life was estimated by using the mid-point between the earliest time to exercise and the contractual expiration date
Volatility
85.0%
Cost of equity  
40.0%
Risk-free rate
Estimated based on the U.S. Constant Maturity Treasury yield curve as of the Acquisition Date and linear interpolation to match for the respective term
Discount for lack of marketability
41.0% using the protective put method
Additionally, during the period from July 26, 2016 to December 31, 2016, the Company granted 28,122 time-based restricted stock units to its non-employee directors based on the Company’s stock price at the date of grant, all of which remained outstanding as of December 31, 2017.
At December 31, 2017, the Company had three types of stock-based awards outstanding: time-based restricted stock shares, time-based restricted share units, and stock options. Stock-based compensation expense totaled $20,372 and $1,424 for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016, respectively. For the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016, approximately 94% and 91%, respectively, of stock-based compensation expense was reported as selling, general and administrative expenses and the remainder was recorded as cost of coal sales.
The Company is authorized to repurchase common shares from employees (upon the election by the employee) to satisfy the employees’ statutory tax withholdings upon the vesting of stock grants. Shares that are repurchased to satisfy the employees’ statutory tax withholdings are recorded in treasury stock at cost. The Company did not repurchase any common shares from employees to satisfy the employees’ statutory tax withholdings upon vesting of stock grants during the year ended December 31, 2017 or the period from July 26, 2016 to December 31, 2016. On September 15, 2017, the Company repurchased 309,310 shares of its common stock issued pursuant to awards under the Plan for a total purchase amount of $17,445, or $56.40 per share.

F-52
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Restricted Stock Shares
Restricted stock shares activity for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 is summarized in the following table: 
 
Number of 
Shares
 
Weighted-
Average 
Grant Date 
Fair Value
Non-vested shares outstanding at July 26, 2016
—

 
$
—

Granted
309,310

 
$
2.50

Vested
(309,310
)
 
$
2.50

Forfeited or Expired
—

 
$
—

Non-vested shares outstanding at December 31, 2016
—

 
$
—

Granted
437,450

 
$
65.55

Vested
—

 
$
—

Forfeited or Expired
—

 
$
—

Non-vested shares outstanding at December 31, 2017
437,450

 
$
65.55

As of December 31, 2017, there was $12,097 of unrecognized compensation cost related to non-vested time-based share units which is expected to be recognized as expense over a weighted-average period of 2.18 years.
Restricted Share Units
Time-Based Share Units
Time-based share unit activity for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 is summarized in the following table: 
 
Number of 
Shares
 
Weighted-
Average 
Grant Date 
Fair Value
Non-vested shares outstanding at July 26, 2016
—

 
$
—

Granted
28,122

 
$
16.00

Vested
—

 
$
—

Forfeited or Expired
—

 
$
—

Non-vested shares outstanding at December 31, 2016
28,122

 
$
16.00

Granted
5,504

 
$
73.37

Vested
(28,122
)
 
$
16.00

Forfeited or Expired
—

 
$
—

Non-vested shares outstanding at December 31, 2017
5,504

 
$
73.37

As of December 31, 2017, there was $150 of unrecognized compensation cost related to non-vested time-based share units which is expected to be recognized as expense over a weighted-average period of 0.42 years.

F-53
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Time-based cash share unit activity for the year ended December 31, 2017 is summarized in the following table: 
 
Number of 
Shares
 
Weighted-
Average 
Fair Value (1)
Non-vested shares outstanding at December 31, 2016
—

 
$
—

Granted
6,700

 
$
62.55

Vested
—

 
$
—

Forfeited or Expired
—

 
$
—

Non-vested shares outstanding at December 31, 2017
6,700

 
$
59.38

______________
(1)
The time-based cash units are accounted for as liability awards. Therefore, the weighted-average fair value is calculated using the Company's stock price at the respective granted date.

As of December 31, 2017, there was $235 of unrecognized compensation cost related to non-vested time-based share units which is expected to be recognized as expense over a weighted-average period of 0.49 years.
Stock Options
Fixed Price Stock Options
On July 26, 2016, the Company granted certain of its officers and key employees 145,648 stock options with an exercise price of $2.50 per share and a grant date fair value of $1.67. The units granted included 110,573 incentive stock option shares and 35,075 non-qualified stock option shares. The units granted to the officers and key employees were fully vested on the grant date.
Fixed price stock option activity for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 is summarized in the following table:
 
Number of
Shares
 
Weighted-
Average
Exercise
Price
 
Weighted-
Average
Remaining
Contractual
Term (Years)
Outstanding at July 26, 2016
—

 
$
—

 
 

Granted
145,648

 
$
2.50

 
10.00

Exercised
—

 
$
—

 
 

Forfeited or Expired
—

 
$
—

 
 

Outstanding at December 31, 2016
145,648

 
$
2.50

 
9.57

Exercisable at December 31, 2016
145,648

 
$
2.50

 
9.57

Granted
—

 
$
—

 
—

Exercised
—

 
$
—

 
—

Forfeited or Expired
—

 
$
—

 
—

Outstanding at December 31, 2017
145,648

 
$
2.50

 
8.57

Exercisable at December 31, 2017
145,648

 
$
2.50

 
8.57

As of December 31, 2017, the options outstanding and exercisable had an aggregate intrinsic value of $56.88 calculated as the difference between the exercise price and the Company’s stock price at December 31, 2017. As of December 31, 2017, there was no unrecognized compensation cost related to the fixed price stock options.

F-54
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

30-Day Volume-Weighted Average Price (“VWAP”) Stock Options
During the year ended December 31, 2017 , the Company granted 129,520 non-qualified stock options to certain of its officers and key employees under the Plan. The non-qualified stock options vest ratably over a three-year period or in the event of a change in control, will fully vest subject to the recipient’s continued employment through such date. The non-qualified stock options, granted on March 7, 2017, have an exercise price of $66.13 with a 10-year expiration from the date of grant. The non-qualified stock options have a grant date fair value of $37.44 based on a Black-Scholes pricing model.
On July 26, 2016, the Company granted certain of its officers and key employees 145,648 stock options with an exercise price equal to the 30-day VWAP price for the period beginning July 27, 2016 and ending thirty days thereafter, but in any case not less than $2.50 per share and not more than $5.00 per share and a grant date fair value of $1.51. The units granted included 70,573 incentive stock option shares and 75,075 non-qualified stock option shares. The units granted to the officers and key employees were fully vested on the grant date.
30-day VWAP stock option activity for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 is summarized in the following table:
 
Number of
Shares
 
Weighted-
Average
Exercise
Price
 
Weighted-
Average
Remaining
Contractual
Term (Years)
Outstanding at July 26, 2016
—

 
$
—

 
 
Granted
145,648

 
$
5.00

 
10.00
Exercised
—

 
$
—

 
 
Forfeited or Expired
—

 
$
—

 
 
Outstanding at December 31, 2016
145,648

 
$
5.00

 
9.57
Exercisable at December 31, 2016
145,648

 
$
5.00

 
9.57
Granted
129,520

 
$
66.13

 
9.18
Exercised
—

 
$
—

 
 
Forfeited or Expired
—

 
$
—

 
 
Outstanding at December 31, 2017
275,168

 
$
33.77

 
8.86
Exercisable at December 31, 2017
275,168

 
$
33.77

 
8.86
As of December 31, 2017, the options outstanding and exercisable that were granted July 26, 2016 and March 7, 2017 had an aggregate intrinsic value of $54.38 and ($6.75), respectively, calculated as the difference between the exercise price and the Company’s stock price at December 31, 2017. As of December 31, 2017, there was $1,733 of unrecognized compensation cost related to the 30-day VWAP stock options which is expected to be recognized as expense over a weighted-average period of 2.18 years.
Alpha
In the Predecessor period, Alpha sponsored the following employee stock plans in which certain Company employees participated:
On May 22, 2014, Alpha’s stockholders approved the Amended and Restated 2012 Long-Term Incentive Plan (the “2012 LTIP”). The principal purpose of the 2012 LTIP was to advance the interests of Alpha and its stockholders by providing incentives to certain eligible persons who contribute significantly to the strategic and long-term performance objectives and growth of Alpha. On May 22, 2014, Alpha’s stockholders approved an additional 3,100,000 shares of common stock for issuance under the 2012 LTIP Plan. The 2012 LTIP was authorized for the issuance of awards of up to 13,100,000 shares of common stock, and as of July 25, 2016, 7,218,657 shares of common stock were available for grant under the plan. The 2012 LTIP provided for a variety of awards, including options, stock appreciation rights, restricted stock, restricted share units (both time-based and performance-based), and any other type of award deemed by the compensation committee in its

F-55
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

discretion to be consistent with the purpose of the 2012 LTIP. Prior to the approval of the 2012 LTIP, Alpha issued awards under the 2010 Long Term Incentive Plan (the “2010 LTIP”) and the Alpha Appalachia 2006 Stock and Incentive Compensation Plan (the “2006 SICP”). Upon approval of the 2012 LTIP, no additional awards were issued under the 2010 LTIP or the 2006 SICP. The 2012 LTIP, the 2010 LTIP and the 2006 SICP are collectively referred to as the “Stock Plans.” Alpha also had stock-based awards outstanding under the Alpha Natural Resources, Inc. 2005 Long-Term Incentive Plan (the “2005 LTIP”) and the Foundation Amended and Restated 2004 Stock Incentive Plan (the “2004 SIP”).
Upon vesting of restricted share units (both time-based and performance-based) or the exercise of options, shares were issued from the 2012 LTIP, the 2010 LTIP, the 2006 SICP, the 2005 LTIP, and the 2004 SIP, respective of which plan the awards were granted.
Alpha was authorized to repurchase common shares from employees (upon the election by the employee) to satisfy the employees’ minimum statutory tax withholdings upon the vesting of restricted stock and restricted share units (both time-based and performance-based). Shares that were repurchased to satisfy the employees’ minimum statutory tax withholdings were recorded in treasury stock at cost. During the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015, Alpha repurchased 0 and 442,035, respectively, of common shares from employees at an average price paid per share of $0 and $0.95, respectively.
At July 25, 2016, Alpha had three types of stock-based awards outstanding: restricted share units (both time-based and performance-based), restricted cash units (both time-based and performance-based), and stock options. As a result of Alpha’s bankruptcy filing, Alpha was no longer settling pre-petition awards. Stock-based compensation expense recorded by the Company totaled $465 and $1,817, for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015, respectively. For the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015, approximately 78% and 54%, respectively, of stock-based compensation expense was reported as selling, general and administrative expenses and the remainder was recorded as cost of coal sales. The total excess tax benefit recognized for stock-based compensation was $0 for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015.
Restricted Share Units
Time-Based Share Units
During the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015, Alpha granted time-based share units under the 2012 LTIP to certain executive officers, directors and key employees in the amount of 0 and 3,760,612, respectively, of which 2,781,383 remained outstanding as of July 25, 2016. Additionally, during the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015, Alpha also awarded certain of its executives and key employees time-based cash units in the amount of 0 and 9,942,699, respectively, of which 8,242,698 remained outstanding as of July 25, 2016. Time-based cash units were accounted for as liability awards and subject to variable accounting. The grant date fair value of the time-based share units were based on the Company’s stock price at the respective date.

F-56
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Alpha’s time-based share unit activity for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 is summarized in the following table: 
 
Number of
Shares
 
Weighted-Average
Grant Date
Fair Value
Alpha
 
 
 
Non-vested shares outstanding at December 31, 2014
3,768,433

 
$
7.32

Granted
3,760,612

 
$
1.25

Earned
(1,390,009
)
 
$
7.91

Forfeited or Expired
(1,416,837
)
 
$
4.15

Non-vested shares outstanding at December 31, 2015
4,722,199

 
$
3.24

Granted
—

 
$
—

Earned
—

 
$
—

Forfeited or Expired
(511,048
)
 
$
2.13

Non-vested shares outstanding at July 25, 2016
4,211,151

 
$
3.37

Alpha’s time-based cash unit activity for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 is summarized in the following table: 
 
Number of
Shares
 
Weighted-Average
Grant Date
Fair Value (1)
Alpha
 
 
 
Non-vested shares outstanding at December 31, 2014
1,919,680

 
$
1.67

Granted
9,942,699

 
$
0.95

Earned
(454,626
)
 
$
0.89

Forfeited or Expired
(1,457,293
)
 
$
0.11

Non-vested shares outstanding at December 31, 2015
9,950,460

 
$
0.01

Granted
—

 
$
—

Earned
—

 
$
—

Forfeited or Expired
(550,653
)
 
$
1.46

Non-vested shares outstanding at July 25, 2016
9,399,807

 
$
1.35

______________
(1)
The time-based cash units were accounted for as liability awards and subject to variable accounting. Therefore, the weighted-average fair value was calculated using Alpha’s stock price at the respective granted date, vested date and forfeited/expired date.

The fair value of time-based share unit awards that vested in the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 was $0 and $1,687, respectively. As of July 25, 2016, Alpha had $2,184 of unrecognized compensation cost related to non-vested time-based share units which was expected to be recognized as expense over a weighted-average period of 1.33 years. Additionally, as of July 25, 2016, Alpha had $36 of unrecognized compensation cost related to non-vested time-based cash units which was expected to be recognized as expense over a weighted-average period of 1.31 years. The unrecognized compensation cost, related to non-vested time-based cash units which are accounted for as liability awards and subject to variable accounting, was calculated using Alpha’s July 25, 2016 stock price.
Performance-Based Share Units
Performance-based share units awarded to executive officers and key employees generally cliff vested after three years, subject to continued employment (with accelerated vesting upon a change of control). Performance-based share units granted represented the number of shares of common stock to be awarded based on the achievement of targeted performance levels

F-57
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

related to pre-established operating income goals, strategic goals, total stockholder return goals, and cash flow from operations goals over a three year period and could range from 0 percent to 200 percent of the targeted amount. The grant date fair value of the awards with performance conditions was based on the closing price of Alpha’s common stock on the established grant date and was amortized over the performance period. The grant date fair value of the awards with market conditions was based upon a Monte Carlo simulation and was amortized over the performance period. For awards with performance conditions, Alpha reassessed at each reporting date whether achievement of each of the performance conditions was probable, as well as estimated forfeitures, and adjusted the accruals of compensation expense as appropriate. For awards with market conditions, Alpha recognized expense over the applicable service periods and did not adjust expense based on the actual achievement or nonachievement of the market condition because the probability of achievement was considered in the grant date fair value of the award. Upon vesting of performance-based share units, Alpha issued authorized and unissued shares of Alpha’s common stock to the recipient. During the period from January 1, 2016 to July 25, 2016 and year ended December 31, 2015, Alpha awarded 0 total stockholder return performance-based share units.
Alpha’s performance-based share unit activity is summarized in the following table: 
 
Number of 
Shares (1)
 
Weighted-Average Grant Date Fair Value
Alpha
 
 
 
Non-vested shares outstanding at December 31, 2014
7,818,631

 
$
8.78

Granted
—

 
$
—

Earned
—

 
$
—

Forfeited or Expired
(3,422,914
)
 
$
11.84

Non-vested shares outstanding at December 31, 2015
4,395,717

 
$
6.39

Granted
—

 
$
—

Earned
—

 
$
—

Forfeited or Expired
(1,363,126
)
 
$
7.63

Non-vested shares outstanding at July 25, 2016
3,032,591

 
$
5.83

______________
(1)
Shares in the table above were based on the maximum shares that can be awarded based on the achievement of the performance criteria.

Alpha’s performance-based cash unit activity is summarized in the following table: 
 
Number of 
Shares (1)
 
Weighted-Average Grant Date Fair Value (2)
Alpha
 
 
 
Non-vested shares outstanding at December 31, 2014
2,744,280

 
$
1.67

Granted
—

 
$
—

Earned
—

 
$
—

Forfeited or Expired
(2,744,280
)
 
$
1.14

Non-vested shares outstanding at December 31, 2015
—

 
$
—

Granted
—

 
$
—

Earned
—

 
$
—

Forfeited or Expired
—

 
$
—

Non-vested shares outstanding at July 25, 2016
—

 
$
—

______________
(1)
Shares in the table above were based on the maximum shares that can be awarded based on the achievement of the performance criteria.
(2)
The performance-based cash units were accounted for as liability awards and subject to variable accounting. Therefore, the weighted-average fair value was calculated using Alpha’s stock price at the respective granted date, vested date, forfeited/expired date, and outstanding dates.

F-58
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Non-Qualified Stock Options
Alpha’s stock option activity for the period from January 1, 2016 to July 25, 2016 and year ended December 31, 2015 is summarized in the following table:
Alpha
Number of
Shares
 
Weighted-
Average
Exercise
Price
 
Weighted-Average
Remaining
Contractual
Term (Years)
Outstanding at December 31, 2014
586,722

 
$
25.48

 
3.41

Exercisable at December 31, 2014
586,722

 
$
25.48

 
3.41

Exercised
—

 
$
—

 
 
Forfeited or Expired
(227,695
)
 
$
24.39

 
 
Outstanding at December 31, 2015
359,027

 
$
26.20

 
3.50

Exercisable at December 31, 2015
359,027

 
$
26.20

 
3.50

Exercised
—

 
$
—

 
 
Forfeited or Expired
(58,350
)
 
$
22.87

 
 
Outstanding at July 25, 2016
300,677

 
$
26.84

 
2.89

Exercisable at July 25, 2016
300,677

 
$
26.84

 
2.89

As of July 25, 2016, the options outstanding and exercisable had an aggregate intrinsic value of $0. Cash received from the exercise of stock options during the period from January 1, 2016 to July 25, 2016 and year ended December 31, 2015 was $0. As of July 25, 2016, there was no unrecognized compensation cost related to stock options.
The total intrinsic value of options exercised during the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 was $0. Alpha historically used authorized and unissued shares to satisfy share award exercises.
A summary of Alpha’s options outstanding and exercisable at July 25, 2016 follows:
Alpha
Options Outstanding and Exercisable
Exercise Price
Shares
 
Weighted-Average
Remaining
Life (yrs)
 
Weighted-Average
Exercise Price
$ 11.15 - $20.44
110,413

 
2.03

 
$
16.59

$ 23.93 - $32.91
112,704

 
2.79

 
$
27.08

$ 40.98 - $48.26
77,560

 
4.27

 
$
41.07

 
300,677

 
2.89

 
$
26.84

(22) Reorganization Items
In connection with Alpha’s restructuring during the Predecessor period, certain prepetition liabilities were reclassified as liabilities subject to compromise. Liabilities subject to compromise included estimated or liquidated amounts for certain obligations arising prior to the Petition Date, including, among others, (i) contractual obligations, (ii) debt-related obligations and (iii) litigation and other contingent claims, some of which were recorded in accounts payable.

F-59
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Reorganization items consisted of the following:
 
Predecessor
 
Period from January 1, 2016 to July 25, 2016 (2)
 
Year Ended December 31, 2015 (2)
Professional fees (1)
$
(28,652
)
 
$
(14,598
)
Provision for rejected contracts and leases
(3,524
)
 
(2,326
)
Trade accounts payable and other
1,103

 
790

Reorganization items, net
$
(31,073
)
 
$
(16,134
)
______________
(1)
Net cash paid for reorganization items for the period from January 1, 2016 to July 25, 2016  and the year ended December 31, 2015 totaled approximately $27,236 and $8,408, respectively, related to professional fees.
(2)
Includes the Company’s PRB operations being reported as discontinued operations in the Consolidated Financial Statements.

(23) Related Party Transactions
Successor
There were no material related party transactions for the year ended December 31, 2017 .
Predecessor
As discussed in Note 1, the Predecessor Financial Statements include direct costs of the Company incurred by Alpha on the Company’s behalf and an allocation of general corporate expenses of Alpha which were not historically allocated to the Company for certain support functions that were provided on a centralized basis within Alpha and not recorded at the business unit level, such as expenses related to engineering, finance, human resources, information technology, sales and logistics, and legal, among others, and that would have been incurred had the Company been a separate, stand-alone entity. All significant affiliate transactions between Contura and Alpha have been included in these Financial Statements and are considered to be effectively settled for cash at the time the transaction is recorded. The total net effect of the settlement of these affiliate transactions represents capital contributions from or distributions to Alpha and therefore is reflected in the accompanying Statements of Cash Flows as a financing activity.
During the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 , the Company was allocated $57,217 and $92,009, respectively, of indirect general corporate expenses incurred by Alpha, which are included within continuing and discontinued operations in the Combined Statements of Operations. These amounts exclude allocated reorganization items, which are discussed in Note 22.
(24) Commitments and Contingencies
(a) General
Estimated losses from loss contingencies are accrued by a charge to income when information available indicates that it is probable that an asset has been impaired or a liability has been incurred and the amount of the loss can be reasonably estimated.
If a loss contingency is not probable or reasonably estimable, disclosure of the loss contingency is made in the Financial Statements when it is at least reasonably possible that a loss may be incurred and that the loss could be material.
(b) Commitments and Contingencies
Commitments
The Company leases coal mining and other equipment under long-term capital and operating leases with varying terms. In addition, the Company leases mineral interests and surface rights from land owners under various terms and royalty rates.

F-60
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

As of December 31, 2017 , aggregate future minimum non-cancelable lease payments under operating leases and minimum royalties under coal leases were as follows: 
 
Operating 
Leases
 
Coal 
Royalties
Year Ending December 31:
 
 
 
2018
$
893

 
$
1,304

2019
783

 
1,131

2020
747

 
1,054

2021
737

 
1,064

2022
182

 
647

Thereafter
326

 
859

Total
$
3,668

 
$
6,059

Net rent expense under operating leases was $1,838 and $582 and coal royalty expense was $21,707 and $7,869 for the year ended December 31, 2017 and the period from July 26, 2016 to December 31, 2016 , respectively. Net rent expense under operating leases was $659 and $2,239 and coal royalty expense was $5,807 and $13,361 for the period from January 1, 2016 to July 25, 2016 and the year ended December 31, 2015 , respectively.
Other Commitments
The Company has obligations under certain coal purchase agreements that contain minimum quantities to be purchased in 2018, 2019, and 2020 totaling $504,125, $62,160, and $1,540, respectively, which includes an estimated $136,640 related to contractually committed variable priced tons from vendors with historical performance resulting in less than 20% of the committed tonnage being delivered. The Company has obligations under certain coal transportation agreements that contain minimum quantities to be shipped in 2018, 2019, and 2020 totaling $3,042, $3,072, and $3,102, respectively. The Company also has obligations under certain equipment purchase agreements that contain minimum quantities to be purchased in 2018 totaling $22,983.
Contingencies
Extensive regulation of the impacts of mining on the environment and of maintaining workplace safety has had and is expected to continue to have a significant effect on the Company’s costs of production and results of operations. Further regulations, legislation or litigation in these areas may also cause the Company’s sales or profitability to decline by increasing costs or by hindering the Company’s ability to continue mining at existing operations or to permit new operations.
During the normal course of business, contract-related matters arise between the Company and its customers. When a loss related to such matters is considered probable and can reasonably be estimated, the Company records a liability.
Per terms of the Back-to-Back Coal Supply Agreements, the Company is required to purchase and sell coal in 2018, 2019, 2020 and 2021 totaling $224,813, $227,655, $176,786 and $5,460, respectively. For the period ended December 31, 2017, the Company purchased and sold 2,000 tons, totaling $21,707, under the Back-to-Back Coal Supply Agreements. See Note 4 for further details on the Back-to-Back Coal Supply Agreements.
As a result of certain tax law changes made in December 2017, the Company is entitled to monetize alternative minimum tax credits in aggregate of $78,744 over tax years 2018 to 2021 (the “AMT Credits”), and the Company has recorded a deferred tax asset of $78,744 on our financial statements. ANR has asserted that, under the terms of the Asset Purchase Agreement that it entered into with us on July 26, 2016, it is entitled to the value of the AMT Credits, although it has not made a formal claim in this regard. The Company disagrees with this assertion and intends to dispute any such claim.

F-61
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

(c) Guarantees and Financial Instruments with Off-Balance Sheet Risk
In the normal course of business, the Company is a party to certain guarantees and financial instruments with off-balance sheet risk, such as bank letters of credit, performance or surety bonds, and other guarantees and indemnities related to the obligations of affiliated entities which are not reflected in the Company’s Balance Sheet. As of December 31, 2017 , the Company had outstanding surety bonds with a total face amount of $403,391 to secure various obligations and commitments, including $237,390 related to the PRB. To secure the Company’s obligations under reclamation-related bonds, the Company is required to provide cash collateral. Once the permits associated with the PRB Transaction have been transferred, the Company estimates approximately $24,000 comprised of short-term restricted cash and short-term deposits will be returned to operating cash. The permit transfer process is estimated to be completed in the first half of 2018.
As of December 31, 2017 , the Company had real property collateralizing $26,749 of reclamation bonds.
Letters of Credit
As of December 31, 2017 , the Company had $11,300 letters of credit outstanding under the Asset-Based Revolving Credit Agreement.
(d) Legal Proceedings 
The Company could become party to legal proceedings from time to time. These proceedings, as well as governmental examinations, could involve various business units and a variety of claims including, but not limited to, contract disputes, personal injury claims, property damage claims (including those resulting from blasting, trucking and flooding), environmental and safety issues, and employment matters. While some legal matters may specify the damages claimed by the plaintiffs, many seek an unquantified amount of damages. Even when the amount of damages claimed against the Company or its subsidiaries is stated, (i) the claimed amount may be exaggerated or unsupported; (ii) the claim may be based on a novel legal theory or involve a large number of parties; (iii) there may be uncertainty as to the likelihood of a class being certified or the ultimate size of the class; (iv) there may be uncertainty as to the outcome of pending appeals or motions; and/or (v) there may be significant factual issues to be resolved. As a result, if such legal matters arise in the future the Company may be unable to estimate a range of possible loss for matters that have not yet progressed sufficiently through discovery and development of important factual information and legal issues. The Company records accruals based on an estimate of the ultimate outcome of these matters, but these estimates can be difficult to determine and involve significant judgment.
(25) Concentration of Credit Risk and Major Customers
The Company markets its coal principally to electric utilities in the United States and international and domestic steel producers. Credit is extended based on an evaluation of the customer’s financial condition and collateral is generally not required. Credit losses are provided for in the Financial Statements and were minimal for the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016, the period from January 1, 2016 to July 25, 2016, and the year ended December 31, 2015.

F-62
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Top customers as a percentage of total revenue and steam and met coal as % of coal sales volume were as follows:
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Total revenue
$
1,649,969

 
$
506,296

 
 
$
411,111

 
$
926,021

Top customer as % of total revenue (1)
15
%
 
15
%
 
 
7
%
 
12
%
Top 10 customers as % of total revenue (2)
65
%
 
67
%
 
 
54
%
 
63
%
Steam coal as % of coal sales volume
43
%
 
47
%
 
 
63
%
 
60
%
Met coal as % of coal sales volume
57
%
 
53
%
 
 
37
%
 
40
%
___________________
(1)
Revenues from the top customer are included in the CAPP and Trading and Logistics segments for the year ended December 31, 2017, the CAPP, NAPP, and Trading and Logistics segments for the period from July 26, 2016 to December 31, 2016, and the NAPP segment for the period from January 1, 2016 to July 25, 2016 and for the year ended December 31, 2015.
(2)
In addition to the top customer, the Company has another customer with total revenues of 11% of total revenues included in the CAPP, NAPP, and Trading and Logistics segments for the year ended December 31, 2017 , and another customer with total revenues of 11% of total revenues included in the CAPP Segment for the year ended December 31, 2015.

Additionally, two of the Company’s customers had outstanding balances each in excess of 10% of the total accounts receivable balance as of December 31, 2017 , and three of the Company’s customers had outstanding balances each in excess of 10% of the total accounts receivable balance as of December 31, 2016.
The Company sold 4,998 million tons of coal purchased from third parties, excluding tons sold related to the Back-to-Back Coal Supply Agreements, for the year ended December 31, 2017, representing approximately 32% of total coal sales volume during such period. Additionally, the Company purchases a substantial portion of this coal from one source.
(26) Segment Information
The Company extracts, processes and markets steam and met coal from surface and deep mines for sale to electric utilities, steel and coke producers, and industrial customers. The Company operates only in the United States with mines in Northern and Central Appalachia. The Company has three reportable segments: CAPP, NAPP and Trading and Logistics. CAPP consists of seven active mines and two preparation plants in Virginia, one active mine and one preparation plant in West Virginia, as well as expenses associated with certain closed mines. NAPP consists of one active mine in Pennsylvania and one preparation plant, as well as expenses associated with one closed mine. The Trading and Logistics segment primarily engages in coal trading activities and coal terminal services.
In addition to the three reportable segments, the All Other category includes general corporate overhead and corporate assets and liabilities, the elimination of intersegment activity, and the Company’s discontinued operations.
The operating results of these reportable segments are regularly reviewed by the Chief Operating Decision Maker (“CODM”), who is the Chief Executive Officer of the Company.
Segment operating results and capital expenditures for the year ended December 31, 2017 were as follows: 
 
Successor
 
Year Ended December 31, 2017
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Total revenues
$
460,023

 
$
306,563

 
$
882,548

 
$
835

 
$
1,649,969

Depreciation, depletion, and amortization
$
18,941

 
$
15,087

 
$
—

 
$
882

 
$
34,910

Amortization of acquired intangibles, net
$
—

 
$
—

 
$
59,007

 
$
—

 
$
59,007

Adjusted EBITDA (1)
$
175,018

 
$
54,433

 
$
88,646

 
$
(59,840
)
 
$
258,257

Capital expenditures
$
20,494

 
$
51,007

 
$
—

 
$
1,200

 
$
72,701

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.

Segment operating results and capital expenditures for the period from July 26, 2016 to December 31, 2016 were as follows: 
 
Successor
 
Period from July 26, 2016 to December 31, 2016
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Total revenues
$
138,973

 
$
132,363

 
$
234,704

 
$
256

 
$
506,296

Depreciation, depletion, and amortization
$
6,442

 
$
(772
)
 
$
—

 
$
303

 
$
5,973

Amortization of acquired intangibles, net
$
—

 
$
—

 
$
61,281

 
$
—

 
$
61,281

Adjusted EBITDA (1)
$
46,405

 
$
28,198

 
$
39,228

 
$
(19,429
)
 
$
94,402

Capital expenditures
$
4,626

 
$
18,136

 
$
—

 
$
612

 
$
23,374

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.


F-63
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

Segment operating results and capital expenditures for the period from January 1, 2016 to July 25, 2016 were as follows: 
 
Predecessor
 
Period from January 1, 2016 to July 25, 2016
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Total revenues
$
169,411

 
$
229,323

 
$
12,377

 
$
—

 
$
411,111

Depreciation, depletion, and amortization
$
15,389

 
$
49,852

 
$
3

 
$
832

 
$
66,076

Amortization of acquired intangibles, net
$
—

 
$
11,567

 
$
—

 
$
—

 
$
11,567

Adjusted EBITDA (1)
$
591

 
$
35,454

 
$
(1,180
)
 
$
(29,571
)
 
$
5,294

Capital expenditures
$
894

 
$
14,468

 
$
—

 
$
—

 
$
15,362

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.

Segment operating results and capital expenditures for the year ended December 31, 2015 were as follows: 
 
Predecessor
 
Year Ended December 31, 2015
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Total revenues
$
367,662

 
$
492,005

 
$
66,354

 
$
—

 
$
926,021

Depreciation, depletion, and amortization
$
42,869

 
$
104,479

 
$
13

 
$
1,836

 
$
149,197

Amortization of acquired intangibles, net
$
350

 
$
1,873

 
$
—

 
$
—

 
$
2,223

Adjusted EBITDA (1)
$
2,094

 
$
89,531

 
$
1,265

 
$
(44,159
)
 
$
48,731

Capital expenditures
$
20,826

 
$
23,868

 
$
—

 
$
—

 
$
44,694

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.


F-64
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The following table presents a reconciliation of net income (loss) to adjusted EBITDA for the year ended December 31, 2017 :
 
Successor
 
Year Ended December 31, 2017
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Net income (loss) from continuing operations
$
150,304

 
$
36,604

 
$
29,639

 
$
(42,812
)
 
$
173,735

Interest expense
(90
)
 
(1,505
)
 
—

 
37,572

 
35,977

Interest income
(22
)
 
(1
)
 
—

 
(187
)
 
(210
)
Income tax benefit
—

 
—

 
—

 
(67,979
)
 
(67,979
)
Depreciation, depletion and amortization
18,941

 
15,087

 
—

 
882

 
34,910

Mark-to-market adjustment - acquisition-related obligations
—

 
—

 
—

 
3,221

 
3,221

Gain on settlement of acquisition-related obligations
—

 
—

 
—

 
(38,886
)
 
(38,886
)
Secondary offering costs
—

 
—

 
—

 
4,491

 
4,491

Loss on early extinguishment of debt
—

 
—

 
—

 
38,701

 
38,701

Bargain purchase gain
—

 
—

 
—

 
(1,011
)
 
(1,011
)
Accretion expense
5,770

 
4,164

 
—

 
—

 
9,934

Amortization of acquired intangibles, net
—

 
—

 
59,007

 
—

 
59,007

Expenses related to dividend
115

 
84

 
—

 
6,168

 
6,367

Adjusted EBITDA (1) (2)
$
175,018

 
$
54,433

 
$
88,646

 
$
(59,840
)
 
$
258,257

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, the Company is no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $41,863 for the year ended December 31, 2017.

F-65
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The following table presents a reconciliation of net (loss) income to adjusted EBITDA for the period from July 26, 2016 to December 31, 2016:
 
Successor
 
Period from July 26, 2016 to December 31, 2016
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Net income (loss) from continuing operations
$
37,436

 
$
26,434

 
$
(22,053
)
 
$
(53,663
)
 
$
(11,846
)
Interest expense
97

 
171

 
—

 
20,228

 
20,496

Interest income
(6
)
 
—

 
—

 
(17
)
 
(23
)
Income tax benefit
—

 
—

 
—

 
(1,920
)
 
(1,920
)
Depreciation, depletion and amortization
6,442

 
(772
)
 
—

 
303

 
5,973

Mark-to-market adjustment for warrant derivative liability
—

 
—

 
—

 
33,975

 
33,975

Bargain purchase gain
—

 
—

 
—

 
(7,719
)
 
(7,719
)
Mark-to-market adjustment - acquisition-related obligations
—

 
—

 
—

 
(10,616
)
 
(10,616
)
Accretion expense
2,436

 
2,365

 
—

 
—

 
4,801

Amortization of acquired intangibles, net
—

 
—

 
61,281

 
—

 
61,281

Adjusted EBITDA (1) (2)
$
46,405

 
$
28,198

 
$
39,228

 
$
(19,429
)
 
$
94,402

_______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, the Company is no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $45,786 for the period from July 26, 2016 to December 31, 2016.


F-66
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The following table presents a reconciliation of net (loss) income to adjusted EBITDA for the period from January 1, 2016 to July 25, 2016 :
 
Predecessor
 
Period from January 1, 2016 to July 25, 2016
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Net (loss) income from continuing operations
$
(26,407
)
 
$
(43,143
)
 
$
(1,452
)
 
$
9,461

 
$
(61,541
)
Interest expense
2

 
—

 
—

 
—

 
2

Interest income
(9
)
 
(10
)
 
—

 
—

 
(19
)
Income tax benefit
—

 
—

 
—

 
(39,881
)
 
(39,881
)
Depreciation, depletion and amortization
15,389

 
49,852

 
3

 
832

 
66,076

Reorganization items, net
8,196

 
12,528

 
248

 
17

 
20,989

Asset impairment and restructuring
1,667

 
1,408

 
21

 
—

 
3,096

Accretion expense
1,753

 
3,252

 
—

 
—

 
5,005

Amortization of acquired intangibles, net
—

 
11,567

 
—

 
—

 
11,567

Adjusted EBITDA (1) (2)
$
591

 
$
35,454

 
$
(1,180
)
 
$
(29,571
)
 
$
5,294

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, the Company is no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $36,819 for the period from January 1, 2016 to July 25, 2016.


F-67
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

The following table presents a reconciliation of net (loss) income to adjusted EBITDA for the year ended December 31, 2015 :
 
Predecessor
 
Year Ended December 31, 2015
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Combined
Net (loss) income from continuing operations
$
(118,543
)
 
$
(249,090
)
 
$
795

 
$
109,052

 
$
(257,786
)
Interest expense
28

 
—

 
—

 
—

 
28

Interest income
(3
)
 
(1
)
 
—

 
—

 
(4
)
Income tax benefit
—

 
—

 
—

 
(155,052
)
 
(155,052
)
Depreciation, depletion and amortization
42,869

 
104,479

 
13

 
1,836

 
149,197

Reorganization items, net
3,438

 
6,306

 
336

 
5

 
10,085

Impairments
72,012

 
224,139

 
3

 
—

 
296,154

Restructuring
1,573

 
(420
)
 
118

 
—

 
1,271

Accretion expense
3,005

 
2,691

 
—

 
—

 
5,696

Mark-to-market adjustment for other derivatives
(2,635
)
 
(446
)
 
—

 
—

 
(3,081
)
Amortization of acquired intangibles, net
350

 
1,873

 
—

 
—

 
2,223

Adjusted EBITDA (1) (2)
$
2,094

 
$
89,531

 
$
1,265

 
$
(44,159
)
 
$
48,731

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back accretion expense, a non-cash expense, to align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, the Company is no longer presenting a PRB reporting segment. The former PRB reporting segment had adjusted EBITDA of $67,272 for the year ended December 31, 2015.

No asset information has been provided for these reportable segments as the CODM does not regularly review asset information by reportable segment.
The Company markets produced, processed and purchased coal to customers in the United States and in international markets, primarily India, Italy, Brazil, France, and Mexico. Export coal revenues, including freight and handling revenues, were the following:
 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from
July 26, 2016 to December 31, 2016
 
 
Period from
January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Total coal revenue (1)
$
1,639,883

 
$
502,236

 
 
$
396,768

 
$
913,247

Export coal revenue (1) (2)
$
1,265,320

 
$
357,343

 
 
$
155,735

 
$
339,066

Export coal revenue as % of total coal revenue (1)
77
%
 
71
%
 
 
39
%
 
37
%
______________
(1)
Amounts include freight and handling revenues
(2)
The amounts for the year ended December 31, 2017 include $356,673 of export coal revenue, including freight and handling revenue, from external customers in India recorded within the CAPP, NAPP, and Trading and Logistics segments. Revenue is tracked within the Company’s accounting records based on the product destination.


F-68
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

(27) Investment in Unconsolidated Affiliate
Dominion Terminal Associates (“DTA”)
On March 31, 2017, the Company acquired a portion of another partner’s interest in DTA for $13,293 thereby increasing its ownership in DTA to sixty-five percent. DTA is reliant upon continuous cash contributions from the partners to fund its operating costs. The Company’s cash contributions totaled $5,691 for the year ended December 31, 2017 . The capital contributions which increase the capital accounts of the respective partners are a form of future subordinated financial support required by DTA to finance its activities. As a result, the Company has concluded DTA does not have sufficient equity investment to finance its activities without the support from the equity partners and is a variable interest entity. Prior to the purchase of the additional interest in DTA, no single party held a majority ownership interest in DTA. After the transaction, there are two remaining owners and Contura holds a sixty-five percent voting ownership interest in DTA.  However, two representatives must be present for business to be conducted and consent and unanimous approval of both the members is required for decisions to be taken. Further, there are no provisions that allow either party to override or otherwise unilaterally make a decision. As a result, the Company has concluded that it does not have the power to direct the activities that most significantly impact its economic performance and therefore is not the primary beneficiary. Accordingly, the Company continues to apply the equity method of accounting.
The Company recorded equity method losses, before taxes, from DTA of ($3,339), ($2,287), ($2,735) and ($7,154) for the year ended December 31, 2017, the period from July 26, 2016 to December 31, 2016, for the period January 1, 2016 to July 25, 2016 and for the year ended December 31, 2015, respectively, which are reflected within miscellaneous income, net in the Statements of Operations. As of December 31, 2017 and 2016, the Company’s investment in DTA was $16,095 and $172, respectively, and is recorded within other non-current assets within the Balance Sheets.
Condensed balance sheet information as of December 31, 2017 and December 31, 2016 and condensed income statement information for the year ended December 31, 2017 , the period from July 26, 2016 to December 31, 2016 , the period from January 1, 2016 to July 25, 2016 , and the year ended December 31, 2015 for DTA is presented in the tables that follow.
 
Successor
 
December 31,
2017
 
December 31,
2016
Current assets
$
5,960

 
$
3,453

Non-current assets
$
59,868

 
$
63,630

Current liabilities
$
1,530

 
$
1,397

Non-current liabilities
$
6,476

 
$
7,147

Partners’ equity
$
57,822

 
$
58,538

 
Successor
 
 
Predecessor
 
Year Ended December 31, 2017
 
Period from
July 26, 2016 to December 31, 2016
 
 
Period from January 1, 2016 to July 25, 2016
 
Year Ended December 31, 2015
Operating expenses
$
26,893

 
$
9,792

 
 
$
12,271

 
$
28,187

Other income, net
$
(16,875
)
 
$
(3,683
)
 
 
$
(5,032
)
 
$
(10,720
)
Total expenses, net
$
10,018

 
$
6,109

 
 
$
7,239

 
$
17,467

Contributions from partners to fund continuing operations
$
9,302

 
$
6,243

 
 
$
4,883

 
$
14,953

Expenses (over)/under contributions
$
(716
)
 
$
134

 
 
$
(2,356
)
 
$
(2,514
)
Depreciation and amortization
$
5,147

 
$
1,223

 
 
$
2,413

 
$
4,590


F-69
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

(28) Quarterly Financial Information (Unaudited)
 
Successor
 
Year Ended December 31, 2017
 
First Quarter (1)
 
Second Quarter
 
Third Quarter
 
Fourth Quarter
Total revenues
$
475,119

 
$
439,668

 
$
382,537

 
$
352,645

Net income (loss) from continuing operations
$
30,956

 
$
18,399

 
$
9,730

 
$
114,650

Net income (loss) from discontinued operations
$
4,154

 
$
(5,788
)
 
$
429

 
$
(18,008
)
Net income (loss)
$
35,110


$
12,611


$
10,159


$
96,642

 
 
 
 
 
 
 
 
Weighted average shares - basic
10,309,428

 
10,309,612

 
10,277,974

 
9,971,877

Weighted average shares - diluted
10,728,281

 
10,874,175

 
10,896,856

 
10,583,744

 
 
 
 
 
 
 
 
Basic (loss) income per share:
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
3.00

 
$
1.78

 
$
0.95

 
$
11.50

Income (loss) from discontinued operations
$
0.41

 
$
(0.56
)
 
$
0.04

 
$
(1.81
)
Net income (loss)
$
3.41

 
$
1.22

 
$
0.99

 
$
9.69

 
 
 
 
 
 
 
 
Diluted (loss) income per share:
 
 
 
 
 
 
 
Income (loss) from continuing operations
$
2.89

 
$
1.69

 
$
0.89

 
$
10.83

Income (loss) from discontinued operations
$
0.38

 
$
(0.53
)
 
$
0.04

 
$
(1.70
)
Net income (loss)
$
3.27

 
$
1.16

 
$
0.93

 
$
9.13

______________
(1)
As adjusted for the adoption of ASU 2017-11. See Note 18.

F-70
CONTURA ENERGY, INC. AND SUBSIDIARIES AND PREDECESSOR
Notes to Consolidated Financial Statements
(Amounts in thousands except share and per share data)

 
Predecessor
 
 
Successor
 
Period from January 1, 2016 to July 25, 2016
 
 
Period from July 26, 2016 to
December 31, 2016
 
First Quarter
 
Second Quarter
 
Period from
July 1, 2016 to July 25, 2016
 
 
Period from
July 26, 2016 to September 30, 2016
 
Fourth Quarter
Total revenues
$
172,143

 
$
187,150

 
$
51,818

 
 
$
164,471

 
$
341,825

Net income (loss) from continuing operations
$
(23,969
)
 
$
(23,959
)
 
$
(13,613
)
 
 
$
(49,814
)
 
$
37,968

Net income (loss) from discontinued operations
$
(8,674
)
 
$
(3,647
)
 
$
6,650

 
 
$
4,018

 
$
(3,102
)
Net income (loss)
$
(32,643
)
 
$
(27,606
)
 
$
(6,963
)
 
 
$
(45,796
)
 
$
34,866

 
 
 
 
 
 
 
 
 
 
 
Weighted average shares - basic
 
 
 
 
 
 
 
10,309,310

 
10,309,310

Weighted average shares - diluted
 
 
 
 
 
 
 
10,309,310

 
10,747,134

 
 
 
 
 
 
 
 
 
 
 
Basic (loss) income per share:
 
 
 
 
 
 
 
 
 
 
Income (loss) from continuing operations
 
 
 
 
 
 
 
$
(4.83
)
 
$
3.68

Income (loss) from discontinued operations
 
 
 
 
 
 
 
$
0.39

 
$
(0.30
)
Net income (loss)
 
 
 
 
 
 
 
$
(4.44
)
 
$
3.38

 
 
 
 
 
 
 
 
 
 
 
Diluted (loss) income per share:
 
 
 
 
 
 
 
 
 
 
Income (loss) from continuing operations
 
 
 
 
 
 
 
$
(4.83
)
 
$
3.53

Income (loss) from discontinued operations
 
 
 
 
 
 
 
$
0.39

 
$
(0.29
)
Net income (loss)
 
 
 
 
 
 
 
$
(4.44
)
 
$
3.24

(29) Subsequent Events
The Company’s subsequent events have been evaluated through March 29, 2018, the date at which the Consolidated Financial Statements were available to be issued. There were no subsequent events that need disclosure.

F-71


 
 
CONTURA ENERGY, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in thousands, except share and per share data)
 
Six Months Ended June 30,
 
2018
 
2017
Revenues:
 

 
 

Coal revenues
$
1,003,533

 
$
780,900

Freight and handling revenues
—

 
129,919

Other revenues
7,717

 
3,968

Total revenues
1,011,250

 
914,787

Costs and expenses:
 

 
 

Cost of coal sales (exclusive of items shown separately below)
629,128

 
571,320

Freight and handling costs
176,976

 
129,919

Depreciation, depletion and amortization
22,810

 
17,788

Amortization of acquired intangibles, net
11,310

 
34,243

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
31,108

 
40,148

Merger related costs
3,883

 
—

Secondary offering costs
—

 
3,438

Total other operating (income) loss:
 
 
 
Gain on disposal of assets
(16,502
)
 
—

Mark-to-market adjustment for acquisition-related obligations
—

 
2,382

Gain on settlement of acquisition-related obligations
(292
)
 
(9,200
)
Other expenses
288

 
81

Total costs and expenses
858,709

 
790,119

Income from operations
152,541

 
124,668

Other income (expense):
 

 
 

Interest expense
(17,984
)
 
(19,614
)
Interest income
322

 
73

Loss on early extinguishment of debt
—

 
(38,701
)
Equity loss in affiliates
(1,233
)
 
(1,709
)
Bargain purchase gain
—

 
642

Miscellaneous income, net
(583
)
 
(192
)
Total other expense, net
(19,478
)
 
(59,501
)
Income from continuing operations before income taxes
133,063

 
65,167

Income tax expense
(121
)
 
(15,811
)
Net income from continuing operations
132,942

 
49,356

Discontinued operations:
 
 
 
Loss from discontinued operations before income taxes
$
(2,213
)
 
$
(4,000
)
Income tax benefit from discontinued operations
$
—

 
$
2,366

Loss from discontinued operations
$
(2,213
)
 
$
(1,634
)
Net income
$
130,729

 
$
47,722


F-72


 
 
 
 
Basic income (loss) per common share:
 
 
 
Income from continuing operations
$
13.87

 
$
4.79

Loss from discontinued operations
$
(0.23
)
 
$
(0.16
)
Net income
$
13.64

 
$
4.63

 
 
 
 
Diluted income (loss) per common share
 
 
 
Income from continuing operations
$
12.91

 
$
4.57

Loss from discontinued operations
$
(0.22
)
 
$
(0.15
)
Net income
$
12.69

 
$
4.42

 
 
Weighted average shares - basic
9,587,457

 
10,309,520

Weighted average shares - diluted
10,299,539

 
10,801,228

See accompanying Notes to Condensed Consolidated Financial Statements.


F-73


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Unaudited)
(Amounts in thousands)
 
Six Months Ended June 30,
 
2018
 
2017
Net income
$
130,729

 
$
47,722

Other comprehensive loss, net of tax:
 
 
 
Employee benefit plans:
 
 
 
Amortization of and adjustments to employee benefit costs
$
(50
)
 
$
(1,018
)
Income tax
—

 
—

Total other comprehensive loss, net of tax
$
(50
)
 
$
(1,018
)
Total comprehensive income
$
130,679

 
$
46,704

See accompanying Notes to Condensed Consolidated Financial Statements.


F-74


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (Unaudited)
(Amounts in thousands, except share and per share data)
 
June 30,
2018
 
December 31, 2017
Assets
 

 
 

Current assets:
 

 
 

Cash and cash equivalents
$
199,252

 
$
141,924

Trade accounts receivable, net of allowance for doubtful accounts of $0 as of June 30, 2018 and December 31, 2017
168,310

 
127,326

Inventories, net
74,464

 
69,561

Assets held for sale
—

 
171

Short-term restricted cash
11,680

 
11,615

Short-term deposits
6,619

 
12,366

Prepaid expenses and other current assets
43,054

 
59,693

Current assets - discontinued operations
26,231

 
40,498

Total current assets
529,610

 
463,154

Property, plant, and equipment, net
207,805

 
196,579

Other acquired intangibles, net of accumulated amortization of $3,851 and $28,662 as of June 30, 2018 and December 31, 2017
7,149

 
18,458

Long-term restricted cash
35,240

 
40,421

Long-term deposits
9,238

 
3,607

Deferred income taxes
78,744

 
78,744

Other non-current assets
34,285

 
28,005

Non-current assets - discontinued operations
—

 
7,632

Total assets
$
902,071

 
$
836,600

Liabilities and Stockholders’ Equity
 

 
 

Current liabilities:
 

 
 

Current portion of long-term debt
$
5,435

 
$
10,730

Trade accounts payable
74,000

 
76,319

Acquisition-related obligations - current
13,788

 
15,080

Liabilities held for sale
1,305

 
27,161

Accrued expenses and other current liabilities
56,615

 
58,771

Current liabilities - discontinued operations
26,138

 
54,114

Total current liabilities
177,281

 
242,175

Long-term debt
361,649

 
361,973

Acquisition-related obligations - long-term
20,852

 
20,332

Asset retirement obligations
55,313

 
52,434

Other non-current liabilities
61,748

 
59,276

Non-current liabilities - discontinued operations
82

 
7,762

Total liabilities
676,925

 
743,952

Commitments and Contingencies (Note 18)
 
 
 

F-75


Stockholders’ Equity
 
 
 
Preferred stock - par value $0.01, 2.0 million shares authorized, none issued
—

 
—

Common stock - par value $0.01, 20.0 million shares authorized, 10.8 million issued and 9.9 million outstanding at June 30, 2018 and 10.7 million issued and 9.9 million outstanding at December 31, 2017
108

 
108

Additional paid-in capital
47,273

 
40,616

Accumulated other comprehensive loss
(1,998
)
 
(1,948
)
Treasury stock, at cost: 0.9 million shares at June 30, 2018 and 0.8 million shares at December 31, 2017
(54,930
)
 
(50,092
)
Retained earnings
234,693

 
103,964

Total stockholders’ equity
225,146

 
92,648

Total liabilities and stockholders’ equity
$
902,071

 
$
836,600

See accompanying Notes to Condensed Consolidated Financial Statements.


F-76


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in thousands)
 
Six Months Ended June 30,
 
2018
 
2017
Operating activities:
 

 
 
Net income
$
130,729

 
$
47,722

Adjustments to reconcile net income to net cash (used in) provided by operating activities:
 
 
 
Depreciation, depletion and amortization
22,810

 
34,277

Amortization of acquired intangibles, net
11,310

 
34,243

Accretion of acquisition-related obligations discount
3,020

 
4,441

Amortization of debt issuance costs and accretion of debt discount
1,499

 
1,206

Mark-to-market adjustment for acquisition-related obligations
—

 
2,382

Gain on settlement of acquisition-related obligations
(292
)
 
(9,200
)
Gain on disposal of assets
(16,502
)
 
(708
)
Bargain purchase gain
—

 
(642
)
Accretion of asset retirement obligations
4,056

 
11,049

Employee benefit plans, net
5,324

 
5,539

Loss on early extinguishment of debt
—

 
38,701

Stock-based compensation
7,125

 
6,598

Equity in loss of affiliates
1,233

 
1,701

Changes in operating assets and liabilities
(54,706
)
 
8,905

Net cash provided by operating activities
115,606

 
186,214

Investing activities:
 
 
 
Capital expenditures
(38,349
)
 
(35,508
)
Payments on disposal of assets
(10,250
)
 
—

Proceeds on disposal of assets
464

 
2,272

Capital contributions to equity affiliates
(525
)
 
(3,090
)
Purchase of additional ownership interest in equity affiliate
—

 
(13,293
)
Other, net
(1,446
)
 
(408
)
Net cash used in investing activities
(50,106
)
 
(50,027
)
Financing activities:
 
 
 
Proceeds from borrowings on debt
—

 
396,000

Principal repayments of debt
(5,323
)
 
(357,500
)
Principal repayments of capital lease obligations
(139
)
 
(504
)
Debt issuance costs
—

 
(14,385
)
Debt extinguishment costs
—

 
(25,036
)
Debt amendment costs
—

 
(4,520
)
Common stock repurchases and related expenses
(4,838
)
 
—

Principal repayments of notes payable
(2,939
)
 
(726
)
Other, net
(49
)
 
11

Net cash used in financing activities
(13,288
)
 
(6,660
)

F-77


Net increase in cash and cash equivalents and restricted cash
52,212

 
129,527

Cash and cash equivalents and restricted cash at beginning of period
193,960

 
171,289

Cash and cash equivalents and restricted cash at end of period
$
246,172

 
$
300,816

 
 
 
 
Supplemental cash flow information:
 
 
 
Cash paid for interest
$
13,431

 
$
27,738

Cash paid for taxes
$
2

 
$
13,110

Cash received for income tax refunds
$
13,457

 
$
—

Supplemental disclosure of non-cash investing and financing activities:
 

 
 

Capital leases and capital financing - equipment
$
344

 
$
283

Accrued capital expenditures
$
4,289

 
$
13,132

Dividend Declaration
$
—

 
$
92,786

The following table provides a reconciliation of cash and cash equivalents and restricted cash reported within the Condensed Consolidated Balance Sheets that sum to the total of the same such amounts shown in the Condensed Consolidated Statements of Cash Flows.
 
Six Months Ended June 30,
 
2018
 
2017
Cash and cash equivalents
$
199,252

 
$
244,019

Short-term restricted cash
11,680

 
—

Long-term restricted cash
35,240

 
56,797

Total cash and cash equivalents and restricted cash shown in the Condensed Consolidated Statements of Cash Flows
$
246,172

 
$
300,816

See accompanying Notes to Condensed Consolidated Financial Statements.


F-78


CONTURA ENERGY, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (Unaudited)
(Amounts in thousands)
 
Common Stock
 
Additional Paid-in Capital
 
Accumulated
Other
Comprehensive Income (Loss)
 
Treasury Stock at Cost
 
(Accumulated Deficit) Retained Earnings
 
Total Stockholders’ Equity
 
Amount
 
 
 
Amount
 
 
Balances, December 31, 2016
$
103

 
$
45,964

 
$
2,087

 
$
—

 
$
(10,930
)
 
$
37,224

Retrospective warrants adjustment
—

 
1,167

 
—

 
—

 
33,975

 
35,142

Net income
—

 
—

 
—

 
—

 
47,722

 
47,722

Other comprehensive loss, net
—

 
—

 
(1,018
)
 
—

 
—

 
(1,018
)
Stock-based compensation and net issuance of common stock for share vesting
4

 
6,594

 
—

 
—

 
—

 
6,598

Special dividend
—

 
(22,019
)
 
—

 
—

 
(70,767
)
 
(92,786
)
Warrant exercises
—

 
208

 
—

 
(1
)
 
—

 
207

Balances, June 30, 2017
$
107

 
$
31,914

 
$
1,069

 
$
(1
)
 
$
—

 
$
33,089

 
 
 
 
 
 
 
 
 
 
 
 
Balances, December 31, 2017
$
108

 
$
40,616

 
$
(1,948
)
 
$
(50,092
)
 
$
103,964

 
$
92,648

Net income
—

 
—

 
—

 
—

 
130,729

 
130,729

Other comprehensive income, net
—

 
—

 
(50
)
 
—

 
—

 
(50
)
Stock-based compensation and net issuance of common stock for share vesting
—

 
6,593

 
—

 
—

 
—

 
6,593

Exercise of stock options
 
 
62

 
 
 
 
 
 
 
62

Common stock repurchases and related expenses
—

 
—

 
—

 
(4,835
)
 
—

 
(4,835
)
Warrant exercises
—

 
2

 
—

 
(3
)
 
—

 
(1
)
Balances, June 30, 2018
$
108

 
$
47,273

 
$
(1,998
)
 
$
(54,930
)
 
$
234,693

 
$
225,146

See accompanying Notes to Condensed Consolidated Financial Statements.


F-79
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)


(1) Business and Basis of Presentation
Business
Contura Energy, Inc. (“Contura”, the “Company”, “we” or “us”) is a Tennessee-based coal supplier with affiliate mining operations across major coal basins in Pennsylvania, Virginia and West Virginia. With customers across the globe, high-quality reserves and significant port capacity, Contura reliably supplies both metallurgical coal to produce steel and thermal coal to generate power. Contura was formed to acquire and operate certain of Alpha Natural Resources, Inc.’s (“Alpha”) core coal operations, as part of the Alpha Restructuring. Contura began operations on July 26, 2016 and currently operates mining complexes in the Northern Appalachia (Cumberland mine complex) and Central Appalachia (the Nicholas mine complex in West Virginia, and the McClure and Toms Creek mine complexes in Virginia) regions.
Basis of Presentation
Together, the condensed consolidated statement of operations, statement of comprehensive income, balance sheet, statement of cash flows and statement of stockholders’ equity for the Company are referred to as the “Financial Statements.” The Financial Statements are also referred to as consolidated and references across periods are generally labeled “Balance Sheets,” “Statements of Operations,” and “Statements of Cash Flows.”
The Condensed Consolidated Financial Statements include all wholly-owned subsidiaries’ results of operations for the six months ended June 30, 2018 and 2017. All significant intercompany transactions have been eliminated in consolidation.
On December 8, 2017, the Company closed a transaction with Blackjewel L.L.C. (“Buyer”) to sell the Eagle Butte and Belle Ayr mines located in the Powder River Basin (“PRB”), Wyoming, along with related coal reserves, equipment, infrastructure and other real properties. The PRB results of operations and financial position are reported as discontinued operations in the Condensed Consolidated Financial Statements. The historical information in the accompanying Notes to the Condensed Consolidated Financial Statements has been restated to reflect the effects of the PRB operations being reported as discontinued operations in the Condensed Consolidated Financial Statements. See Note 3 for further information on discontinued operations.
The accompanying Condensed Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”). Results of operations for the six months ended June 30, 2018 are not necessarily indicative of the results to be expected for the year ending December 31, 2018 or any other period. These interim Condensed Consolidated Financial Statements should be read in conjunction with the Company’s Consolidated Financial Statements and related notes for the year ended December 31, 2017.
Reclassifications
Certain amounts in the 2017 Condensed Consolidated Statements of Cash Flows have been reclassified to conform to the current year presentation.
New Accounting Pronouncements
Revenue Recognition: In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2014-09, Revenue from contracts with customers (Topic 606), which, along with amendments issued in 2015 and 2016, will replace substantially all current U.S. GAAP guidance on this topic and eliminate industry-specific guidance. In addition, the standard requires disclosure of the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers. The guidance permits two methods of adoption: full retrospective method (retrospective application to each prior reporting period presented) or modified retrospective method (retrospective application with the cumulative effect of initially applying the guidance recognized at the date of initial application and providing certain additional disclosures). The Company adopted ASU 2014-09 as of January 1, 2018, using the modified retrospective method. The Company applied the guidance only to contracts that were not completed as of the date of adoption, with no cumulative adjustment to retained earnings as a result of the adoption of this guidance. Additionally,

F-80


subsequent to adoption, freight and handling revenues are now classified within coal revenues. The following table summarizes the impact of the adoption of ASC 606 to the Company’s Condensed Consolidated Statements of Operations:
 
Six Months Ended June 30, 2018
 
As reported
 
Adjustments (1)
 
Balances prior to adoption of ASC 606
Revenues:
 

 
 
 
 
Coal revenues
$
1,003,533

 
$
(176,976
)
 
$
826,557

Freight and handling revenues
—

 
176,976

 
176,976

Other revenues
7,717

 
—

 
7,717

Total revenues
$
1,011,250

 
$
—

 
$
1,011,250

______________
(1)
The adjustment represents freight and handling revenues being treated as fulfillments costs and included within coal revenues under ASC 606.

Refer to Note 4 for further disclosure requirements under the new standard.
Financial Instruments: In January 2016, the FASB issued ASU 2016-01, Financial Instruments - Overall (Subtopic 825-10): Recognition and Measurement of Financial Assets and Financial Liabilities (“ASU 2016-01”). The amendments in this update, along with amendments issued in 2018, address certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The Company adopted ASU 2016-01 during the first quarter of 2018. The adoption of this update did not have a material impact on the recognition, measurement, presentation, or disclosure of the Company’s financial instruments.
Leases : In February 2016, the FASB issued ASU 2016-02, Leases . The standard, along with amendments issued in 2017 and 2018, requires a lessee to recognize a right-of-use asset and a lease liability on the balance sheet, with the exception of leases with lease terms of 12 months or less. Additional qualitative disclosures along with specific quantitative disclosures will also be required. The standard is effective for annual reporting periods beginning after December 15, 2019 (December 15, 2018 for public entities), with early adoption permitted. The impact will depend on the Company's lease portfolio at the time of adoption. Management is currently evaluating the impact on the Company's financial statements and related disclosures.
Statement of Cash Flows: In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments . This update addresses whether to present certain specific cash flow items as operating, investing or financing activities. The Company adopted ASU 2016-15 during the first quarter of 2018. The classification requirements under the new guidance are either consistent with the Company’s historical practices or are not applicable to its activities and therefore do not have a material impact on classification of cash receipts and cash payments in the Company’s Statements of Cash Flows.
In November 2016, the FASB issued ASU 2016-18 Statement of Cash Flows (Topic 230): Restricted Cash (“ASU 2016-18”). The amendments in this update provide guidance on restricted cash presentation in the statement of cash flows. The Company adopted ASU 2016-18 during the first quarter of 2018. As a result of this guidance, the Company has combined restricted cash with unrestricted cash and cash equivalents when reconciling the beginning and end of period balances on its Statements of Cash Flows. The amendments also require a company to disclose information about the nature of the restrictions and amounts described as restricted cash and restricted cash equivalents. Such disclosures are included in Note 18.
Business Combinations: In January 2017, the FASB issued ASU 2017-01, Business Combinations (Topic 805): Clarifying the Definition of a Business (“ASU 2017-01”). The amendments in this update provide clarification on the definition of a business to assist entities with evaluating whether transactions should be accounted for as acquisitions of assets or businesses. The new guidance is to be applied prospectively on or after the effective date. The Company adopted ASU 2017-01 during the first quarter of 2018. The adoption of this ASU did not have a material impact on the Company’s financial statements.

F-81


Retirement Benefits: In March 2017, the FASB issued ASU 2017-07, Improving the Presentation of Net Periodic Pension Cost and Net Periodic Post-retirement Benefit Cost . The amendments in this update require that an employer disaggregate the service cost component from the other components of net periodic benefit cost. In addition, only the service cost component will be eligible for capitalization. The new guidance is to be applied retrospectively for income statement effects and prospectively for balance sheet effects. Additionally, the new guidance allows a practical expedient that permits employers to use the amounts disclosed in its pension and other postretirement benefit plan note for the prior comparative periods as the estimation basis for applying the retrospective presentation requirements. The Company adopted ASU 2017-07 during the first quarter of 2018, electing to use the practical expedient as the estimation basis for applying the retrospective presentation requirements. The retrospective application resulted in a $418 reduction in cost of coal sales with the corresponding offset to miscellaneous income, net for the six months ended June 30, 2017.
Stock Compensation: In May 2017, the FASB issued ASU 2017-09, Compensation - Stock Compensation (Topic 718): Scope of Modification Accounting (“ASU 2017-09”). The amendments in this update provide clarification on which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting under Topic 718. The new guidance is to be applied prospectively on or after the adoption date. The Company adopted ASU 2017-09 during the first quarter of 2018. The adoption of this ASU did not have a material impact on the Company’s financial statements.
In June 2018, the FASB included ASU 2018-07, Compensation - Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting (“ASU 2018-07”). The amendments in this update expand the scope of Topic 718 to include share-based payment transactions for acquiring goods and services from nonemployees. The standard is effective for fiscal years beginning after December 15, 2019 (December 15, 2018 for public entities), with early adoption permitted. The adoption of this ASU is not expected to have a material impact on the Company's financial statements and related disclosures.
(2) Mergers and Acquisitions
Mergers with Alpha Natural Resources Holdings, Inc. and ANR, Inc.
On April 29, 2018, Contura, along with ANR, Inc. (“ANR”) and Alpha Natural Resources Holdings, Inc. (“Holdings”, and, together with ANR, the “Alpha Companies”), entered into a definitive merger agreement (the “Merger Agreement”) providing for an all-stock transaction. The transaction, which has been unanimously approved by the boards of directors of all parties, is expected to close prior to year-end 2018, subject to ANR and Holdings stockholder approval and the satisfaction of other customary conditions.
As a result of the transaction and subject to the terms and conditions of the Merger Agreement, each outstanding share of Class C-1 common stock of ANR and each outstanding share of common stock of Holdings will be converted into the right to receive 0.4071 shares of Contura’s common stock, representing approximately 46.5% ownership in the merged entity based on current capital structures. Each outstanding share of Class C-2 common stock of ANR (held exclusively by Holdings) will be canceled.
ANR is required to pay Contura a termination fee of $19,000 under certain circumstances and is also required to reimburse Contura for fees and expenses incurred in connection with the transaction contemplated by the Merger Agreement if the Merger Agreement is terminated because stockholder approval is not obtained at the Holdings and ANR special meetings. This reimbursement is limited to $9,000, which would be credited against the termination fee to be paid by ANR. Contura is also required to pay ANR a termination fee of $19,000 under certain circumstances.
The completion of the transaction was subject to compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). However, Contura and the Alpha Companies received early termination of the applicable waiting period under the HSR Act on July 2, 2018.
The Company incurred expenses of $3,883 in connection with the merger for the six months ended June 30, 2018.
On July 16, 2018, Contura, along with the Alpha Companies, announced the confidential submission by Contura of a registration statement on Form S-4 with the U.S. Securities and Exchange Commission (the “SEC”) relating to the previously announced proposed merger between the companies. Contura expects to list its common stock on the New York Stock

F-82
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

Exchange upon consummation of the transactions contemplated by the Merger Agreement. Contura shares currently trade on the OTC market.
This initial submission is preliminary. A revised Form S-4, including a joint proxy statement for the Alpha Companies special meetings and prospectus, containing updated information will be filed and available on the SEC’s website prior to any vote by the Alpha Companies stockholders on the proposed transaction.
As of June 30, 2018, the Company capitalized $1,991 of expenses incurred in connection with the submission of the Form S-4 related to (i) legal fees for drafting the registration statement and other legal advice directly related to the registration statement, (ii) financial reporting advisory fees directly related to the registration statement including preparation of the pro forma financial statements and other financial information included in the registration statement and (iii) and other registration related fees.
(3) Discontinued Operations
The discontinued operations include the Company’s former PRB segment. On December 8, 2017, the Company closed a transaction (“PRB Transaction”) to sell the Eagle Butte and Belle Ayr mines located in the PRB. During the permit transfer period, the Company will maintain the required reclamation bonds and related collateral. Once the permits have been transferred, the Company estimates approximately $12,600 comprised of short-term restricted cash and short-term deposits will be returned to operating cash. If the permit transfer process is not completed as expected, it could have material, adverse effects on the Company.
The major components of net income (loss) from discontinued operations in the Condensed Consolidated Statements of Operations are as follows:
 
Six Months Ended June 30,
 
2018
 
2017
Revenues:
 

 
 
Total revenues (1)
$
1,115

 
$
172,457

Costs and expenses:
 
 
 
Cost of coal sales (exclusive of items shown separately below)
$
—

 
$
157,470

Depreciation, depletion and amortization
$
—

 
$
16,489

Other expenses
$
2,402

 
$
—

Other non-major (income) expense items, net
$
926

 
$
2,498

______________
(1)
Total revenues for the six months ended June 30, 2018 consisted entirely of other revenues.


F-83
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

The major components of asset and liabilities that are classified as discontinued operations in the Condensed Consolidated Balance Sheets are as follows:
 
June 30, 2018
 
December 31, 2017
Assets:
 

 
 

Accounts Receivable
$
3,519

 
$
20,443

Prepaid expenses and other current assets
$
22,712

 
$
18,974

Other current assets
$
—

 
$
1,081

Other non-current assets
$
—

 
$
7,632

 
 
 
 
Liabilities:
 

 
 

Trade accounts payable, accrued expenses and other current liabilities
$
26,138

 
$
54,114

Other non-current liabilities
$
82

 
$
7,762

As of June 30, 2018, the residual assets and liabilities related to the discontinued operations are primarily comprised of taxes for which Contura is considered to be the primary obligor and for which the Buyer is contractually obligated to pay. The Company has recorded the taxes as a liability with an offsetting receivable from the Buyer.
The major components of cash flows related to discontinued operations are as follows:
 
Six Months Ended June 30,
 
2018
 
2017
Depreciation, depletion and amortization
$
—

 
$
16,489

Capital expenditures
$
—

 
$
5,052

Other significant operating non-cash items related to discontinued operations:
 
 
 
Accretion of asset retirement obligations
$
—

 
$
6,044

(4) Revenue
Revenue Recognition Accounting Policy
The Company adopted ASC 606, with a date of initial application of January 1, 2018, using the modified retrospective method. As a result, the Company has changes to its accounting policy for revenue recognition as outlined below.
Subsequent to the adoption of ASC 606, the Company measures revenue based on the consideration specified in a contract with a customer and recognizes revenue as a result of satisfying its promise to transfer goods or services in a contract with a customer using the following general revenue recognition five-step model: (1) identify the contract; (2) identify performance obligations; (3) determine transaction price; (4) allocate transaction price; (5) recognize revenue. Freight and handling costs paid to third-party carriers and invoiced to coal customers are recorded as freight and handling costs and freight and handling fulfillment revenues within coal revenues, respectively.
Disaggregation of Revenue from Contracts with Customers
ASC 606 requires that entities disclose disaggregated revenue information in categories (such as type of good or service, geography, market, type of contract, etc.) that depict how the nature, amount, timing, and uncertainty of revenue and cash flow are affected by economic factors. ASC 606 explains that the extent to which an entity’s revenue is disaggregated depends on the facts and circumstances that pertain to the entity’s contracts with customers and that some entities may need to use more than one type of category to meet the objective for disaggregating revenue.
The Company earns revenues primarily through the sale of coal produced at Company operations and coal purchased from third parties. The Company extracts, processes and markets steam and met coal from surface and deep mines for sale to

F-84
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

electric utilities, steel and coke producers, and industrial customers. The Company conducts mining operations only in the United States with mines in Northern and Central Appalachia. The Company has three reportable segments: CAPP, NAPP and Trading and Logistics. In addition to the three reportable segments, the All Other category includes general corporate overhead and corporate assets and liabilities, the elimination of certain intercompany activity, and the Company’s discontinued operations. See Note 19 for further segment information.
The following tables disaggregate the Company’s coal revenues by segment and by met and steam coal to depict how the nature, amount, timing, and uncertainty of the Company’s coal revenues and cash flows are affected by economic factors:
 
Six Months Ended June 30, 2018
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Steam
$
1,893

 
$
110,091

 
$
—

 
$
—

 
$
111,984

Met
284,830

 
22,075

 
407,668

 
—

 
714,573

Freight and handling fulfillment revenues
—

 
—

 
176,976

 
—

 
176,976

Total coal revenues
$
286,723

 
$
132,166

 
$
584,644

 
$
—

 
$
1,003,533

 
Six Months Ended June 30, 2017
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Steam
$
1,326

 
$
164,929

 
$
—

 
$
—

 
$
166,255

Met
258,649

 
10,072

 
345,924

 
—

 
614,645

Total coal revenues
$
259,975

 
$
175,001

 
$
345,924

 
$
—

 
$
780,900

 
 
 
 
 
 
 
 
 
 
Freight and handling revenues
$
—

 
$
—

 
$
129,919

 
$
—

 
$
129,919

Performance Obligations
The Company considers each individual transfer of coal on a per shipment basis to the customer a performance obligation. The pricing terms of the Company’s contracts with customers include fixed pricing, variable pricing, or a combination of both fixed and variable pricing. All the Company’s revenue derived from contracts with customers is recognized at a point in time. The following table includes estimated revenue expected to be recognized in the future related to performance obligations that are unsatisfied as of June 30, 2018.
 
Remainder of 2018
 
2019
 
2020
 
2021
 
2022
 
2023
 
Total
Estimated coal revenues (1)
$
109,433

 
$
141,422

 
$
115,010

 
$
78,390

 
$
69,944

 
$
84,268

 
$
598,467

______________
(1)
Amounts only include estimated coal revenues associated with contracts with customers with fixed pricing with original expected duration of more than one year. The Company has elected to not disclose the aggregate amount of the transaction price allocated to the performance obligations that are unsatisfied (or partially unsatisfied) as of the end of the reporting period for performance obligations with either of the following conditions: 1) the remaining performance obligation is part of a contract that has an original expected duration of one year or less; or 2) the remaining performance obligation has variable consideration that is allocated entirely to a wholly unsatisfied performance obligation.


F-85
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

Contract Balances
The Company receives prepayments under certain contracts with customers based on contract payment terms and the timing of shipments. These amounts are recognized within revenues upon satisfaction of the related performance obligations. The following table includes the opening and closing balances of contract liabilities from contracts with customers, which are included within accrued expenses and other current liabilities on the Company’s Condensed Consolidated Balance Sheets:
 
June 30,
2018
 
December 31,
2017
Contract Liabilities (1)
$
403

 
$
—

______________
(1)
Amounts primarily relate to customer prepayments under coal contracts.

(5) Accumulated Other Comprehensive (Loss) Income
The following tables summarize the changes to accumulated other comprehensive income (loss) during the six months ended June 30, 2018 and 2017:
 
Balance
January 1, 2018
 
Other comprehensive income (loss) before reclassifications
 
Amounts reclassified from accumulated other comprehensive income (loss)
 
Balance
June 30, 2018
Employee benefit costs
$
(1,948
)
 
$
(128
)
 
$
78

 
$
(1,998
)
 
Balance
January 1, 2017
 
Other comprehensive income (loss) before reclassifications
 
Amounts reclassified from accumulated other comprehensive income (loss)
 
Balance
June 30, 2017
Employee benefit costs
$
2,087

 
$
(917
)
 
$
(101
)
 
$
1,069

The following table summarizes the amounts reclassified from accumulated other comprehensive income (loss) and the Statements of Operations line items affected by the reclassification during the six months ended June 30, 2018 and 2017:
Details about accumulated other comprehensive income (loss) components
Amounts reclassified from accumulated other comprehensive (loss) income

 
Affected line item in the Statements of Operations
Six Months Ended June 30,
 
2018
 
2017
 
Employee benefit costs:
 
 
 
 
 
Amortization of actuarial loss (gain)
$
78

 
$
(101
)
 
(1) Miscellaneous income
Income tax benefit (expense)
—

 
—

 
Income tax expense
Total, net of income tax
$
78

 
$
(101
)
 
 
______________
(1)
These accumulated other comprehensive income (loss) components are included in the computation of net periodic benefit costs for black lung and life insurance. See Note 15.

(6) Earnings (Loss) Per Share
The number of shares used to calculate basic earnings per common share is based on the weighted average number of the Company’s outstanding common shares during the respective period. The number of shares used to calculate diluted earnings per common share is based on the number of common shares used to calculate basic earnings per share plus the dilutive effect of stock options and other stock-based instruments held by the Company’s employees and directors during the period, and the Company’s outstanding Series A warrants. The warrants become dilutive for earnings per common share calculations when the market price of the Company’s common stock exceeds the exercise price. For the six months ended June 30, 2018,

F-86
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

129,520 stock options were excluded from the computation of dilutive earnings per share because they would have been anti-dilutive. For the six months ended June 30, 2017, 129,520 stock options and 217,314 other stock based instruments were excluded from the computation of dilutive earnings per share because they would have been anti-dilutive. These potential shares could dilute earnings per share in the future.
The following table presents the net income (loss) per common share for the six months ended June 30, 2018 and 2017:
 
Six Months Ended June 30,
 
2018
 
2017
Net income
 
 
 
Income from continuing operations
$
132,942

 
$
49,356

Loss from discontinued operations
(2,213
)
 
(1,634
)
Net income
$
130,729

 
$
47,722

 
 
 
 
Basic
 
 
 
Weighted average common shares outstanding - basic
9,587,457

 
10,309,520

 
 
 
 
   Basic income (loss) per common share:
 
 
 
  Income from continuing operations
$
13.87

 
$
4.79

Loss from discontinued operations
(0.23
)
 
(0.16
)
  Net income
$
13.64

 
$
4.63

 
 
 
 
Diluted
 
 
 
Weighted average common shares outstanding - basic
9,587,457

 
10,309,520

Diluted effect of warrants
253,795

 
148,978

Diluted effect of stock options
268,364

 
275,355

Diluted effect of restricted share units and restricted stock shares
189,923

 
67,375

Weighted average common shares outstanding - diluted
10,299,539

 
10,801,228

 
 
 
 
   Diluted income (loss) per common share:
 
 
 
   Income from continuing operations
$
12.91

 
$
4.57

Loss from discontinued operations
(0.22
)
 
(0.15
)
   Net income
$
12.69

 
$
4.42

(7) Inventories, net
Inventories, net consisted of the following: 
 
June 30, 2018
 
December 31, 2017
Raw coal
$
9,905

 
$
7,003

Saleable coal
57,116

 
55,357

Materials, supplies and other, net
7,443

 
7,201

Total inventories, net
$
74,464

 
$
69,561


F-87
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

(8) Dividend
The Company entered into the First Amendment to the Asset-Based Revolving Credit Agreement on June 9, 2017 and the First Amendment to Term Loan Credit Agreement on June 13, 2017. The amendments, among other things, permitted an aggregate amount of $150,000 of cash to be used for the (i) payment of a one-time cash dividend on its common stock no later than July 28, 2017, and (ii) repurchase of its common stock at any time no later than December 31, 2017, subject to certain terms and conditions.
On June 16, 2017, the Company declared a special cash distribution of approximately $92,786 in the aggregate (the “Special Dividend”), payable to eligible holders of record of its common stock as of the close of business on July 5, 2017. In addition, pursuant to the terms of the Company’s management incentive plan, dividend equivalent payments of approximately $7,949 in the aggregate (including the amounts payable with respect to each share underlying outstanding stock option awards and restricted stock unit awards and outstanding restricted common stock under the MIP) were paid to plan participants. The dividend equivalent payments were made on July 11, 2017, and the Special Dividend was paid on July 12, 2017. Pursuant to terms of the debt amendments, the Company made an offer to all Term Loan Credit Facility lenders to repay the loans at par concurrently with the payment of the Special Dividend, in an aggregate principal amount equal to $10,000. All the Term Loan Facility lenders accepted the offer, and the Company repaid $10,000 on July 13, 2017.
(9) Long-Term Debt
Long-term debt consisted of the following: 
 
June 30, 2018
 
December 31, 2017
Term Loan Credit Facility - due March 2024
$
381,677

 
$
387,000

LC Facility
—

 
—

Other
2,273

 
3,768

Debt discount and issuance costs
(16,866
)
 
(18,065
)
Total long-term debt
367,084

 
372,703

Less current portion
(5,435
)
 
(10,730
)
Long-term debt, net of current portion
$
361,649

 
$
361,973

Term Loan Credit Facility
On March 17, 2017, the Company entered into a Credit Agreement with Jefferies Finance LLC, as administrative agent and collateral agent, and the other lenders party thereto (as defined therein) that provides for a term loan facility (the “Term Loan Credit Facility”) in an aggregate amount of $400,000 with a maturity date of March 17, 2024. Principal repayments equal to $1,000 are due each March, June, September and December (commencing with June 30, 2017) with the final principal repayment installment repaid on the maturity date and in any event shall be in an amount equal to the aggregate principal amount outstanding on such date. The Term Loan Credit Facility bears an interest rate per annum based on the character of the loan (defined as either “Base Rate Loan” or “Eurocurrency Rate Loan”) plus an applicable rate of 4.00% to 5.00% depending on loan type (the “Applicable Rate”), payable bi-monthly in arrears. As of June 30, 2018, the Term Loan Credit Facility was classified as a Eurocurrency Rate Loan with an interest rate of 7.10%, calculated as the eurocurrency rate during the period plus an applicable rate of 5.00%.
The Term Loan Credit Facility, as amended on June 13, 2017, and related documents contain negative and affirmative covenants including certain financial covenants. The Company was in compliance with all covenants under these agreements as of June 30, 2018.
All obligations under the Term Loan Credit Facility are unconditionally guaranteed by the Company’s existing wholly owned domestic subsidiaries, and are required to be guaranteed by the Company’s future wholly owned domestic subsidiaries. Certain obligations under the Term Loan Credit Facility are secured by a senior lien, subject to certain exceptions (including the ABL Priority Collateral described below), by substantially all of our assets and the assets of our

F-88
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

subsidiary guarantors (“Term Loan Priority Collateral”), in each case subject to exceptions. The obligations under the Term Loan Credit Facility are also secured by a junior lien, again subject to certain exceptions, against the ABL Priority Collateral.
Asset-Based Revolving Credit Agreement
On April 3, 2017, the Company entered into an Asset-Based Revolving Credit Agreement with Citibank N.A. as administrative agent, collateral agent, and swingline lender and the other lenders party thereto (the “Lenders”), and Citibank N.A., BMO Harris Bank N.A. and Credit Suisse AG as letter of credit issuers (“LC Lenders”). The Asset-Based Revolving Credit Agreement includes a senior secured asset-based revolving credit facility (the “ABL Facility”). Under the ABL Facility, the Company may borrow cash from the Lender or cause the LC Lenders to issue letters of credit, on a revolving basis, in an aggregate amount of up to $125,000, of which no more than $80,000 may be drawn through letters of credit. Any borrowings under the ABL Facility will have a maturity date of April 4, 2022 and will bear interest based on the character of the loan (defined as either “Base Rate Loan” or “Eurocurrency Rate Loan”) plus an applicable rate ranging from 1.00% to 1.50% for Base Rate Loans and 2.00% to 2.50% for Eurocurrency Rate Loans, depending on the amount of credit available. Any letters of credit issued under the ABL Facility will bear a commitment fee rate ranging from 0.25% to 0.375% depending on the amount of availability per terms of the agreement, and a 0.25% fronting fee payable to the ABL Facility’s administrative agent. The Asset-Based Revolving Credit Agreement provides that a specified percentage of billed, unbilled and approved foreign receivables and raw and clean inventory meeting certain criteria are eligible to be counted for purposes of collateralizing the amount of financing available, subject to certain terms and conditions. As of June 30, 2018, the Company had $0 borrowings and $9,900 letters of credit outstanding under the ABL Facility.
The Asset-Based Revolving Credit Agreement, as amended on June 9, 2017, and related documents contain negative and affirmative covenants including certain financial covenants. The Company was in compliance with all covenants under these agreements as of June 30, 2018.
The obligations under the ABL Facility are secured by a senior lien, subject to certain exceptions by collateral generally described as receivables, inventory, as-extracted collateral and deposit accounts (“ABL Priority Collateral”). The obligations under the ABL Facility are also secured by a junior lien, again subject to certain exceptions, against the Term Loan Priority Collateral.
Capital Leases
The Company entered into capital leases for certain property and other equipment during 2018 and 2017. The Company’s liability for capital leases totaled $647 and $426, with $309 and $226 reported within the current portion of long-term debt as of June 30, 2018 and December 31, 2017, respectively.
(10) Acquisition-Related Obligations
The Company entered into various settlement agreements with Alpha and/or the Alpha bankruptcy successor ANR, Inc. (“ANR”) and third parties as part of the Alpha bankruptcy reorganization process. The Company assumed acquisition-related obligations through those settlement agreements which became effective on July 26, 2016, the effective date of Alpha’s plan of reorganization.

F-89
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

Acquisition-related obligations consisted of the following:
 
June 30, 2018
 
December 31, 2017
Retiree Committee VEBA Funding Settlement Liability
$
3,500

 
$
7,000

UMWA Funds Settlement Liability
7,000

 
7,000

Reclamation Funding Liability
32,000

 
32,000

Other
288

 
580

Discount
(8,148
)
 
(11,168
)
Total acquisition-related obligations - long-term
34,640

 
35,412

Less current portion
(13,788
)
 
(15,080
)
Acquisition-related obligations, net of current portion
$
20,852

 
$
20,332

(11) Asset Retirement Obligations
The following table summarizes the changes in asset retirement obligations for the six months ended June 30, 2018:
Total asset retirement obligations at December 31, 2017
$
59,205

Accretion for the period
3,130

Revisions in estimated cash flows
777

Expenditures for the period
(924
)
Reclassify liabilities held for sale
(1,279
)
Total asset retirement obligations at June 30, 2018
60,909

Less current portion
(5,596
)
Long-term portion
$
55,313

(12) Fair Value of Financial Instruments and Fair Value Measurements
The estimated fair values of financial instruments are determined based on relevant market information. These estimates involve uncertainty and cannot be determined with precision.
The carrying amounts for cash and cash equivalents, trade accounts receivable, net, prepaid expenses and other current assets, short-term and long-term restricted cash, short-term and long-term deposits, trade accounts payable, and accrued expenses and other current liabilities approximate fair value as of June 30, 2018 and December 31, 2017 due to the short maturity of these instruments.
The following tables set forth by level, within the fair value hierarchy, the Company’s long-term debt at fair value as of June 30, 2018 and December 31, 2017:
 
June 30, 2018
 
Carrying
Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Term Loan Credit Facility - due March 2024
$
364,812

 
$
364,812

 
$
364,812

 
$
—

 
$
—


F-90
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

 
December 31, 2017
 
Carrying
Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Term Loan Credit Facility - due March 2024
$
368,935

 
$
363,401

 
$
363,401

 
$
—

 
$
—

______________
(1)
Net of debt discounts and debt issuance costs.

The following tables set forth by level, within the fair value hierarchy, the Company’s acquisition-related obligations at fair value as of June 30, 2018 and December 31, 2017:
 
June 30, 2018
 
Carrying
Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Retiree Committee VEBA Funding
Settlement Liability
$
3,051

 
$
3,330

 
$
—

 
$
—

 
$
3,330

UMWA Funds Settlement Liability
4,790

 
6,002

 
—

 
—

 
6,002

Reclamation Funding Liability
26,511

 
29,706

 
—

 
—

 
29,706

Total acquisition-related obligations
$
34,352

 
$
39,038

 
$
—

 
$
—

 
$
39,038

 
December 31, 2017
 
Carrying
Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Retiree Committee VEBA Funding
Settlement Liability
$
6,290

 
$
6,692

 
$
—

 
$
—

 
$
6,692

UMWA Funds Settlement Liability
4,366

 
5,654

 
—

 
—

 
5,654

Reclamation Funding Liability
24,176

 
28,365

 
—

 
—

 
28,365

Total acquisition-related obligations
$
34,832

 
$
40,711

 
$
—

 
$
—

 
$
40,711

______________
(1)
Net of discounts.

The Company held no financial or non-financial assets and liabilities that were accounted for at fair value on a recurring basis as of June 30, 2018.
The following methods and assumptions were used to estimate the fair values of the assets and liabilities in the tables above.
Level 1 Fair Value Measurements
Term Loan Credit Facility - due March 2024 - The fair value is based on observable market data.
Level 3 Fair Value Measurements
Retiree Committee VEBA Funding Settlement Liability, UMWA Funds Settlement Liability, and Reclamation Funding Liability - Observable transactions are not available to aid in determining the fair value of these items. Therefore, the fair value was derived by using the expected present value approach in which estimated cash flows are discounted using a risk-free interest rate adjusted for market risk.

F-91
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

(13) Warrants
On July 26, 2016 (the “Initial Issue Date”), the Company issued 810,811 warrants, each with an initial exercise price of $55.93 per share of common stock and exercisable for one share of the Company’s common stock, par value $0.01 per share. The warrants are exercisable for cash or on a cashless basis at any time from the Initial Issue Date until July 26, 2023. As of June 30, 2018, the Company’s warrants valued at approximately $1,154 are classified within additional paid-in capital in the Condensed Consolidated Balance Sheet.
Pursuant to the Warrants Agreement dated as of July 26, 2016, the exercise price and the warrant share number were adjusted as a result of the occurrence of the Special Dividend. The warrant share number was adjusted from 1.00 to 1.15, and the exercise price was adjusted from $55.93 per share to $48.741 per share as of the July 5, 2017 record date.
As of June 30, 2018, of the 810,811 warrants that were originally issued, 801,983 remain outstanding, with a total of 922,280 shares underlying the un-exercised warrants. During the six months ended June 30, 2018, the Company issued and repurchased common stock associated with warrant exercises, resulting in 34 shares being classified as treasury stock.
(14) Income Taxes
For the six months ended June 30, 2018, the Company recorded income tax expense of $121 on income from continuing operations before income taxes of $133,063. The income tax expense differs from the expected statutory amount primarily due to the impact of the percentage depletion allowance and the reduction in the valuation allowance, partially offset by the impact of state income taxes, net of federal tax impact. As of June 30, 2018, the Company anticipates Federal net operating loss carryforwards will fully offset the Federal taxable income generated in 2018. For the six months ended June 30, 2017, the Company recorded income tax expense of $15,811 on income from continuing operations before income taxes of $65,167. The income tax expense differs from the expected statutory amount primarily due to the impact of the percentage depletion allowance and the reduction in the valuation allowance.
On December 22, 2017, President Trump signed into law legislation commonly referred to as the “Tax Cuts and Jobs Act” (“TCJA”). Effective for tax years beginning after December 31, 2017, the TCJA reduces the corporate income tax rate from 35% to 21%. The TCJA also repeals the corporate alternative minimum tax (“AMT”), provides a mechanism for corporations to monetize alternative minimum tax credits (“AMT Credits”) during the 2018 to 2021 tax years, and makes changes to net operating loss (“NOL”) provisions to repeal NOL carrybacks, allow NOLs to be carried forward indefinitely, and limit the utilization of an NOL carryforward to 80% of taxable income generated.
At December 31, 2017, the Company recorded, under SAB 118, its best estimate of the monetizable AMT Credits based on the information available at that time and will finalize the analysis within the one-year measurement period ending on December 22, 2018. During the six months ended June 30, 2018, the Company did not record any provisional adjustments to the amount of AMT Credits.
During the six months ended June 30, 2018, the Company recorded a decrease of $36,772 to its deferred tax asset valuation allowance. The decrease in valuation allowance results from the generation of income from continuing operations before income taxes that allowed for the utilization of net operating losses, as well as the utilization of other deferred tax assets, since the prior reporting date of December 31, 2017. The valuation allowance associated with those deferred tax assets was therefore released during the six months ended June 30, 2018. The Company currently is relying primarily on the reversal of taxable temporary differences, along with consideration of taxable income via carryback to prior years and tax planning strategies, to support the realization of deferred tax assets. The Company updates its assessment regarding the realizability of its deferred tax assets including scheduling the reversal of its deferred tax liabilities to determine the amount of valuation allowance needed. Scheduling the reversal of deferred tax asset and liability balances requires judgment and estimation. The Company believes the deferred tax liabilities relied upon as future taxable income in its assessment will reverse in the same period and jurisdiction and are of the same character as the temporary differences giving rise to the deferred tax assets that will be realized. The valuation allowance recorded represents the portion of deferred tax assets for which the Company is unable to support realization through the methods described above. As of June 30, 2018, the Company recorded a full valuation allowance against its net deferred tax assets other than the AMT Credits.

F-92
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

(15) Employee Benefit Plans
The Company sponsors or participates in several types of benefits for its employees, including postemployment health care and life insurance, defined benefit and defined contribution pension plans, and workers’ compensation and black lung benefits.
Black Lung
The Company had $19,100 and $18,241 of black lung liability as of June 30, 2018 and December 31, 2017, respectively.
The following table details the components of the net periodic benefit cost for black lung obligations:
 
Six Months Ended June 30,
 
2018
 
2017
Service cost
$
388

 
$
325

Interest cost
347

 
316

Amortization of net actuarial loss (gain)
100

 
(74
)
Net periodic expense
$
835

 
$
567

The components of net periodic benefit cost other than the service cost component are included in the line item miscellaneous income in the Condensed Consolidated Statements of Operations.
Life Insurance Benefits
The Company had $12,563 and $12,640 of life insurance benefits liability as of June 30, 2018 and December 31, 2017, respectively.
The following table details the components of the net periodic benefit cost for life insurance benefit obligations:
 
Six Months Ended June 30,
 
2018
 
2017
Interest cost
$
194

 
$
203

Amortization of net actuarial gain
(22
)
 
(27
)
Net periodic expense
$
172

 
$
176

The components of net periodic benefit cost are included in the line item miscellaneous income in the Condensed Consolidated Statements of Operations.
Defined Contribution and Profit Sharing Plans
The Company sponsors defined contribution plans to assist its eligible employees in providing for retirement. Generally, under the terms of these plans, employees make voluntary contributions through payroll deductions and the Company makes matching and/or discretionary contributions, as defined by each plan. The Company’s total contributions to these plans for the six months ended June 30, 2018 and 2017 was $6,986 and $5,661, respectively.
Self-Insured Medical Plan
The Company is self-insured for health insurance coverage for all of its active employees. Estimated liabilities for health and medical claims are recorded based on the Company’s historical experience and include a component for incurred but not paid claims. During the six months ended June 30, 2018 and 2017, the Company incurred total expenses of $14,028 and $13,981, respectively, which primarily includes claims processed and an estimate for claims incurred but not paid.

F-93
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

(16) Stock-Based Compensation Awards
The Management Incentive Plan (the “Plan”) is currently authorized for the issuance of awards of up to 1,201,202 shares of common stock, and as of June 30, 2018, there were 61,102 additional shares of common stock available for grant under the Plan.
During the six months ended June 30, 2018, the Company granted certain key employees 18,063 time-based restricted stock units with a grant date fair value of $65.00, based on the Company’s stock price at the date of grant. These time-based units will vest on the first anniversary of the date of the grant. As of the date of the awards, the Company did not have sufficient authorized and unissued common shares to settle these awards and the awards will be settled with cash, unless shares become available for issuance under the Plan. Therefore, these awards are classified as a liability. The Company’s liability for all outstanding liability awards totaled $695 and $163 as of June 30, 2018 and December 31, 2017, respectively.
Additionally, during the six months ended June 30, 2018, the Company granted 7,310 time-based restricted stock units to its non-employee directors. These time-based units granted to the Company’s non-employee directors will vest on the first to occur of (i) the day before the one-year anniversary of the date of grant, (ii) the director’s separation from service (as defined in Section 409A) due to the directors’ death or disability, (iii) a change in control, subject in each case to the director’s continuous service with the Company through such date, and (iv) the date immediately prior to an Initial Public Offering (“IPO”), contingent upon the consummation of the IPO. Upon vesting and settlement of time-based share units, the Company issues authorized and unissued shares of the Company’s common stock to the recipient. The time-based restricted stock units granted on May 1, 2018 have a grant date fair value of $64.97, based on the Company’s stock price at the date of grant.
At June 30, 2018, the Company had three types of stock-based awards outstanding: time-based restricted stock shares, time-based restricted share units, and stock options. Stock-based compensation expense totaled $7,125 and $6,598 for the six months ended June 30, 2018 and 2017, respectively. For the six months ended June 30, 2018 and 2017, approximately 95% and 94%, respectively, of stock-based compensation expense was reported as selling, general and administrative expenses and the remainder was recorded as cost of coal sales.
The Company is authorized to repurchase common shares from employees (upon the election by the employee) to satisfy the employees’ statutory tax withholdings upon the vesting of stock grants. Shares that are repurchased to satisfy the employees’ statutory tax withholdings are recorded in treasury stock at cost. During the six months ended June 30, 2018, the Company repurchased 70,834 shares of its common stock issued pursuant to awards under the Plan for a total purchase amount of $4,816, or $67.99 average price paid per share. The Company did not repurchase any common shares from employees to satisfy the employees’ statutory tax withholdings upon vesting of stock grants during the six months ended June 30, 2017.
(17) Related Party Transactions
There were no material related party transactions for the six months ended June 30, 2018.
(18) Commitments and Contingencies
(a) General
Estimated losses from loss contingencies are accrued by a charge to income when information available indicates that it is probable that an asset has been impaired or a liability has been incurred and the amount of the loss can be reasonably estimated.
If a loss contingency is not probable or reasonably estimable, disclosure of the loss contingency is made in the Financial Statements when it is at least reasonably possible that a loss may be incurred and that the loss could be material.

F-94
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

(b) Commitments and Contingencies
Commitments
The Company leases coal mining and other equipment under long-term capital and operating leases with varying terms. In addition, the Company leases mineral interests and surface rights from land owners under various terms and royalty rates.
Net rent expense under operating leases was $926 and coal royalty expense was $13,743 for the six months ended June 30, 2018. Net rent expense under operating leases was $923 and coal royalty expense was $11,639 for the six months ended June 30, 2017.
Other Commitments
The Company has obligations under certain coal purchase agreements that contain minimum quantities to be purchased in the remainder of 2018, 2019, and 2020 totaling an estimated $437,257, $86,713, and $1,568, respectively, which includes an estimated $47,880 in 2018 and $70,680 in 2019 related to contractually committed variable priced tons from vendors with historical performance resulting in less than 20% of the committed tonnage being delivered. The Company has obligations under certain coal transportation agreements that contain minimum quantities to be shipped in the remainder of 2018, 2019, and 2020 totaling an estimated $1,494, $3,072, and $3,102, respectively. The Company also has obligations under certain equipment purchase agreements that contain minimum quantities to be purchased in the remainder of 2018 and 2019 totaling $22,608 and $3,891, respectively.
Contingencies
Extensive regulation of the impacts of mining on the environment and of maintaining workplace safety has had and is expected to continue to have a significant effect on the Company’s costs of production and results of operations. Further regulations, legislation or litigation in these areas may also cause the Company’s sales or profitability to decline by increasing costs or by hindering the Company’s ability to continue mining at existing operations or to permit new operations.
During the normal course of business, contract-related matters arise between the Company and its customers. When a loss related to such matters is considered probable and can reasonably be estimated, the Company records a liability.
Per terms of the Back-to-Back Coal Supply Agreements, the Company is required to purchase and sell coal in the remainder of 2018, 2019, and 2020 totaling $11,520, $16,113, and $9,175, respectively. For the six months ended June 30, 2018, the Company purchased and sold 4,650 tons, totaling $50,339 under the Back-to-Back Coal Supply Agreements.
As a result of certain tax law changes made in December 2017, the Company is entitled to monetize alternative minimum tax credits in aggregate of $78,744 over tax years 2018 to 2021 (the “AMT Credits”), and the Company has recorded a deferred tax asset of $78,744. ANR has asserted that, under the terms of the Asset Purchase Agreement that it entered into with the Company on July 26, 2016, it is entitled to the value of the AMT Credits, although it has not made a formal claim in this regard. The Company disagrees with this assertion and intends to dispute any such claim.
(c) Guarantees and Financial Instruments with Off-Balance Sheet Risk
In the normal course of business, the Company is a party to certain guarantees and financial instruments with off-balance sheet risk, such as bank letters of credit, performance or surety bonds, and other guarantees and indemnities related to the obligations of affiliated entities which are not reflected in the Company’s Balance Sheet. As of June 30, 2018, the Company had outstanding surety bonds with a total face amount of $391,786 to secure various obligations and commitments, including $237,150 related to the PRB. To secure the Company’s obligations under reclamation-related bonds, the Company is required to provide cash collateral. Once the permits associated with the PRB Transaction have been transferred, the Company estimates approximately $12,600 comprised of short-term restricted cash and short-term deposits will be returned to operating cash. See Note 21, Subsequent Events, for developments related to Blackjewel surety bonding during the third quarter of 2018.
Amounts included in short-term and long-term restricted cash represent cash deposits that are restricted as to withdrawal as required by certain agreements entered into by the Company and provide collateral in the amounts of $20,730, $20,524,

F-95
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

and $5,666 as of June 30, 2018 for securing the Company’s obligations under certain worker’s compensation, reclamation related bonds, and financial guarantees, respectively, which have been written on the Company’s behalf. The Company’s restricted cash is primarily invested in interest bearing accounts.
Deposits represent cash deposits held at third parties as required by certain agreements entered into by the Company to provide cash collateral. At June 30, 2018, the Company had cash collateral in the form of short-term and long-term deposits to secure the Company’s obligations under reclamation related bonds and various other operating agreements in the amounts of $15,238 and $619, respectively.
As of June 30, 2018, the Company had real property collateralizing $26,749 of reclamation bonds.
Letters of Credit
As of June 30, 2018, the Company had $9,900 letters of credit outstanding under the Asset-Based Revolving Credit Agreement.
(d) Legal Proceedings 
The Company could become party to legal proceedings from time to time. These proceedings, as well as governmental examinations, could involve various business units and a variety of claims including, but not limited to, contract disputes, personal injury claims, property damage claims (including those resulting from blasting, trucking and flooding), environmental and safety issues, and employment matters. While some legal matters may specify the damages claimed by the plaintiffs, many seek an unquantified amount of damages. Even when the amount of damages claimed against the Company or its subsidiaries is stated, (i) the claimed amount may be exaggerated or unsupported; (ii) the claim may be based on a novel legal theory or involve a large number of parties; (iii) there may be uncertainty as to the likelihood of a class being certified or the ultimate size of the class; (iv) there may be uncertainty as to the outcome of pending appeals or motions; and/or (v) there may be significant factual issues to be resolved. As a result, if such legal matters arise in the future the Company may be unable to estimate a range of possible loss for matters that have not yet progressed sufficiently through discovery and development of important factual information and legal issues. The Company records accruals based on an estimate of the ultimate outcome of these matters, but these estimates can be difficult to determine and involve significant judgment.
(19) Segment Information
The Company extracts, processes and markets steam and met coal from surface and deep mines for sale to electric utilities, steel and coke producers, and industrial customers. The Company conducts mining operations only in the United States with mines in Northern and Central Appalachia. The Company has three reportable segments: CAPP, NAPP and Trading and Logistics. CAPP consists of seven active mines and two preparation plants in Virginia, one active mine and one preparation plant in West Virginia, as well as expenses associated with certain closed mines. NAPP consists of one active mine in Pennsylvania and one preparation plant, as well as expenses associated with one closed mine. The Trading and Logistics segment primarily engages in coal trading activities and coal terminal services.
In addition to the three reportable segments, the All Other category includes general corporate overhead and corporate assets and liabilities, the elimination of certain intercompany activity, and the Company’s discontinued operations.
The operating results of these reportable segments are regularly reviewed by the Chief Operating Decision Maker (“CODM”), who is the Chief Executive Officer of the Company.

F-96
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

Segment operating results and capital expenditures for the six months ended June 30, 2018 were as follows: 
 
Six Months Ended June 30, 2018
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Total revenues
$
287,543

 
$
135,229

 
$
586,245

 
$
2,233

 
$
1,011,250

Depreciation, depletion, and amortization
$
11,978

 
$
10,463

 
$
—

 
$
369

 
$
22,810

Amortization of acquired intangibles, net
$
—

 
$
—

 
$
11,310

 
$
—

 
$
11,310

Adjusted EBITDA
$
121,068

 
$
18,189

 
$
66,186

 
$
(20,323
)
 
$
185,120

Capital expenditures
$
15,845

 
$
22,341

 
$
—

 
$
163

 
$
38,349

Segment operating results and capital expenditures for the six months ended June 30, 2017 were as follows: 
 
Six Months Ended June 30, 2017
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Total revenues
$
260,604

 
$
176,980

 
$
476,809

 
$
394

 
$
914,787

Depreciation, depletion, and amortization
$
10,711

 
$
6,662

 
$
—

 
$
415

 
$
17,788

Amortization of acquired intangibles, net
$
—

 
$
—

 
$
34,243

 
$
—

 
$
34,243

Adjusted EBITDA
$
112,259

 
$
53,587

 
$
51,042

 
$
(24,331
)
 
$
192,557

Capital expenditures
$
7,189

 
$
22,209

 
$
—

 
$
1,058

 
$
30,456


F-97
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

The following table presents a reconciliation of net income (loss) to Adjusted EBITDA for the six months ended June 30, 2018:
 
Six Months Ended June 30, 2018
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Net income (loss) from continuing operations
$
123,000

 
$
6,205

 
$
54,894

 
$
(51,157
)
 
$
132,942

Interest expense
312

 
(349
)
 
—

 
18,021

 
17,984

Interest income
(10
)
 
(12
)
 
(18
)
 
(282
)
 
(322
)
Income tax expense
—

 
—

 
—

 
121

 
121

Depreciation, depletion and amortization
11,978

 
10,463

 
—

 
369

 
22,810

Merger related costs
—

 
—

 
—

 
3,883

 
3,883

Management restructuring costs (1)
—

 
—

 
—

 
2,659

 
2,659

Non-cash stock compensation expense
—

 
—

 
—

 
6,355

 
6,355

Gain on settlement of acquisition-related obligations
—

 
—

 
—

 
(292
)
 
(292
)
Gain on sale of disposal group  (2)
(16,386
)
 
—

 
—

 
—

 
(16,386
)
Accretion expense
2,174

 
1,882

 
—

 
—

 
4,056

Amortization of acquired intangibles, net
—

 
—

 
11,310

 
—

 
11,310

Adjusted EBITDA (3)
$
121,068

 
$
18,189

 
$
66,186

 
$
(20,323
)
 
$
185,120

______________
(1)
Management restructuring costs are related to severance expense associated with senior management changes in the six months ended June 30, 2018.
(2)
During the fourth quarter of 2017, the Company entered into an asset purchase agreement to sell a disposal group (comprised of property, plant and equipment and associated asset retirement obligations) within our CAPP segment. From the date the Company entered into the asset purchase agreement through the transaction close date, the property, plant and equipment and associated asset retirement obligations were classified as held for sale in amounts representing the fair value of the disposal group. Upon permit transfer, the transaction closed on April 2, 2018. The Company paid $10,000 in connection with the transaction, which was paid into escrow on March 27, 2018 and transferred to the buyer at the transaction close date, and expects to pay a series of additional cash payments in the aggregate amount of $1,500, per the terms stated in the agreement, and recorded a gain on sale of $16,386 within gain on disposal of assets within the Condensed Consolidated Statements of Operations.
(3)
Pursuant to the PRB divestiture and classification as a discontinued operation, the Company is no longer presenting a PRB reporting segment. The former PRB reporting segment had Adjusted EBITDA of ($2,368) for the six months ended June 30, 2018.


F-98
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

The following table presents a reconciliation of net (loss) income to Adjusted EBITDA for the six months ended June 30, 2017:
 
Six Months Ended June 30, 2017
 
CAPP
 
NAPP
 
Trading and Logistics
 
All Other
 
Consolidated
Net income (loss) from continuing operations
$
98,346

 
$
45,155

 
$
16,590

 
$
(110,735
)
 
$
49,356

Interest expense
(93
)
 
(369
)
 
—

 
20,076

 
19,614

Interest income
(5
)
 
—

 
—

 
(68
)
 
(73
)
Income tax expense
—

 
—

 
—

 
15,811

 
15,811

Depreciation, depletion and amortization
10,711

 
6,662

 
—

 
415

 
17,788

Non-cash stock compensation expense
—

 
—

 
209

 
6,389

 
6,598

Mark-to-market adjustment - acquisition-related obligations
—

 
—

 
—

 
2,382

 
2,382

Gain on settlement of acquisition-related obligations
—

 
—

 
—

 
(9,200
)
 
(9,200
)
Secondary offering costs
—

 
—

 
—

 
3,438

 
3,438

Loss on early extinguishment of debt
—

 
—

 
—

 
38,701

 
38,701

Bargain purchase gain
—

 
—

 
—

 
(642
)
 
(642
)
Accretion expense
2,923

 
2,082

 
—

 
—

 
5,005

Amortization of acquired intangibles, net
—

 
—

 
34,243

 
—

 
34,243

Expenses related to Special Dividend
377

 
57

 
—

 
9,102

 
9,536

Adjusted EBITDA (1) (2)
$
112,259

 
$
53,587

 
$
51,042

 
$
(24,331
)
 
$
192,557

______________
(1)
The Company’s Adjusted EBITDA calculation has been modified to add back non-cash stock compensation expense to
align with industry peer group methodology.
(2)
Pursuant to the PRB divestiture and classification as a discontinued operation, the Company is no longer presenting a PRB reporting segment. The former PRB reporting segment had Adjusted EBITDA of $18,761 for the six months ended June 30, 2017.

No asset information has been provided for these reportable segments as the CODM does not regularly review asset information by reportable segment.
The Company markets produced, processed and purchased coal to customers in the United States and in international markets, primarily India, Brazil, France, Italy, and Ukraine. Export coal revenues were the following:
 
Six Months Ended June 30,
 
2018
 
2017 (1)
Total coal revenues (1)
$
1,003,533

 
$
910,819

Export coal revenues (1) (2)
$
883,045

 
$
693,338

Export coal revenues as % of total coal revenues (1)
88
%
 
76
%
______________
(1)
Amounts include freight and handling revenues.
(2)
The amounts for the six months ended June 30, 2018 include $289,415 and $161,967 of export coal revenues, including freight and handling revenues, from external customers in India and Brazil, respectively, recorded within the CAPP, NAPP, and Trading and Logistics segments. The amounts for the six months ended June 30, 2017 include $200,718 and $89,567 of export coal revenues, including freight and handling revenues, from external customers in India and Italy, respectively, recorded within the CAPP, NAPP, and Trading and Logistics segments. Revenue is tracked within the Company’s accounting records based on the product destination.


F-99
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

The Company sold 3,233 tons of coal purchased from third parties, excluding tons sold related to the Back-to-Back Coal Supply Agreements, for the six months ended June 30, 2018, representing approximately 39% of total coal sales volume during such period. The Company sold 2,407 tons of coal purchased from third parties for the six months ended June 30, 2017, representing approximately 29% of total coal sales volume during such period. Additionally, the Company purchases a substantial portion of this coal from one source.
(20) Investment in Unconsolidated Affiliate
Dominion Terminal Associates (“DTA”)
On March 31, 2017, the Company acquired a portion of another partner’s interest in DTA for $13,293 thereby increasing its ownership in DTA to sixty-five percent. DTA is reliant upon continuous cash contributions from the partners to fund its operating costs. The Company’s cash contributions totaled $525 for the six months ended June 30, 2018. The capital contributions which increase the capital accounts of the respective partners are a form of future subordinated financial support required by DTA to finance its activities. As a result, the Company has concluded DTA does not have sufficient equity investment to finance its activities without the support from the equity partners and is a variable interest entity. Prior to the purchase of the additional interest in DTA, no single party held a majority ownership interest in DTA. After the transaction, there are two remaining owners and Contura holds a sixty-five percent voting ownership interest in DTA. However, two representatives must be present for business to be conducted and consent and unanimous approval of both the members is required for decisions to be taken. Further, there are no provisions that allow either party to override or otherwise unilaterally make a decision. As a result, the Company has concluded that it does not have the power to direct the activities that most significantly impact its economic performance and therefore is not the primary beneficiary. Accordingly, the Company continues to apply the equity method of accounting.
The Company recorded equity method losses, before taxes, from DTA of ($1,233) and ($1,709) for the six months ended June 30, 2018 and 2017, respectively, which are reflected within miscellaneous income, net in the Statements of Operations. As of June 30, 2018 and December 31, 2017, the Company’s investment in DTA was $15,386 and $16,095, respectively, and is recorded within other non-current assets within the Company’s Condensed Consolidated Balance Sheets.
Condensed income statement information for the six months ended June 30, 2018 and 2017 for DTA is presented in the following table:
 
Six Months Ended June 30,
 
2018
 
2017
Operating expenses
$
14,655

 
$
11,991

Other income, net
$
(10,959
)
 
$
(6,224
)
Total expenses, net
$
3,696

 
$
5,767

Contributions from partners to fund continuing operations
$
788

 
$
5,725

Expenses (over)/under contributions
$
(2,908
)
 
$
(42
)
Depreciation and amortization
$
2,929

 
$
2,184

(21) Subsequent Events
The Company’s subsequent events have been evaluated through August 16, 2018, the date at which the Condensed Consolidated Financial Statements were available to be issued.
Blackjewel Surety Bonding
During the third quarter of 2018, Blackjewel L.L.C. (“Blackjewel”) procured surety bonds for a total of $221,000 to facilitate the transfer of record by the State of Wyoming of the Belle Ayr and Eagle Butte mine permits from Contura Coal West, LLC to Blackjewel as required by that certain Asset Purchase Agreement dated as of December 7, 2017, among Blackjewel, Contura Energy, Inc. (“Contura”), Contura Coal West, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, and Contura Energy Services, LLC.

F-100
CONTURA ENERGY, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited, amounts in thousands except share and per share data)

Contura has agreed to backstop a portion of Blackjewel’s bonding obligations with respect to the Belle Ayr and Eagle Butte permits by entering into secondary general indemnification agreements and providing letters of credit to the sureties as collateral for Contura’s indemnification obligations. This arrangement provides cost reimbursement for the issuing sureties. Indemnity bonds will be issued by a third-party insurer in favor of Contura to insure Blackjewel’s performance obligations to Contura with respect to cancellation of the general indemnification agreements and return of the letters of credit.
Blackjewel has agreed that, by June 30, 2019, it will (i) enter into financing arrangements of an as yet to be determined amount to be held as collateral by the sureties and (ii) cause each surety to release and return each letter of credit and cancel the Contura general indemnification agreements.
Blackjewel’s performance obligations are also collateralized by a security interest in mobile equipment granted to Contura under 8.6(c) of the Asset Purchase Agreement. Further, in connection with this arrangement, approximately $8,000 in surety cash collateral previously supporting reclamation bonds was returned to Contura by certain of its sureties.
During the third quarter of 2018, the Company expects to account for the Blackjewel surety bonding arrangement as a guarantee within discontinued operations with no material impact on the Company's financial statements.

F-101





Alpha Natural Resources Holdings, Inc.

Financial Statements
(with Independent Auditors’ Report Thereon)


As of December 31, 2017 and 2016 and the year ended December 31, 2017 and the period from July 26 through December 31, 2016





F-102

Independent Auditors’ Report
The Board of Directors
Alpha Natural Resources Holdings, Inc.:
We have audited the accompanying financial statements of Alpha Natural Resources Holdings, Inc., which comprise the balance sheets as of December 31, 2017 and 2016, and the related statements of operations, stockholders’ equity (deficit), and cash flows for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016, and the related notes to the financial statements.
Management’s Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these financial statements in accordance with U.S. generally accepted accounting principles; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
Auditors’ Responsibility
Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditors’ judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity’s preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity’s internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Alpha Natural Resources Holdings, Inc. as of December 31, 2017 and 2016, and the results of its operations and its cash flows for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016 in accordance with U.S. generally accepted accounting principles.

/s/ KPMG LLP
Richmond, Virginia
August 16, 2018

F-103

ALPHA NATURAL RESOURCES HOLDINGS, INC.
STATEMENTS OF OPERATIONS
(Amounts in thousands, except for share an d per share data)
 
Year Ended
December 31,
2017
 
Period from July 26
through December 31,
2016
Loss on equity investment
$
—

 
$
(239
)
Loss before income taxes
$
—

 
$
(239
)
Income tax benefit
—

 
—

Net Loss
$
—

 
$
(239
)
 
 
 
 
Basic & Diluted loss per common share
$
—

 
$
(0.06
)
 
 
 
 
Weighted average shares - Basic and diluted
4,223,290

 
4,223,290

See accompanying Notes to Financial Statements


F-104

ALPHA NATURAL RESOURCES HOLDINGS, INC.
BALANCE SHEETS
(Amounts in thousands, except for share and per sha re data)
 
December 31,
2017
 
December 31,
2016
Assets
 
 
 
Non-current Assets:
 
 
 
Equity Investment in ANR, Inc.
$
—

 
$
—

Total assets
$
—

 
$
—

 
 
 
 
Liabilities and Stockholders’ Equity
 
 
 
Total Liabilities
$
—

 
$
—

 
 
 
 
Stockholders’ Equity
 
 
 
Preferred stock - par value $0.01, 6,800,000 shares authorized, 6,800,000 shares issued and outstanding at December 31, 2017 and December 31, 2016
68

 
68

Common stock - par value $0.01, 7,000,000 shares authorized, 7,000,000 shares issued and outstanding at December 31, 2017 and December 31, 2016
70

 
70

Additional paid-in capital
101

 
101

Accumulated deficit
(239
)
 
(239
)
Total stockholders’ equity
—

 
—

Total liabilities and stockholders’ equity
$
—

 
$
—

See accompanying Notes to Financial Statements


F-105

ALPHA NATURAL RESOURCES HOLDINGS, INC.
STATEMENTS OF CASH FLOWS
(Amounts in thousands)
 
 Year Ended
December 31,
2017
 
Period from
July 26 through December 31, 2016
Operating activities:
 
 
 
Net loss
$
—

 
$
(239
)
Adjustments to reconcile net loss to net cash provided by operating activities:
 
 
 
Loss on equity investment
—

 
239

Net cash provided by operating activities
—

 
—

 
 
 
 
Investing activities:
 
 
 
Net cash provided by investing activities
—

 
—

 
 
 
 
Financing activities:
 
 
 
Net cash provided by financing activities
—

 
—

 
 
 
 
Net decrease in cash and cash equivalents
—

 
—

Cash and cash equivalents at beginning of period
—

 
—

Cash and cash equivalents at end of period
$
—

 
$
—

 
 
 
 
Supplemental disclosure of non-cash investing and financing activities:
 
 
 
Investment in ANR, Inc.
$
—

 
$
(239
)
Issuance of preferred and common stock
$
—

 
$
239

See accompanying Notes to Financial Statements


F-106

ALPHA NATURAL RESOURCES HOLDINGS, INC.
STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT)
(Amounts in thousands)
 
Preferred Stock
 
Common Stock
 
Additional Paid in Capital
 
Accumulated Deficit
 
Total Stockholders' Equity (Deficit)
 
Shares
 
Amount
 
Shares
 
Amount
 
 
 
Balances, July 26, 2016
—

 
$
—

 
—

 
$
—

 
$
—

 
$
—

 
$
—

Issuance of Preferred and Common Stock
6,800

 
68

 
7,000

 
70

 
101

 
—

 
239

Net Loss
—

 
—

 
—

 
—

 
—

 
(239
)
 
(239
)
Balances, December 31, 2016
6,800

 
68

 
7,000

 
70

 
101

 
(239
)
 
—

Net loss
—

 
—

 
—

 
—

 
—

 
—

 
—

Balances, December 31, 2017
6,800

 
$
68

 
7,000

 
$
70

 
$
101

 
$
(239
)
 
$
—

See accompanying Notes to Financial Statements


F-107
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)



1. Business and Basis of Presentation
Business
Alpha Natural Resources Holdings, Inc’s. (the “Company” or “ANRH”) sole asset is its ownership investment in ANR, Inc. and its consolidated subsidiaries (“ANRI”). As of December 31, 2017 and 2016, ANRH owned all of ANRI’s Class C-2 common shares (3,000,000) and none of ANRI’s preferred shares. ANRI is primarily engaged in the business of extracting, processing and marketing steam and metallurgical coal from surface and deep mines, and selling its coal to electric utilities, steel and coke producers, industrial customers and coal brokers. ANRI, through its subsidiaries, is also involved in marketing coal produced by others to supplement its own production. In addition, ANRI is responsible for reclaiming properties where mining is completed, or no active mining is occurring.
ANRH and ANRI were formed as a result of the bankruptcy proceedings of Alpha Natural Resources, Inc. ANRH is domiciled in Bristol, Tennessee.
Basis of Presentation
The statements of operations, balance sheets, statements of cash flows and statements of stockholders’ equity (deficit) of the Company (collectively the “Financial Statements”), have been prepared in accordance with generally accepted accounting principles in the United States of America (“U.S. GAAP”).
2. Summary of Significant Accounting Policies
Use of Estimates
The preparation of the financial statements requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Significant items subject to such estimates and assumptions include current and deferred income taxes. Estimates are based on facts and circumstances believed to be reasonable at the time; however, actual results could differ from those estimates.
Equity Method Investments
Investments in unconsolidated affiliates that the Company has the ability to exercise significant influence over, but not control, are accounted for under the equity method of accounting. Under the equity method of accounting, the Company records its proportionate share of the entity’s net income or loss at each reporting period in the statements of operations, with a corresponding entry to increase or decrease the carrying value of the investment. Proportionate losses are only recorded to the extent that the carrying value is not reduced below zero.
Income Taxes
The Company recognizes deferred tax assets and liabilities using enacted tax rates for the effect of temporary differences between the book and tax basis of recorded assets and liabilities. Deferred tax assets are reduced by a valuation allowance, if it is more likely than not that some portion or all of the deferred tax asset will not be realized. In evaluating its ability to recover deferred tax assets within the jurisdiction in which they arise, the Company considers all available positive and negative evidence, including the expected reversals of taxable temporary differences, projected future taxable income, taxable income available via carryback to prior years, tax planning strategies, and results of recent equity income or losses.
Related Party Transactions
For the year ended December 31, 2017 and the period from July 26 through December 31, 2016, the Company incurred certain nominal expenses. The aforementioned immaterial expenses were recorded and paid by ANRI and there is no obligation to repay ANRI. Therefore, no expenses associated with these nominal amounts were recorded or recognized by the Company in its financial statements. There were no additional material related party transactions for the year ended December 31, 2017 and the period from July 26 through December 31, 2016.

F-108
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)


3. Earnings per Share
The number of shares used to calculate basic earnings per common share is based on the weighted average number of the Company’s outstanding common shares during the respective period. The number of shares used to calculate diluted earnings per common share is based on the number of common shares used to calculate basic earnings per share plus the dilutive effect of stock options and restricted stock units held by the Company’s employees and directors during the period. In periods of net loss, the number of shares used to calculate diluted earnings per share is the same as basic earnings per share.
The following table presents the net loss per common share (basic and diluted are equivalent since there is no dilutive effect) for the year ended December 31, 2017 and for the period from July 26 through December 31, 2016:
 
Year ended
December 31,
2017
 
Period from
July 26 through
December 31,
2016
Net Loss
$
—

 
$
(239
)
Basic & Diluted
 
 
 
Weighted average common shares outstanding - basic (a)
4,223,290

 
4,223,290

Net Loss per common share
$
—

 
$
(0.06
)
______________
(a)
On February 15, 2018, stockholders approved the Company’s proposal to exchange shares of the existing classes and series of stock for new shares at specified exchange ratios. Following stockholder approval and the effectiveness of the reclassifications, ANRH has one class of common stock. The total common shares authorized equals 5,000,000, with 4,223,290 currently issued and outstanding. Preferred shares were eliminated in the reclassification. There was no change in relative shareholders’ rights, rank, or value before and after the reclassification. Accordingly, earnings per share has been retrospectively adjusted for the revised number of common shares.

4. Commitments and contingencies
Estimated losses from loss contingencies are accrued by a charge to income when information available indicates that it is probable that an asset has been impaired or a liability has been incurred and the amount of the loss can be reasonably estimated. There were no outstanding commitments of the Company as of December 31, 2017.
If a loss contingency is not probable or reasonably estimable, disclosure of the loss contingency is made in the financial statements when it is at least reasonably possible that a loss may be incurred and that the loss could be material. No liability has been recorded as of December 31, 2017.
5. Equity Method Investment
ANRH’s investment in ANRI is accounted for under the equity method. At July 26, 2016, $239 was assigned to the equity investment. The carrying amount of the investment in ANRI was $0 at December 31, 2017 and 2016. Based on a closing price of $19.75 (as obtained from the OTC US exchange) for ANRI’s Class C-1 common stock (ANRI’s Class C-2 shares do not trade), the fair value of the investment in ANRI was $59,250 at December 31, 2017. Summary financial information for the investee company as of and for the periods ended December 31, 2017 and 2016 is as follows:
 
December 31, 2017
 
December 31, 2016
Financial Position:
 
 
 
Total Assets
$
876,080

 
$
1,060,273

Total Liabilities
$
999,093

 
$
1,088,034

Stockholders’ equity (deficit)
$
(123,013
)
 
$
(27,761
)

F-109
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)


 

Year Ended
December 31, 2017
 
Period from
July 26 through
December 31, 2016
Results of Operations:
 
 
 
Net Loss
$
(38,886
)
 
$
(57,117
)
6. Segment
The Company has only one reportable segment which holds the investment in ANRI.
7. Income Taxes
The income tax expense (benefit) for both periods ended December 31, 2017 and 2016 was $0.
The components of the net deferred tax asset (liability) balance are as follows as of December 31, 2017 and 2016:
 
December 31, 2017
 
December 31, 2016
Investment in ANR, Inc.
$
50

 
$
84

Total assets
50

 
84

Less: valuation allowance
(50
)
 
(84
)
Total net deferred tax assets/(liabilities)
$
—

 
$
—

Valuation Allowance
Changes in the valuation allowance during the year ended December 31, 2017 and for the period July 26 through December 31, 2016 were as follows:
 
Year Ended December 31, 2017
 
Period from
July 26 through December 31, 2016
Valuation allowance beginning of period
$
84

 
$
—

Increase (decrease) in valuation allowance recorded as an increase (decrease) to income tax expense
(34
)
 
84

Valuation allowance end of period
$
50

 
$
84

Impacts of the Tax Cuts and Jobs Act (“Tax Act”)
On December 22, 2017, the Tax Act was signed into law. The Tax Act contains significant changes to corporate taxation, including (i) the reduction of the corporate tax rate from 35% to 21%, (ii) the acceleration of tax depreciation for certain business assets, (iii) the repeal of the domestic production deduction, (iv) additional limitations on the deductibility of interest expense, and (v) expanded limitations on executive compensation. Tax reform eliminated the alternative minimum tax (“AMT”) for corporations while allowing the continued use of AMT credit carryforwards and allowing future refunds of these credits. Except for the acceleration of tax depreciation for certain business assets effective in September of 2017, the changes were effective as of January 1, 2018.
The tax rate change impacted the components of the deferred tax assets/liabilities at December 31, 2017, with no change to the net deferred tax assets/liabilities.

F-110
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)


Unrecognized Tax Benefits
The Company has not historically recorded any unrecognized tax benefits. Similarly, the Company is not aware of any unrecognized tax benefit requirements as of December 31, 2017 or 2016. To the extent an unrecognized tax benefit would have been recorded, the Company has elected to treat the corresponding interest and penalties as part of income tax expense.
8. Subsequent Events
a.
On February 15, 2018, stockholders approved the Company’s proposal to exchange shares of the existing classes and series of stock for new shares at specified exchange ratios. Following stockholder approval and the effectiveness of the reclassifications, ANRH has one class of common stock. The total common shares authorized equals 5,000,000, with 4,223,290 currently issued and outstanding. Preferred shares were eliminated in the reclassification.
b.
On February 15, 2018, ANRI stockholders approved the ANRI’s proposal to exchange shares of the existing classes and series of stock for new shares at specified exchange ratios. Following stockholder approval and the effectiveness of the reclassifications, ANRI now has two classes of common stock with equivalent rights, one of which will trade. The total common shares authorized equals 54,223,400 (50,000,000 Class C-1 and 4,223,400 Class C-2), with 20,131,152 (15,907,752 Class C-1 and 4,223,400 Class C-2) currently issued and outstanding. Class C-3 common shares and preferred shares were eliminated in the reclassification. There was no change in relative shareholders’ rights, rank, or value before and after the reclassification. As a result, ANRH now holds 4,223,400 shares of ANRI’s Class C-2 common stock and none of ANR’s Class C-1 common shares (a 21% effective ownership).
c.
On April 29, 2018, Contura Energy, Inc. (“Contura”), along with ANRI and ANRH (the “Alpha Companies”), entered into a definitive merger agreement providing for an all stock transaction. The transaction, which has been unanimously approved by the boards of directors of all parties, is expected to close in 2018, subject to the Alpha Companies shareholder approval and the satisfaction of other customary conditions.
As a result of the proposed merger and subject to the terms and conditions of the merger agreement, each outstanding share of Class C-1 common stock of ANRI and each outstanding share of common stock of ANRH will be converted into the right to receive 0.4071 shares of Contura’s common stock, representing approximately 46.5% ownership in the merged entity based on current stock prices and capital structures. Each outstanding share of Class C-2 common stock of ANRI (held exclusively by ANRH) will be canceled.
ANRI is required to pay Contura a termination fee of $19,000 under certain circumstances and is also required to reimburse Contura for fees and expenses incurred in connection with the transaction contemplated by the merger agreement if the merger agreement is terminated because shareholder approval is not obtained at the ANRH and ANRI special meetings. This reimbursement is limited to $9,000, which would be credited against the termination fee to be paid by ANRI. Contura is also required to pay ANRI a termination fee of $19,000 under certain circumstances.
The completion of the transaction was subject to compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). However, Contura and the Alpha Companies received early termination of the applicable waiting period under the HSR Act on July 2, 2018.
On July 16, 2018, Contura, along with the Alpha Companies, announced the confidential submission by Contura of a registration statement on Form S-4 with the U.S. Securities and Exchange Commission (the “SEC”) relating to the previously announced proposed merger between the companies. Contura expects to list its common stock on the New York Stock Exchange. Contura shares currently trade on the OTC market.
This initial submission is preliminary. A revised Form S-4, including a joint proxy statement for the Alpha Companies special meetings and prospectus, containing updated information will be filed and available on the SEC’s website prior to any vote by the Alpha Companies stockholders on the proposed transaction.
d.
The Company’s subsequent events have been evaluated through August 16, 2018, the date at which the Financial Statements were available to be issued and determined there are no other items to disclose.

F-111




Alpha Natural Resources Holdings, Inc.

Condensed Financial Statements
(Unaudited)


As of June 30, 2018 and December 31, 2017 and for the six months ended June 30, 2018 and 2017





F-112

ALPHA NATURAL RESOURCES HOLDINGS, INC.
CONDENSED STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in thousands, except for share and per share data)
 
Six Months Ended
June 30,
 
2018
 
2017
General and Administrative
$
(542
)
 
$
—

Loss before income taxes
$
(542
)
 
$
—

Income tax benefit
—

 
—

Net Loss
$
(542
)
 
$
—

 
 
 
 
Basic & Diluted loss per common share
$
(0.13
)
 
$
—

 
 
 
 
Weighted average shares - Basic and diluted
4,223,290

 
4,223,290

See accompanying Notes to Condensed Financial Statements


F-113

ALPHA NATURAL RESOURCES HOLDINGS, INC.
CONDENSED BALANCE SHEETS
(Amounts in thousands, except for sha re and per share data)
 
June 30,
2018
 
December 31,
2017
 
(Unaudited)
Assets
 
 
 
Non-current Assets:
 
 
 
Equity Investment in ANR, Inc.
$
—

 
$
—

Total assets
$
—

 
$
—

 
 
 
 
Liabilities and Stockholders’ Equity (Deficit)
 
 
 
Payable to related party
$
542

 
$
—

Total Liabilities
$
542

 
$
—

 
 
 
 
Stockholders’ Equity (Deficit)
 
 
 
Preferred stock - par value $0.01, 0 shares authorized at June 30, 2018, 6,800,000 shares authorized, issued and outstanding at December 31, 2017
—

 
68

Common stock - par value $0.01, 5,000,000 shares authorized, 4,223,290 shares issued and outstanding at June 30, 2018 and 7,000,000 shares authorized, issued and outstanding at December 31, 2017
43

 
70

Additional paid-in capital
196

 
101

Accumulated deficit
(781
)
 
(239
)
Total stockholders’ equity (deficit)
(542
)
 
—

Total liabilities and stockholders’ equity (deficit)
$
—

 
$
—

See accompanying Notes to Condensed Financial Statements


F-114

ALPHA NATURAL RESOURCES HOLDINGS, INC.
CONDENSED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in thousands)
 
Six Months Ended
June 30,
 
2018
 
2017
Operating activities:
 
 
 
Net loss
$
(542
)
 
$
—

Adjustments to reconcile net loss to net cash provided by operating activities:
 
 
 
Payable to related party
542

 
—

Net cash provided by operating activities
—

 
—

 
 
 
 
Investing activities:
 
 
 
Net cash provided by investing activities
—

 
—

 
 
 
 
Financing activities:
 
 
 
Net cash provided by financing activities
—

 
—

 
 
 
 
Net decrease in cash and cash equivalents
—

 
—

Cash and cash equivalents at beginning of period
—

 
—

Cash and cash equivalents at end of period
$
—

 
$
—

See accompanying Notes to Condensed Financial Statements


F-115

ALPHA NATURAL RESOURCES HOLDINGS, INC.
CONDENSED STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT) (Unaudited)
(Amounts in thousands)
 
Preferred Stock
 
Common Stock
 
Additional Paid in Capital
 
Accumulated Deficit
 
Total Stockholders' Equity (Deficit)
 
Shares
 
Amount
 
Shares
 
Amount
 
 
 
Balances, December 31, 2016
6,800

 
$
68

 
7,000

 
$
70

 
$
101

 
$
(239
)
 
$
—

Net Loss
—

 
—

 
—

 
—

 
—

 
—

 
—

Balances December 31, 2017
6,800

 
68

 
7,000

 
70

 
101

 
(239
)
 
—

Reclassification and charter amendment
(6,800
)
 
(68
)
 
(2,777
)
 
(27
)
 
95

 
—

 
—

Net loss
—

 
—

 
—

 
—

 
—

 
(542
)
 
(542
)
Balances, June 30, 2018
—

 
$
—

 
4,223

 
$
43

 
$
196

 
$
(781
)
 
$
(542
)
See accompanying Notes to Condensed Financial Statements


F-116
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)



1. Business and Basis of Presentation
Business
Alpha Natural Resources Holdings, Inc’s. (the “Company” or “ANRH”) sole asset is its ownership investment in ANR, Inc. and its consolidated subsidiaries (“ANRI”). As of June 30, 2018, ANRH owned all of ANRI’s Class C-2 common shares (4,223,400). ANRI is primarily engaged in the business of extracting, processing and marketing steam and metallurgical coal from surface and deep mines, and mainly sells to electric utilities, steel and coke producers, industrial customers and coal brokers. ANRI, through its subsidiaries, is also involved in marketing coal produced by others to supplement its own production. In addition, ANRI is responsible for reclaiming properties where mining is completed, or no active mining is occurring.
ANRH and ANRI were formed as a result of the bankruptcy proceedings of Alpha Natural Resources, Inc. ANRH is domiciled in Bristol, Tennessee.
Basis of Presentation
The condensed statements of operations, balance sheets, statements of cash flows and statements of stockholders’ equity (deficit) of the Company (collectively the “Financial Statements”), have been prepared in accordance with generally accepted accounting principles in the United States of America (“U.S. GAAP”).
Certain information and footnote disclosures normally included in annual financial statements prepared in accordance with U.S. GAAP have been omitted. The interim Condensed Financial Statements of the Company presented in this report are unaudited. The results of operations for any interim period are not necessarily indicative of the results to be expected for the full year. These Condensed Financial Statements should be read in conjunction with the Company’s audited Financial Statements and the notes thereto as of and for the year ended December 31, 2017. The Condensed balances presented as of December 31, 2017 are derived from the Company’s audited Financial Statements.
2. Summary of Significant Accounting Policies
Use of Estimates
The preparation of the condensed financial statements requires management to make estimates and assumptions that affect the amounts reported in the condensed financial statements and accompanying notes. Significant items subject to such estimates and assumptions include current and deferred income taxes. Estimates are based on facts and circumstances believed to be reasonable at the time; however, actual results could differ from those estimates.
Equity Method Investments
Investments in unconsolidated affiliates that the Company has the ability to exercise significant influence over, but not control, are accounted for under the equity method of accounting. Under the equity method of accounting, the Company records its proportionate share of the entity’s net income or loss at each reporting period in the statements of operations, with a corresponding entry to increase or decrease the carrying value of the investment. Proportionate losses are only recorded to the extent that the carrying value is not reduced below zero.
Income Ta x es
The Company recognizes deferred tax assets and liabilities using enacted tax rates for the effect of temporary differences between the book and tax basis of recorded assets and liabilities. Deferred tax assets are reduced by a valuation allowance, if it is more likely than not that some portion or all of the deferred tax asset will not be realized. In evaluating its ability to recover deferred tax assets within the jurisdiction in which they arise, the Company considers all available positive and negative evidence, including the expected reversals of taxable temporary differences, projected future taxable income, taxable income available via carryback to prior years, tax planning strategies, and results of recent equity income or losses.

F-117
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)


Related Party Transactions
For the six months ended June 30, 2018 and 2017, the Company incurred certain nominal expenses. The aforementioned immaterial expenses were recorded and paid by ANRI and there is no obligation to repay ANRI. Therefore, no expenses associated with these nominal amounts were recorded or recognized by the Company in its Condensed Financial Statements. The Company incurred $542 in advisory and professional fees for the six months ended June 30, 2018 that was incremental to the nominal expenses incurred by ANRI. Such expenses are reflected in the Condensed Statements of Operations, and since ANRI paid the $542 on behalf of the Company, a corresponding related party payable is reflected on the Condensed Balance Sheet as of June 30, 2018. Since the $542 of expense and related party payable was incurred in conjunction with the proposed merger with Contura (see note 8), the related party payable is expected to be settled in conjunction with the proposed merger. There were no additional material related party transactions for the six months ended June 30, 2018 and 2017.
3. Earnings per Share
The number of shares used to calculate basic earnings per common share is based on the weighted average number of the Company’s outstanding common shares during the respective period. The number of shares used to calculate diluted earnings per common share is based on the number of common shares used to calculate basic earnings per share plus the dilutive effect of stock options and restricted stock units held by the Company’s employees and directors during the period. In periods of net loss, the number of shares used to calculate diluted earnings per share is the same as basic earnings per share.
The following table presents the net loss per common share (basic and diluted are equivalent since there is no dilutive effect) for the six months ended June 30, 2018 and 2017:
 
Six Months Ended
June 30,
 
2018
 
2017
Net Loss
$
(542
)
 
$
—

Basic & Diluted
 
 
 
Weighted average common shares outstanding - basic (a)
4,223,290

 
4,223,290

Net Loss per common share
$
(0.13
)
 
$
—

______________
(a)
On February 15, 2018, stockholders approved the Company’s proposal to exchange shares of the existing classes and series of stock for new shares at specified exchange ratios. Following stockholder approval and the effectiveness of the reclassifications, ANRH has one class of common stock. The total common shares authorized equals 5,000,000, with 4,223,290 currently issued and outstanding. Preferred shares were eliminated in the reclassification. There was no change in relative shareholders’ rights, rank, or value before and after the reclassification. Accordingly, earnings per share has been retrospectively adjusted for the revised number of common shares.

4. Commitments and Contingencies
Estimated losses from loss contingencies are accrued by a charge to income when information available indicates that it is probable that an asset has been impaired or a liability has been incurred and the amount of the loss can be reasonably estimated. There were no outstanding commitments of the Company as of June 30, 2018.
If a loss contingency is not probable or reasonably estimable, disclosure of the loss contingency is made in the condensed financial statements when it is at least reasonably possible that a loss may be incurred and that the loss could be material. No liability has been recorded as of June 30, 2018.

F-118
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)


5. Equity Method Investment
ANRH’s investment in ANRI is accounted for under the equity method. At July 26, 2016, $239 was assigned to the equity investment. The carrying amount of the investment in ANRI was $0 at June 30, 2018 and December 31, 2017. Based on a closing price of $27.60 (as obtained from the OTC US exchange) for ANRI’s Class C-1 common stock (ANRI’s Class C-2 shares do not trade), the fair value of the investment in ANRI was $116,563 at June 30, 2018. Summary financial information for the investee company as of June 30, 2018 and December 31, 2017 and for the periods ended June 30, 2018 and 2017 is as follows:
 
June 30,
2018
 
December 31, 2017
Financial Position:
 
 
 
Total Assets
$
812,173

 
$
876,080

Total Liabilities
$
869,629

 
$
999,093

Stockholders’ equity (deficit)
$
(57,456
)
 
$
(123,013
)
 
Six Months Ended
June 30,
 
2018
 
2017
Results of Operations:
 
 
 
Net Income
$
64,621

 
$
23,747

6. Segment
The Company has only one reportable segment which holds the investment in ANRI.
7. Income Taxes
The income tax expense (benefit) for the six month periods ended June 30, 2018 and 2017 was $0.
Impacts of the Tax Cuts and Jobs Act (“Tax Act”)
On December 22, 2017, the Tax Act was signed into law. The Tax Act contains significant changes to corporate taxation, including (i) the reduction of the corporate tax rate from 35% to 21%, (ii) the acceleration of tax depreciation for certain business assets, (iii) the repeal of the domestic production deduction, (iv) additional limitations on the deductibility of interest expense, and (v) expanded limitations on executive compensation. Tax reform eliminated the alternative minimum tax (“AMT”) for corporations while allowing the continued use of AMT credit carryforwards and allowing future refunds of these credits. Except for the acceleration of tax depreciation for certain business assets effective in September of 2017, the changes were effective as of January 1, 2018.
The tax rate change impacted the components of the deferred tax assets/liabilities at June 30, 2018 and December 31, 2017, with no change to the net deferred tax assets/liabilities.
Unrecognized Tax Benefits
The Company has not historically recorded any unrecognized tax benefits. Similarly, the Company is not aware of any unrecognized tax benefit requirements as of June 30, 2018 or December 31, 2017. To the extent an unrecognized tax benefit would have been recorded, the Company has elected to treat the corresponding interest and penalties as part of income tax expense.
8. Definitive Merger Agreement
On April 29, 2018, Contura Energy, Inc. (“Contura”), along with ANRI and ANRH (the “Alpha Companies”), entered into a definitive merger agreement providing for an all stock transaction. The transaction, which has been unanimously approved by

F-119
ALPHA NATURAL RESOURCES HOLDINGS, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)


the boards of directors of all parties, is expected to close in 2018, subject to the Alpha Companies shareholder approval and the satisfaction of other customary conditions.
As a result of the proposed merger and subject to the terms and conditions of the merger agreement, each outstanding share of Class C-1 common stock of ANRI and each outstanding share of common stock of ANRH will be converted into the right to receive 0.4071 shares of Contura’s common stock, representing approximately 46.5% ownership in the merged entity based on current stock prices and capital structures. Each outstanding share of Class C-2 common stock of ANRI (held exclusively by ANRH) will be canceled.
ANRI is required to pay Contura a termination fee of $19,000 under certain circumstances and is also required to reimburse Contura for fees and expenses incurred in connection with the transaction contemplated by the merger agreement if the merger agreement is terminated because shareholder approval is not obtained at the ANRH and ANRI special meetings. This reimbursement is limited to $9,000, which would be credited against the termination fee to be paid by ANRI. Contura is also required to pay ANRI a termination fee of $19,000 under certain circumstances.
The completion of the transaction was subject to compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). However, Contura and the Alpha Companies received early termination of the applicable waiting period under the HSR Act on July 2, 2018.
The Company incurred expenses of $542 in connection with the merger for the six months ended June 30, 2018.
On July 16, 2018, Contura, along with the Alpha Companies, announced the confidential submission by Contura of a registration statement on Form S-4 with the U.S. Securities and Exchange Commission (the “SEC”) relating to the previously announced proposed merger between the companies. Contura expects to list its common stock on the New York Stock Exchange. Contura shares currently trade on the OTC market.
This initial submission is preliminary. A revised Form S-4, including a joint proxy statement for the Alpha Companies special meetings and prospectus, containing updated information will be filed and available on the SEC’s website prior to any vote by the Alpha Companies stockholders on the proposed transaction.
9. Subsequent Events
The Company’s subsequent events have been evaluated through August 16, 2018, the date at which the Condensed Financial Statements were available to be issued and determined there are no items to disclose.


F-120






ANR, Inc.

Consolidated Financial Statements
(with Independent Auditors’ Report Thereon)


As of December 31, 2017 and 2016 and the year ended December 31, 2017 and the period from July 26 through December 31, 2016





F-121


Independent Auditors’ Report

The Board of Directors
ANR, Inc.:
We have audited the accompanying consolidated financial statements of ANR, Inc. and subsidiaries (the Company), which comprise the consolidated balance sheets as of December 31, 2017 and 2016, and the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity (deficit), and cash flows for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016, and the related notes to the consolidated financial statements.
Management’s Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these consolidated financial statements in accordance with U.S. generally accepted accounting principles; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of consolidated financial statements that are free from material misstatement, whether due to fraud or error.
Auditors’ Responsibility
Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the consolidated financial statements. The procedures selected depend on the auditors’ judgment, including the assessment of the risks of material misstatement of the consolidated financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity’s preparation and fair presentation of the consolidated financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity’s internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of ANR, Inc. and its subsidiaries as of December 31, 2017 and 2016, and the results of their operations and their cash flows for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016 in accordance with U.S. generally accepted accounting principles.
Reorganization Proceedings under Chapter 11 of the United States Bankruptcy Code
The consolidated financial statements of the Company reflect the transactions that occurred effective July 26, 2016 in accordance with the Second Amended Joint Plan of Reorganization (POR) for Alpha Natural Resources, Inc. (Alpha). The POR provided for the formation of ANR, Inc. and the sale of a number of Alpha’s assets to Contura Energy, Inc., which was a new entity established by Alpha’s former first lien lenders. The consolidated financial statements include all the adjustments necessary for the application of fresh start accounting to the ANR, Inc. successor entity.

F-122


/s/ KPMG LLP
Richmond, Virginia
March 31, 2018, except for note 1(c), which is as of June 7, 2018

F-123


ANR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands)
 
Year Ended
December 31, 2017
 
Period from July 26 through
 December 31, 2016
Revenues:
 
 
 
Coal revenues
$
1,186,882

 
$
372,724

Freight and handling revenues
38,987

 
19,095

Other revenues
10,469

 
5,654

Total revenues
1,236,338

 
397,473

 
 
 
 
Costs and expenses:
 
 
 
Cost of coal sales (exclusive of items shown separately below)
938,056

 
337,890

(Gain) loss on disposition of property, plant and equipment
604

 
(2,955
)
Freight and handling costs
38,987

 
19,095

Other expenses
759

 
355

Depreciation, depletion and amortization
14,710

 
19,828

Amortization of acquired coal supply agreements, net
7,684

 
6,162

Accretion of asset retirement obligations
22,733

 
9,762

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
34,465

 
14,174

Impairment – contingent credit support
—

 
21,954

Mark-to-market adjustment – acquisition-related obligations
15,112

 
14,647

Total costs and expenses
1,073,110

 
440,912

Income (loss) from operations
163,228

 
(43,439
)
Other income (expense):
 
 
 
Interest expense
(14,504
)
 
(9,549
)
Interest income
2,788

 
692

Loss on early extinguishment of debt
(16,348
)
 
—

Miscellaneous income (expense), net
(390
)
 
437

Total other expense, net
(28,454
)
 
(8,420
)
Income (loss) from continuing operations before income taxes
134,774

 
(51,859
)
Income tax (expense) benefit
(17,584
)
 
18,214

Net income (loss) from continuing operations
117,190

 
(33,645
)
Discontinued operations (Note 4)
 
 
 
Loss from discontinued operations (including loss on disposal of $130,826 for the year ended December 31, 2017) before income taxes
$
(197,364
)
 
$
(23,472
)
Income tax benefit
41,288

 
—

Loss from discontinued operations
(156,076
)
 
(23,472
)
Net loss
$
(38,886
)
 
$
(57,117
)
 
 
 
 

F-124


Basic & Diluted income (loss) per common share:
 
 
 
Income (loss) from continuing operations
$
5.82

 
$
(1.67
)
Loss from discontinued operations
(7.75
)
 
(1.17
)
Net loss
$
(1.93
)
 
$
(2.84
)
 
 
 
 
Weighted average shares - Basic & Diluted
20,124,374

 
20,111,040

See accompanying Notes to Consolidated Financial Statements.

F-125


ANR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(Amounts in thousands)
 
Year Ended
 December 31, 2017
 
Period from July 26 through
December 31, 2016
Net loss
$
(38,886
)
 
$
(57,117
)
Other comprehensive income (loss), net of tax:
 
 
 
Current period actuarial gain (loss) on employee benefit plans, net of income tax of $0 and ($18,214) for the year ended December 31, 2017 and the period ended December 31, 2016, respectively
(56,389
)
 
28,220

Total comprehensive loss
$
(95,275
)
 
$
(28,897
)
See accompanying Notes to Consolidated Financial Statements.


F-126


ANR, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except f or share and per share data)
 
December 31,
 2017
 
December 31,
 2016
Assets
 
 
 
Current assets:
 
 
 
Cash and cash equivalents
$
45,978

 
$
77,382

Trade accounts receivable, net
126,170

 
101,003

Notes and other receivables
23,281

 
13,985

Inventories, net
63,913

 
45,052

Restricted cash
101,599

 
133,542

Prepaid expenses and other current assets
25,116

 
17,499

Current assets - Discontinued operations
—

 
20,604

Total current assets
386,057

 
409,067

Property, plant and equipment, net
144,307

 
133,159

Acquired coal supply agreements (net of accumulated amortization of $21,052 and $13,339, respectively)
398

 
8,111

Long-term restricted cash
260,797

 
381,685

Other non-current assets
84,521

 
34,043

Non-current assets - Discontinued operations
—

 
94,208

Total assets
$
876,080

 
$
1,060,273

 
 
 
 
Liabilities and Stockholders’ Equity (Deficit)
 
 
 
Current liabilities:
 
 
 
Current portion of long-term debt
$
18,655

 
$
110,192

Trade accounts payable
71,733

 
44,656

Accrued expenses and other current liabilities
186,540

 
187,391

Current liabilities - Discontinued operations
—

 
34,981

Total current liabilities
276,928

 
377,220

Long-term debt, net of current portion
179,605

 
195

Workers compensation and black lung
227,623

 
213,176

Pension and postretirement medical benefit obligations
206,966

 
204,569

Asset retirement obligations
57,306

 
76,571

Other non-current liabilities
50,665

 
69,695

Non-current liabilities - Discontinued operations
—

 
146,608

Total liabilities
999,093

 
1,088,034

 
 
 
 
Commitments and Contingencies (Note 20)
 
 
 
 
 
 
 

F-127


Stockholders’ Equity (Deficit)
 
 
 
Preferred stock - par value $0.01, 6,800,000 shares authorized, 6,800,000 issued and outstanding at December 31, 2017 and December 31, 2016
68

 
68

Common stock - par value $0.01, 12,000,000 shares authorized, 10,018,000 and 10,000,000 issued and outstanding at December 31, 2017 and December 31, 2016, respectively
100

 
100

Additional paid-in capital
991

 
968

Accumulated other comprehensive income (loss)
(28,169
)
 
28,220

Accumulated deficit
(96,003
)
 
(57,117
)
Total stockholders’ equity (deficit)
(123,013
)
 
(27,761
)
Total liabilities and stockholders’ equity (deficit)
$
876,080

 
$
1,060,273

See accompanying Notes to Consolidated Financial Statements.

F-128


ANR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
 
Year Ended
 December 31, 2017
 
Period from July 26 though
 December 31, 2016
Operating activities:
 
 
 
Net loss
$
(38,886
)
 
$
(57,117
)
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
 
 
 
Depreciation, depletion, and amortization
21,829

 
4,257

Amortization of acquired coal supply agreements, net
7,684

 
6,162

Amortization of debt issuance costs
4,179

 
3,021

Accretion of asset retirement obligations
58,005

 
29,148

Mark-to-market adjustment - acquisition-related obligations
15,112

 
14,647

Deferred income taxes
—

 
(18,214
)
(Gain) loss on disposition of property, plant, and equipment
131,430

 
(2,955
)
Impairment - contingent credit support
—

 
21,954

Loss on early extinguishment of debt
16,348

 
—

Changes in operating assets and liabilities:
 
 
 
Trade accounts receivable, net
(25,167
)
 
(31,333
)
Notes and other receivables
(9,296
)
 
33,774

Inventories, net
(18,861
)
 
11,544

Prepaid expenses and other current assets
(8,051
)
 
11,620

Other non-current assets
(37,747
)
 
3,901

Trade accounts payable
23,923

 
(30,121
)
Accrued expenses and other current liabilities
(3,827
)
 
(39,019
)
Workers compensation and black lung
(18,785
)
 
(1,179
)
Pension and postretirement medical benefit obligations
(20,760
)
 
(7,826
)
Asset retirement obligations
(36,184
)
 
(13,441
)
Other non-current liabilities
(28,246
)
 
2,139

Net cash provided by (used in) operating activities
32,700

 
(59,038
)
Investing activities:
 
 
 
Capital expenditures
(57,370
)
 
(4,319
)
Release of restricted cash, net
189,245

 
3,649

Payments on disposition of property, plant, and equipment
(205,053
)
 
—

Proceeds from sale of property, plant and equipment
4,553

 
1,821

Net cash provided by (used in) investing activities
(68,625
)
 
1,151

Financing activities:
 
 
 
Principal repayments of long term debt
(128,639
)
 
(111
)
Proceeds from term loan
145,500

 
—

Letter of credit and AR securitization facilities fees
(3,510
)
 
—

Debt fees
(4,751
)
 
—

Principal repayments of capital lease obligations and notes payable
(4,079
)
 
(1,579
)

F-129


Net cash provided by (used in) financing activities
4,521

 
(1,690
)
Net decrease in cash and cash equivalents
(31,404
)
 
(59,577
)
Cash and cash equivalents at beginning of period
77,382

 
136,959

Cash and cash equivalents at end of period
$
45,978

 
$
77,382

 
 
 
 
Supplemental cash flow information - Discontinued Operations:
 
 
 
Net cash (used in) operating activities of discontinued operations included above
$
(42,302
)
 
$
(29,301
)
Net cash (used in) investing activities included above
$
(144,450
)
 
$
(75
)
 
 
 
 
Supplemental cash flow information:
 
 
 
Cash paid for interest
$
9,723

 
$
3,659

Cash received for income tax refunds
$
7,553

 
$
961

Supplemental disclosure of non-cash investing and financing activities:
 
 
 
Accrued capital expenditures
$
1,458

 
$
837

See accompanying Notes to Consolidated Financial Statements.

F-130


ANR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT)
(Amounts in thousands)
 
Preferred Stock
 
Common Stock
 
Additional Paid in Capital
 
Accumulated Other Comprehensive Income (Loss)
 
Accumulated Deficit
 
Total Stockholders' Equity (Deficit)
 
Shares
 
Amount
 
Shares
 
Amount
 
 
 
 
Balances, July 26, 2016
6,800

 
$
68

 
10,000

 
$
100

 
$
968

 
$
—

 
$
—

 
$
1,136

Net loss
—

 
—

 
—

 
—

 
—

 
—

 
(57,117
)
 
(57,117
)
Other comprehensive income
—

 
—

 
—

 
—

 
—

 
28,220

 
—

 
28,220

Balances, December 31, 2016
6,800

 
68

 
10,000

 
100

 
968

 
28,220

 
(57,117
)
 
(27,761
)
Net loss
—

 
—

 
—

 
—

 
—

 
—

 
(38,886
)
 
(38,886
)
Other comprehensive loss
—

 
—

 
—

 
—

 
—

 
(56,389
)
 
—

 
(56,389
)
Issuance of Class C-3 Common Shares
—

 
—

 
18

 
—

 
23

 
—

 
—

 
23

Balances, December 31, 2017
6,800

 
$
68

 
10,018


$
100

 
$
991

 
$
(28,169
)
 
$
(96,003
)
 
$
(123,013
)
See accompanying Notes to Consolidated Financial Statements.

F-131
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

(1) Business and Basis of Presentation
(a) Business
ANR, Inc. and its consolidated subsidiaries (the “Company”, “ANR” or “Alpha”) are primarily engaged in the business of extracting, processing and marketing steam and metallurgical coal from surface and deep mines, and selling its coal to electric utilities, steel and coke producers, industrial customers, and coal brokers. The Company, through its subsidiaries, is also involved in marketing coal produced by others to supplement its own production.
At December 31, 2017, the Company’s coal operations consisted of fourteen deep mines, six surface mines, nine preparation plants and two barge loadouts located in West Virginia. The Company is also responsible for reclaiming properties where mining is completed, or no active mining is occurring. At December 31, 2017, the Company had approximately 2,700 employees, of which 41 are affiliated with union representation with the United Mine Workers of America (“UMWA”). The Company has one reportable segment and conducts mining operations in the Central Appalachia region of the United States.
(b) Basis of Presentation
The consolidated financial statements include Alpha and its majority owned and controlled subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.
(c) Correction of Previously Issued Consolidated Financial Statements
Subsequent to approval of its consolidated financial statements, the Company determined it was a Public Business Entity (PBE) and subject to the related disclosure requirements for PBEs in accordance with accounting principles generally accepted in the United States of America (“GAAP”). As a result, these consolidated financial statements have been corrected to include the previously omitted disclosures noted below:
•
Earnings per share has been included on the Consolidated Statements of Operations and a separate note has been added (see Note 6).
•
A statement has been added to disclose that the Company operates in one segment (see Note 1(a)).
•
Adoption dates for certain Accounting Standards Updates not yet adopted have been revised to include the dates related to a PBE (see Note 3).
•
The income tax note has been revised to include a rate reconciliation, listing of deferred tax assets and liabilities, and the tax effected amount of net operating losses and expiration dates (see Note 17).
(2) Emergence from Bankruptcy and Fresh Start Accounting
ANR, Inc. (also referred to as “Successor”) was formed as a result of the bankruptcy of Alpha Natural Resources, Inc. (the “Predecessor”) and substantially all of its affiliated companies (collectively, “Old ANR”).
On August 3, 2015 (the “Petition Date”), Old ANR filed a voluntary petition for reorganization under Chapter 11 bankruptcy protection (the “Bankruptcy Petition”) in the United States Bankruptcy Court for the Eastern District of Virginia Richmond Division (the “Bankruptcy Court”) via Alpha Natural Resources, Inc., et al. Case No. 15-33896 (KRH). Old ANR continued to operate their businesses and manage their properties as “debtors in possession” (“DIP”) under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court.
For periods subsequent to filing the Chapter 11 Petitions, the Company has applied the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 852, “Reorganizations” (“ASC 852”); in preparing the Successor consolidated financial statements. ASC 852 requires that the financial statements distinguish transactions and events that are directly associated with the reorganization from the ongoing operations of the business.

F-132
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

On May 26, 2016 the Bankruptcy Court approved the Second Amended Disclosure Statement with respect to the Second Amended Joint Plan of Reorganization of the Predecessor entity and Debtors in Possession (the “Plan of Reorganization,” “Plan,” or “POR”) with a voting deadline of June 29, 2016. On July 12, 2016, the United States Bankruptcy Court confirmed the Plan of Reorganization.
On July 26, 2016, ANR officially emerged as a private company (the “Effective Date”). On the Effective Date, the Company applied fresh start accounting in accordance with ASC 852. In addition to applying fresh start accounting, the Company’s consolidated financial statements reflect all impacts of the transactions as a result of the Plan. The effects of the Plan relate to the cancellation of debt and equity of the Predecessor and issuance of new debt and new equity by the Successor.
Upon emergence from bankruptcy, the Company effectively split into two entities. ANR emerged, and pursuant to an asset purchase agreement (“APA”) that closed simultaneously with the effectiveness of the POR, Old ANR sold a number of their assets to Contura Energy, Inc. (or “Contura”), which was a new entity established by Old ANR’s former First Lien Lenders.
Per fresh start accounting, a new entity has been created for financial reporting purposes. References within the financial statements and related footnotes to Successor are in reference to reporting dates subsequent to July 26, 2016.
Common and Preferred Stock
Upon emergence, the Company had four classes of stock in the following authorized amounts:
•
6,500,000 shares of Preferred A Stock, all issued and outstanding
•
300,000 shares of Preferred B Stock, all issued and outstanding
•
7,000,000 shares of Common C-1 Stock, all issued and outstanding
•
3,000,000 shares of Common C-2 Stock, all issued and outstanding
The different classes of stock had different economic and governance rights under the Company’s amended and restated certificate of incorporation. The Preferred A and Preferred B stockholders voted as a single class on one member of the Company’s Board of Directors. The Common C-1 and C-2 stockholders voted as a single class on four members of the Company’s Board of Directors.
See Notes 19 and 22 regarding changes in common and preferred stock post-emergence.
POR - Summary
The following information represents a summary of certain provisions of the POR, as confirmed by the Bankruptcy Court pursuant to the Confirmation Order and is not intended to be a complete description of the POR. Subsequent amended agreements, driven by transactions occurring in 2017, have revised or superseded certain obligations put in place by the POR (see Note 4).
Asset Sale to Contura Under the POR
On the Effective Date, the Predecessor entity and Contura consummated the asset sale to Contura in accordance with the Bankruptcy Code, the confirmation order and the terms of the Stalking Horse APA. Per the POR, the Predecessor entity in this case (Alpha Natural Resources, Inc.; Alex Energy, Inc.; Alpha Coal Resources Company, LLC; Alpha Coal Sales Co., LLC; Alpha Coal West, Inc.; Alpha European Sales, Inc.; Alpha Land and Reserves, LLC; Alpha PA Coal Terminal, LLC; Alpha Terminal Company, LLC; Alpha Wyoming Land Company, LLC; Boone East Development Co.; Coal Gas Recovery II, LLC; Cumberland Coal Resources, LP; Dickenson Russell Coal Company, LLC; Dickenson Russell Land and Reserves, LLC; Emerald Coal Resources, LP; Foundation Mining, LLC; Foundation PA Coal Company, LLC; Freeport Mining, LLC; Freeport Resources Company, LLC; Jay Creek Holding, LLC; Maxxim Rebuild Co., LLC; Mill Branch Coal Corporation; Paramont Coal Company Virginia, LLC; Peerless Eagle Coal Co.; Pennsylvania Land Holdings Company, LLC; Pennsylvania Services Corporation; Power Mountain Coal Company; and River Processing Corporation) transferred all or

F-133
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

some of their respective assets and the liabilities assumed by Contura pursuant to the APA and the asset sale to ANR in exchange for the First Lien Lenders' credit bid of $325,000 of First Lien Lender Claims in connection with the asset sale to Contura.
Also, per the POR, Old ANR transferred the assets to Contura or the subsidiaries of Contura designated by Contura consistent with the APA in exchange for:
•
The assumption by Contura or the subsidiaries of Contura of the liabilities assumed by Contura pursuant to the APA and the asset sale to Contura
•
Contura consideration
The assets transferred to Contura are free of all claims and liabilities unless expressly assumed in the APA.
Unsecured Creditors’ Committee (“UCC”) Settlement Under the POR
The UCC Settlement established the recoveries for all unsecured creditors in Old ANR’s bankruptcy case. Claims were divided into two separate categories based on the nature of the claims and the recoveries for each category differed. Category 1 Claims were the general unsecured non-priority claims not included in Category 2, and the Category 2 claims related to unsecured note, pension and certain governmental general unsecured non-priority claims.
The following items were stipulated within the UCC Settlement agreement:
•
The recovery for Category 1 claimholders amounted to $8,000. However, if the Company’s cash available for distribution to the first lien lenders was less than $300,000, then $2,500 was to be paid upon emergence and the remaining $5,500 payment would have taken the form of an 18-month non-interest-bearing note assumed by Contura. Subsequently, if the $8,000 did not provide recovery of at least 3% to the Category 1 claimholders, then a portion of the cash originally allocated to Category 2 claimholders would be reallocated to holders of Category 1 claims. The reallocated amount could not exceed $5,000.
•
The recovery for Category 2 claimholders amounted to 5% of the common equity of Contura, and 7-year warrants exercisable for 7.5% of common equity of Contura. The exercise price was equal to 100% recovery of first lien lenders less the amount of cash distributed to the first lien lenders as part of the reallocation and can be exercised for cash.
•
The recovery for Category 2 Claims also included an ANR royalty payment (“Contingent Revenue Obligation”) commencing 18 months after the Effective Date which consists of a 5-year contingent revenue payment of 1.5% of annual gross revenues of the Company up to $500,000 and 1.0% of annual gross revenue in excess of $500,000. In the first year of the Contingent Revenue Obligation, up to $5,000 of cash could be redirected from the holders of the rights to receive the contingent revenue payments to the Category 1 claimholders as discussed above.
•
The Category 2 Claims also amounted to 100% of the Company’s equity unless that equity was utilized to satisfy state or federal regulators.
•
The settlement required that the Predecessor entity pay the reasonable and documented fees and expenses of the Indenture Trustee Committee Members (maximum of $1,750), Second Lien Noteholder Committee, and the Second Lien Notes Trustee (maximum of $600).
•
The settlement also included Contingent Credit Support from Contura to the Company from the Effective Date through September 30, 2018. The maximum amount that could have been provided by Contura to the Company was $35,000 and would have been unsecured. The Company would have been permitted to draw against the credit support balance if at any time prior to or on September 30, 2018, the Company’s cash balance fell below $20,000.

F-134
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Reclamation Obligations Under the POR
The POR included certain settlement agreements with several state and federal regulatory agencies. ANR was required to fund restricted cash reclamation accounts for Tennessee, West Virginia, Kentucky, Virginia, and Illinois. The restricted cash reclamation accounts included the following:
•
A periodic payment amount allocated per the POR for a total of $109,000 in monthly installments. These contributions were to be made in accordance with the following allocation amounts through 2018. Allocations subsequent to 2018 were to be determined at a later date.
Allocation Date
State
Allocation Percentage
August 31, 2016 through December 31, 2018
West Virginia
83.00%
Kentucky
11.25%
Virginia
4.00%
Illinois
1.00%
Tennessee
0.75%
•
In Tennessee, 50% of the net cash proceeds of each material asset sale of any retained assets located in Tennessee
•
In West Virginia, Kentucky, Virginia or Illinois, 50% of the net cash proceeds of any material asset sale of any retained asset located in the respective state, assuming the net cash proceeds were $500 or more
◦
For West Virginia specifically, this amount was to be reduced on a dollar-for-dollar basis by the amount of any self-bonded reclamation obligations on reclaim-only sites that are assumed by Contura of the assets provided that the amount of net cash proceeds contributed to the restricted cash account were not less than 25% of the net cash proceeds
•
In West Virginia, Kentucky, Virginia or Illinois, 25% of the net cash proceeds of any material asset sale of any retained asset located in the respective state, assuming the net cash proceeds were at least $100 but less than $500
•
In West Virginia, any collateral returned to or received by the Company from the issuer of any surety bonds issued in West Virginia, unless such collateral was used to provide acceptable financial assurance for reclaim-only sites that were covered by self-bonds in West Virginia
•
In Kentucky, Virginia, Illinois and Tennessee, any collateral returned to the Company by any issuer of any surety bond issued in the respective state
•
In Tennessee $500 from the First Lien Lender Distribution
In addition to the above amounts, Alpha was required to deposit 50% of its free cash flow, as defined in the settlement agreements, into the restricted cash reclamation accounts for each state. These payments were required until either: (1) all reclaim-only sites have been fully reclaimed and any long-term treatment or water management obligations in each state are fully funded and have been covered by a method approved by the regulator for the applicable state or (2) the funding threshold amount has been reached with respect to each state.
In connection with ANR’s sale of certain idle assets to Lexington Coal Company (“LCC”) discussed below, the obligations to fund the reclamation accounts was terminated and replaced by an obligation to pay $80,000 through 2022 to restricted cash accounts established by LCC.
In addition to the payments noted above, the Company is also required to make periodic payments to restricted cash accounts for water treatment for Tennessee, West Virginia, Kentucky, Virginia, and Illinois. The restricted cash reclamation accounts for water treatment will receive contributions totaling $14,000 between 2018 and 2023. The payments were equally divided among the states in 2017. As part of the sale of certain idle assets to LCC, ANR agreed to make these contributions to restricted cash accounts established by LCC on the same schedule that had previously been established.

F-135
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The Company is required to fund a restricted cash account for mitigation. The restricted cash reclamation account for mitigation received $4,500 at emergence and $1,500 in 2017 and will receive an additional $12,000 of contributions between 2018 and 2022. Pursuant to the sale of certain assets to LCC, the Company assigned all contributions made through September 30, 2017 (amounting to $5,500) to LCC, but all remaining contributions will be made to the Company’s restricted cash account for mitigation at the previously established scheduled intervals.
Capital Resources and Liquidity Under the POR
On the Effective Date, all shares of the Company’s common stock were issued pursuant to the Plan. These shares were distributed to holders of Allowed Category 2 General Unsecured Claims as the claims process allows. The Company’s common stock, when issued as provided in the Plan, was authorized, validly issued and fully paid and non-assessable. Contura’s common stock and Contura’s warrants were distributed to holders of Allowed Secured Second Lien Noteholder Claims and Allowed Category 2 General Unsecured Claims. To the maximum extent provided by section 1145 of the Bankruptcy Code and applicable non-bankruptcy law, the issuance of the Company’s common stock, Contura’s equity, and Contura’s warrants under the Plan were exempt from registration under the Securities Act of 1933.
In accordance with the terms and conditions of the POR, the Company was required to have $135,000 of initial operating cash or a minimum cash balance of $20,000 maintained throughout the five-year forecast, and at least $117,900 of initial restricted cash (excluding any cash to support their credit facility). The Company’s operating cash, and any cash left in the Company to collateralize letters of credit backstopping the Predecessor entity asset retirement obligations and other obligations, are the property of ANR, and there are no contingent or deferred obligations to pay any such cash to Contura, the DIP lenders or the first lien lenders at any time.
Reorganization Value
Fresh start accounting provides, among other things, for a determination of the value to be assigned to the equity of the emerging company as of the date selected for financial reporting purposes. In conjunction with the bankruptcy proceedings, the Company’s POR and Disclosure Statement were confirmed by the Bankruptcy Court excluding a reorganization value.
Accounting Impact of Emergence
Upon emergence from bankruptcy in accordance with ASC 852, the Company applied fresh start accounting to its Successor consolidated financial statements as of July 26, 2016 because:
(i)
The reorganization value of the assets of the emerging entity immediately before the date of confirmation was less than the total of all post-petition liabilities and allowed claims
(ii)
The holders of existing voting shares immediately before confirmation received less than 50 percent of the voting shares of the emerging entity. In addition, the loss of control contemplated by the Plan was substantive and not temporary. That is, the new controlling interest does not revert to the stockholders existing immediately before the Plan was filed or confirmed.
Upon the application of fresh start accounting, the Company became a new entity for financial reporting purposes. As such, a new accounting basis in the identifiable assets and liabilities assumed was established with no retained earnings or accumulated other comprehensive income (loss) (“AOCI”).
The following consolidated balance sheet illustrates the impacts of the implementation of the POR and the application of fresh start accounting, which resulted in the opening Consolidated Balance Sheet for the Successor on July 26, 2016.




F-136
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

 
Predecessor
 
Effect of the Plan
 
 
 
Fresh Start Adjustments
 
 
 
Successor
Assets
 
 
 
 
 
 
 
 
 
 
 
Current assets:
 
 
 
 
 
 
 
 
 
 
 
Cash and cash equivalents
$
1,188,185

 
$
(1,051,226
)
 
 (A), (1)
 
$
—

 
 
 
$
136,959

Trade accounts receivable, net
139,362

 
(69,695
)
 
(A), (2)
 
—

 
 
 
69,667

Notes and other receivables
17,098

 
27,694

 
(A), (3)
 
10,000

 
(18)
 
54,792

Inventories, net
127,976

 
(53,221
)
 
(A)
 
(17,756
)
 
(19)
 
56,999

Restricted Cash
18,682

 
407,175

 
(4)
 
—

 
 
 
425,857

Prepaid expenses and other current assets
46,987

 
(20,165
)
 
(A)
 
—

 
 
 
26,822

Total current assets
1,538,290

 
(759,438
)
 
 
 
(7,756
)
 
 
 
771,096

Property, plant and equipment, net
2,448,548

 
(1,505,315
)
 
(A)
 
(753,106
)
 
(20)
 
190,127

Other acquired intangibles
5,556

 
—

 
 
 
15,894

 
(21)
 
21,450

Long term restricted cash
227,646

 
245,991

 
(4)
 
—

 
 
 
473,637

Other non-current assets
66,213

 
(11,877
)
 
(A)
 
40,921

 
(22)
 
95,257

Total assets
$
4,286,253

 
$
(2,030,639
)
 
 
 
$
(704,047
)
 
 
 
$
1,551,567

Liabilities and Stockholders’ Equity (Deficit)
 
 
 
 
 
 
 
 
 
 
 
Current liabilities:
 
 
 
 
 
 
 
 
 
 
 
Current portion of long-term debt
$
1,343,710

 
$
(1,339,762
)
 
(A), (5)
 
$
—

 
 
 
$
3,948

Trade accounts payable
126,416

 
(52,476
)
 
(A), (6)
 
—

 
 
 
73,940

Accrued expenses and other current liabilities
424,806

 
236,297

 
(A), (7)
 
(79,721
)
 
(23)
 
581,382

Total current liabilities
1,894,932

 
(1,155,941
)
 
 
 
(79,721
)
 
 
 
659,270

Long-term debt
1,449

 
103,658

 
(A), (8)
 
—

 
 
 
105,107

Pension and postretirement medical benefit obligations
185,424

 
 
 
 
 
73,401

 
(24)
 
258,825

Workers compensation and black lung
317,201

 
(125,198
)
 
(A), (9)
 
25,401

 
(25)
 
217,404

Asset retirement obligations
476,320

 
(174,707
)
 
(A)
 
(67,357
)
 
(26)
 
234,256

Other non-current liabilities
98,405

 
(13,034
)
 
(A), (10)
 
(9,802
)
 
(27)
 
75,569

Total liabilities not subject to compromise
2,973,731

 
(1,365,222
)
 
 
 
(58,078
)
 
 
 
1,550,431

Liabilities subject to compromise
4,586,624

 
(4,586,624
)
 
(11)
 
—

 
 
 
—

Total liabilities
7,560,355

 
(5,951,846
)
 
 
 
(58,078
)
 
 
 
1,550,431

 
 
 
 
 
 
 
 
 
 
 
 
Stockholders’ Equity (Deficit)
 
 
 
 
 
 
 
 
 
 
 
Preferred stock
—

 
68

 
(12)
 
—

 
 
 
68

Common Stock
2,351

 
(2,251
)
 
(13)
 
—

 
 
 
100

Additional paid-in capital
8,218,339

 
(8,217,371
)
 
(14)
 
—

 
 
 
968

Accumulated other comprehensive income ( loss)
(273,904
)
 
273,904

 
(15)
 
—

 
 
 
—

Treasury Stock
(273,620
)
 
273,620

 
(16)
 
—

 
 
 
—

Accumulated deficit
(10,947,268
)
 
11,593,237

 
(17)
 
(645,969
)
 
(28)
 
—

Total stockholders’ equity (deficit)
(3,274,102
)
 
3,921,207

 
 
 
(645,969
)
 
 
 
1,136

Total liabilities and stockholders’ equity (deficit)
$
4,286,253

 
$
(2,030,639
)
 
 
 
$
(704,047
)
 
 
 
$
1,551,567


F-137
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Effect of the Plan
Explanatory notes:
The following table breaks down the effect of the Plan between the Contura asset sale and other Plan adjustments at emergence:
 
 
(A)
Contura Asset
Sale
 
Other Plan
Adjustments
 
 
 
Total
 
 
Cash and cash equivalents
$
(143,800
)
 
$
(907,426
)
 
(1)
 
$
(1,051,226
)
 
Trade accounts receivable, net
(69,018
)
 
(677
)
 
(2)
 
(69,695
)
 
Notes and other receivables
(1,224
)
 
28,918

 
(3)
 
27,694

 
Inventories, net
(53,221
)
 
—

 
 
 
(53,221
)
 
Short term restricted cash
—

 
407,175

 
(4)
 
407,175

 
Prepaid expenses and other current assets
(20,165
)
 
—

 
 
 
(20,165
)
 
Property, plant and equipment
(1,505,315
)
 
—

 
 
 
(1,505,315
)
 
Long-term restricted cash
—

 
245,991

 
(4)
 
245,991

 
Other non-current assets
(11,877
)
 
—

 
 
 
(11,877
)
 
Total assets
(1,804,620
)
 
(226,019
)
 
 
 
(2,030,639
)
 
 
 
 
 
 
 
 
 
 
Current portion of long-term debt
(4,974
)
 
(1,334,788
)
 
(5)
 
(1,339,762
)
 
Trade accounts payable
(39,790
)
 
(12,686
)
 
(6)
 
(52,476
)
 
Accrued expenses and other current liabilities
(27,517
)
 
263,814

 
(7)
 
236,297

 
Long-term debt, net of current portion
(70
)
 
103,728

 
(8)
 
103,658

 
Workers compensation and black lung
(42,031
)
 
(83,167
)
 
(9)
 
(125,198
)
 
Asset retirement obligations
(174,707
)
 
—

 
 
 
(174,707
)
 
Other non-current liabilities
(10,570
)
 
(2,464
)
 
(10)
 
(13,034
)
 
Liabilities subject to compromise
—

 
(4,586,624
)
 
(11)
 
(4,586,624
)
 
Total liabilities
(299,659
)
 
(5,652,187
)
 
 
 
(5,951,846
)
 
Preferred stock
—

 
68

 
(12)
 
68

 
Common stock
—

 
(2,251
)
 
(13)
 
(2,251
)
 
Additional paid-in capital
—

 
(8,217,371
)
 
(14)
 
(8,217,371
)
 
Accumulated other comprehensive income (loss)
—

 
273,904

 
(15)
 
273,904

 
Treasury stock
—

 
273,620

 
(16)
 
273,620

 
Accumulated deficit
(1,504,961
)
 
13,098,198

 
(17)
 
11,593,237

 
Total stockholders’ equity
(1,504,961
)
 
5,426,168

 
 
 
3,921,207

 
Total liabilities and stockholders’ equity
$
(1,804,620
)
 
$
(226,019
)
 
 
 
$
(2,030,639
)

F-138
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

(1)
The following table reflects the use of operating cash at emergence:
Transfer to Contura
$
143,800

Transfer to ANR restricted cash - KCC
381,301

Transfer to various other ANR restricted cash accounts
214,825

Transfer to restricted cash - New Credit Facility
57,040

Payments to secured lenders
323,451

Settlements on emergence date
34,059

New Credit Facility Fees
21,750

New Credit Facility
(125,000
)
Subtotal
907,426

 
 
Total
$
1,051,226

(2)
Represents an adjustment to the estimated amount of receivables that are collectible.
(3)
$25,000 due to the Company based upon a settlement agreement with Contura Energy and the First Lien Agent in connection with the implementation of the Plan. Remaining $3,918 associated with return of collateral post-emergence.
(4)
Represents restricted cash set aside for reclamation, reclamation bonding, cash collateral related to letters of credit and payment of bankruptcy settled claims in accordance with the POR. The Successor restricted cash amounted to $899,494, $381,301 of which is set aside for bankruptcy liabilities to be paid out post-emergence.
(5)
($1,134,788) represents the amount of secured debt and accrued interest to lenders dismissed in bankruptcy. ($200,000) was reclassed to bankruptcy payment obligations, which is a component of accrued expenses (#7 below) to be paid out post-emergence.
(6)
Represents a bankruptcy payable obligation reclassed to #7 below.
(7)
Accrued expenses and other current liabilities;
•
$200,000- Represents amount payable to the First Lien Holders and reclassed from #5 above. This bankruptcy obligation is to be paid out post-emergence.
•
$63,814 represents settlement amounts and professional fees payable post-emergence.
•
After the effect of the plan and fresh start adjustments, $381,301 of the $581,382 of accrued expenses and other current liabilities of the Successor relates to bankruptcy obligations payable post-emergence. The estimated claims and professional fees to be paid post-emergence is being administered by Kurtzman Carson Consultants (“KCC”). To the extent that the ultimate settlements are less than $381,301, the residual amount is required to be paid to the First Lien Holders.
(8)
Represents the new facility financing amount ($125,000) less fees incurred of $21,750. Additional $408 represents adjustment to other long-term debt.
(9)
Represents revision in workers compensation and black lung benefit obligations in accordance with the POR.
(10)
$2,464 - Represents employee benefit related liability dismissed in bankruptcy.
(11)
Liabilities subject to compromise included unsecured or under-secured liabilities incurred prior to the Chapter 11 filing and consisted of the following:

F-139
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Previously Reported Balance Sheet Line Item
 
Unsecured/Partially secured debt and accrued interest
$
2,978,784

Pension, postretirement medical and other employee benefit related obligations
984,057

Provision for rejected contracts and leases
492,123

Trade accounts payable
108,907

Other accruals
22,753

Total liabilities subject to compromise
$
4,586,624

(12)
Par value of ANR’s preferred shares issued and outstanding.
(13)
Par value of ANR’s common shares issued and outstanding and cancellation of predecessor common stock.
(14)
Cancellation of predecessor additional paid-in capital, net of $968 paid-in capital established in fresh start accounting.
(15)
Elimination of predecessor other comprehensive loss.
(16)
Cancellation of predecessor Treasury Stock.
(17)
Represents the amounts that were recorded to implement the POR on the Effective Date. This process included the settlement of liabilities subject to compromise and other liabilities through a combination of cash payments, the issuance of new common and preferred stock, and the issuance of new debt. The following represents the calculation of the total pre-tax gain on the settlement of liabilities subject to compromise:
Liabilities subject to compromise
$
4,586,624

Secured debt and accrued interest
1,370,532

Postretirement medical and other employee benefit related obligations
141,531

Accounts payable, accrued liabilities, income and non-income taxes
66,192

 
 
Less amounts to settle claims:
 
Payments to secured lenders at emergence
(323,451
)
Other settlements paid at emergence
(34,059
)
Amounts transferred to KCC account to be paid out post-emergence
(381,201
)
Total pre-tax gain on plan effects
$
5,426,168

Reflects the cumulative impact of the reorganization adjustments. Additionally, these adjustments reflect the
cancellation of the Predecessor Company’s equity to accumulated earnings:
Total pre-tax gain on settlement of claims
$
5,426,168

Cancellation of Predecessor common stock
2,351

Cancellation of Predecessor paid-in capital and addition of ANR, Inc. paid-in capital
8,217,371

Elimination of AOCI
(273,904
)
Cancellation of Predecessor treasury stock
(273,620
)
Issuance of common and preferred stock
(168
)
Sale of certain assets to Contura
(1,504,961
)
Net impact on accumulated deficit
$
11,593,237


F-140
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Fresh Start Adjustments
(18)
Represents the current portion of the reclamation funding receivable due from Contura as more fully explained in Note 12, 2016 Global Reclamation Agreement & 2017 Amended Reclamation Funding Agreement, Contura Contributions.
(19)
Adjustment to value coal inventory and supply inventory at fair value.
(20)
Reflects adjustment to value property plant and equipment under various valuation techniques (market, income, cost).
(21)
Sales contract asset - The Company recorded assets of $21,450 related to above market coal sales contracts. The fair value was estimated using a discounted cash flow model representing the difference in the market price and contract price of the coal to be shipped and will be amortized into earnings as the coal is shipped.
(22)
$30,581 - Non-current reclamation receivable from Contura as more fully explained in Note 13.
$21,954 - Contingent credit support commitment as more fully explained in Note 12.
$8,159 - Workers compensation receivable - Actuarially determined adjustment for the revised amount of workers compensation liability expected to be recoverable from insurance.
($19,773) - Adjustments to advance recoupable minimum royalties to reflect estimated amounts recoupable in future periods and adjustment of equity method investments to fair value.
(23)
Represents the fair value adjustment related to the Company’s short-term asset retirement obligation. As a result of a Global Reclamation Agreement the expected current portion of cash for reclamation has been reduced compared to historical levels.
(24)
Actuarially determined revision to pension obligation determined on the emergence date.
(25)
Actuarially determined fair value adjustment based upon the population of employees the Company is responsible for post-emergence.
(26)
Asset retirement obligations - Reclamation obligations were fair valued based upon a discount rate applied to the future estimated cash expenditures.
(27)
Includes a fair value adjustment to certain of the company’s coal supply agreements ($11,996) to account for lower contracted price versus the market price on certain contracts. Also reflects the elimination of the Predecessor deferred revenue ($11,454), offset by a Contingent Revenue Obligation at fair value $13,101 and an environmental obligation of $547. See UCC Note regarding category 2 claims - Contingent Revenue Obligation.
(28)    Accumulated Deficit generated by the fresh start adjustments.
(3) Summary of Significant Accounting Policies
Use of Estimates
The consolidated financial statements have been prepared in accordance with GAAP. The preparation of the consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the Successor consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Significant items subject to such estimates and assumptions include inventories; mineral reserves; allowance for non-recoupable advanced mining royalties; asset impairments; reclamation obligations; pensions, postretirement medical and other employee benefit obligations; useful lives for depreciation, depletion, and amortization; reserves for workers’ compensation and black lung claims; current and deferred income taxes; reserves for contingencies and litigation; and fair value of financial instruments. Estimates are based on facts and circumstances believed to be reasonable at the time; however, actual results could differ from those estimates.

F-141
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Cash and Cash Equivalents
Cash and cash equivalents consist of cash held with reputable depository institutions and highly liquid, short-term investments with original maturities of three months or less. Cash and cash equivalents are stated at cost, which approximates fair market value. The Company’s cash equivalents consist of money market funds that are maintained in highly rated funds at December 31, 2017 and 2016.
Restricted Cash
Restricted cash represents cash deposits that are restricted as to withdrawal as required by certain agreements entered into by the Company and provide collateral in the amounts of $325,299 and $514,543 as of December 31, 2017 and 2016, respectively, for the credit facility, reclamation accounts, letters of credit securing the Company’s obligations under certain workers’ compensation arrangements, general liability and reclamation related bonds, which have been written on the Company’s behalf. Of the $514,543 cash deposits at December 31, 2016, $43,774 is reflected in the assets of discontinued operations. Restricted cash as of December 31, 2017 and 2016 also includes $37,097 and $44,458, respectively, that has been reserved pursuant to the POR to pay bankruptcy related liabilities and claims. Any funds remaining in this restricted cash account will be distributed to the Company’s former First Lien Lenders pursuant to the POR. The Company's restricted cash is primarily invested in interest bearing accounts.
Trade Accounts Receivable, net
Trade accounts receivable are recorded at the invoiced amount and do not bear interest. The allowance for doubtful accounts is the Company’s best estimate of the amount of probable credit losses in the Company’s existing accounts receivable. The Company establishes provisions for losses on accounts receivable when it is probable that all or part of the outstanding balance will not be collected. The Company regularly reviews its accounts receivable balances and establishes or adjusts the allowance as necessary primarily using the specific identification method. The allowance for doubtful accounts was $4,430 and $4,789 at December 31, 2017 and 2016, respectively. Account balances are written off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote.
Inventories
Coal is reported as inventory at the point in time the coal is extracted from the mine. Raw coal represents coal stockpiles that may be sold in current condition or may be further processed prior to shipment to a customer. Saleable coal represents coal stockpiles which require no further processing prior to shipment to a customer.
Coal inventories are stated at the lower of cost or net realizable value. The cost of coal inventories is determined based on the average cost of production, which includes labor, supplies, equipment costs, operating overhead, depreciation, and other related costs. Net realizable value considers the projected future sales price of the product, less estimated preparation and selling costs.
Material and supplies inventories are valued at average cost, less an allowance for obsolete and surplus items.
Advanced Mining Royalties
Lease rights to coal reserves are often acquired in exchange for royalty payments. Advanced mining royalties are advance payments made to lessors under terms of mineral lease agreements that are recoupable against future production royalties. These advanced payments are deferred and charged to operations as the coal reserves are mined. The Company regularly reviews recoverability of advanced mining royalties and establishes or adjusts the allowance as necessary using the specific identification method. Balances are generally charged off against the allowance when they are no longer recoupable. Advanced mining royalties were $330 and $290 as of December 31, 2017 and 2016, respectively, and reported in other non-current assets in the Consolidated Balance Sheets.
Property, Plant and Equipment
Costs for mine development incurred to expand capacity of operating mines or to develop new mines are capitalized and charged to operations on the units-of-production method over the estimated proven and probable reserve tons directly

F-142
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

benefiting from the capital expenditures. Mine development costs include costs incurred for site preparation and development of the mines during the development stage less any incidental revenue generated during the development stage. Mobile mining equipment and other fixed assets are stated at cost and depreciated on a straight-line basis over estimated useful lives ranging from one to 25 years. Leasehold improvements are amortized using the straight-line method, over the shorter of the estimated useful lives or term of the lease. Major repairs and betterments that significantly extend original useful lives or improve productivity are capitalized and depreciated over the period benefited. Maintenance and repairs are expensed as incurred. When equipment is retired or disposed, the related cost and accumulated depreciation are removed from the respective accounts and any profit or loss on disposal is recognized in costs and expenses. Costs to obtain owned and leased mineral rights are capitalized and amortized to operations as depletion expense using the units-of-production method. Only proven and probable reserves are included in the depletion base.
Acquired Coal Supply Agreements
Application of fresh start accounting resulted in the recognition of assets for above market-priced coal supply agreements and liabilities for below market-priced coal supply agreements on the date of the fresh start valuation. The coal supply agreements were valued based on the present value of the difference between the expected net contractual cash flows based on the stated contract terms, and the estimated net contractual cash flows derived from applying forward market prices at the acquisition date for new contracts of similar terms and conditions. The coal supply agreement assets and liabilities are being amortized over the actual amount of tons shipped under each contract. Coal supply agreement assets are reported in acquired coal supply agreements, net and liabilities are reported in other non-current liabilities in the Consolidated Balance Sheets.
Amortization of acquired coal supply agreement assets was $7,713 and $13,339 of expense and amortization of coal supply agreement liabilities was a credit to expense of ($29) and ($7,177), equating to a net expense of $7,684 and $6,162 for the year ended December 31, 2017 and for the period ended December 31, 2016, respectively, which is reported as amortization of acquired coal supply agreements, net in the Consolidated Statements of Operations. Future net amortization expense related to acquired coal supply agreements is expected to be as follows: 
2018
$
297

2019
47

Total net future amortization expense
$
344

Asset Impairment and Disposal of Long-Lived Assets
Long-lived assets, such as property, equipment, mine development costs, owned and leased mineral rights and purchased intangibles subject to amortization are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset or asset groups may not be recoverable. Recoverability of assets or asset groups to be held and used is measured by a comparison of the carrying amount of an asset or asset group to the estimated undiscounted future cash flows expected to be generated by the asset or asset group. Long-lived assets located in a close geographic area are grouped together for purposes of impairment testing when, after considering revenue and cost interdependencies, circumstances indicate the assets are used together to produce future cash flows. The Company’s asset groups generally consist of the assets and applicable liabilities of one or more mines and preparation plants and associated coal reserves for which cash flows are largely independent of cash flows of other mines, preparation plants and associated coal reserves. If the carrying amount of an asset or asset group exceeds its estimated future cash flows, the potential impairment is equal to the amount by which the carrying amount of the asset or asset group exceeds the fair value of the asset or asset group. The amount of impairment, if any, is allocated to the long-lived assets on a pro-rata basis, except that the carrying value of the individual long-lived assets are not reduced below their estimated fair value. Assets to be disposed of would separately be presented in the balance sheet and reported at the lower of the carrying amount or fair value less costs to sell and would no longer be depreciated. The assets and liabilities of a disposal group classified as held for sale would be presented separately in the Consolidated Balance Sheets. There were no long-lived asset impairments during 2017 or the period from July 26 to December 31, 2016.

F-143
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Asset Retirement Obligations
Minimum standards for mine reclamation have been established by various regulatory agencies and dictate the reclamation requirements at the Company’s operations. The Company’s asset retirement obligations consist principally of costs to reclaim acreage disturbed at surface operations, estimated costs to reclaim support acreage, treat mine water discharge and perform other related functions at company mines. The Company records these reclamation obligations at fair value in the period in which the legal obligation associated with the retirement of the long-lived asset is incurred. Changes to the liability at operations that are not currently being reclaimed are offset by increasing or decreasing the carrying amount of the related long-lived asset. Changes to the liability at operations that are currently being reclaimed are recorded to depreciation, depletion and amortization. Over time, the liability is accreted, and any capitalized cost is depreciated over the useful life of the related asset. To settle the liability, the obligation is paid, and to the extent there is a difference between the liability and the amount of cash paid, a gain or loss upon settlement is recorded. The Company annually reviews its estimated future cash flows for its asset retirement obligations. See Note 14 for further disclosures related to asset retirement obligations.
Income Taxes
The Company recognizes deferred tax assets and liabilities using enacted tax rates for the effect of temporary differences between the book and tax basis of recorded assets and liabilities. Deferred tax assets are reduced by a valuation allowance if it is more likely than not that some portion or all of the deferred tax asset will not be realized. In evaluating its ability to recover deferred tax assets within the jurisdiction in which they arise, the Company considers all available positive and negative evidence, including the expected reversals of taxable temporary differences, projected future taxable income, taxable income available via carryback to prior years, tax planning strategies, and results of recent operations. See Note 17 for further disclosures related to income taxes.
Revenue Recognition
The Company earns revenues primarily through the sale of coal, but also earns other revenues from sales of parts, equipment, rebuild and refurbishment services, and sales of natural gas. The Company recognizes revenue using the following general revenue recognition criteria: 1) persuasive evidence of an arrangement exists; 2) delivery has occurred or services have been rendered; 3) the price to the buyer is fixed or determinable; and 4) collectability is reasonably assured.
Delivery on coal sales is determined to be complete for revenue recognition purposes when title and risk of loss has passed to the customer in accordance with stated contractual terms and there are no other future obligations related to the shipment. For domestic shipments, title and risk of loss generally passes as the coal is loaded into transport carriers for delivery to the customer.
Freight and handling costs paid to third-party carriers and invoiced to coal customers are recorded as freight and handling costs and freight and handling revenues, respectively.
Deferred Financing Costs
The costs to obtain new debt financing or amend existing financing agreements are generally deferred and amortized to interest expense over the life of the related indebtedness or credit facility using the effective interest method. Unamortized deferred financing costs are presented in the balance sheet as a direct deduction from the carrying amount of the debt liability, consistent with debt discounts or premiums.
Workers’ Compensation and Pneumoconiosis (Black Lung) Benefits
Workers’ Compensation
The Company is self-insured for workers’ compensation claims at certain locations and is covered by third-party insurance providers at other locations. The liabilities for workers’ compensation claims that are self-insured by the Company (including the liability for subsidiaries utilizing high-deductible insurance programs) are estimates of the ultimate losses incurred based on the Company’s experience and include a provision for incurred but not reported losses. Adjustments to the probable ultimate liabilities are made annually based on an actuarial study and adjustments to the liability are recorded based

F-144
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

on the results of this study. These obligations are included in the Consolidated Balance Sheets as accrued expenses and other current liabilities and workers compensation and black lung, long-term liabilities. See Note 18 for further disclosures related to workers’ compensation liabilities.
Pneumoconiosis (Black Lung) Benefits
The Company is required by federal and state statutes to provide benefits to employees for awards related to black lung. The Company is self-insured at certain locations and covered by a third-party insurance provider at other locations. Charges are made to operations for self-insured black lung claims (including locations utilizing high-deductible insurance programs), as determined by an independent actuary at the present value of the actuarially computed liability for such benefits over the employee’s applicable term of service. The Company recognizes in its Consolidated Balance Sheets the amount of the Company’s unfunded Accumulated Benefit Obligation (“ABO”) at the end of the year. Amounts recognized in accumulated other comprehensive income (loss) are adjusted out of accumulated other comprehensive income (loss) when they are subsequently recognized as components of net periodic benefit cost. See Note 18 for further disclosures related to black lung benefits.
Pension and Other Postretirement Benefits
The Company is required to recognize the overfunded or underfunded status of a defined benefit pension plan as an asset or liability in its Consolidated Balance Sheets and to recognize changes in that funded status in the year in which the changes occur through other comprehensive income (loss). The Company is required to measure plan assets and benefit obligations as of the date of the Company’s fiscal year-end Consolidated Balance Sheets and provide the required disclosures as of the end of each fiscal year.
The Company accounts for health care benefits provided for current and certain retired employees and their dependents by accruing the cost of such benefits over the service lives of employees. Unrecognized actuarial gains and losses are amortized over the estimated average remaining service period for active employees and over the estimated average remaining life for retirees. The Company recognizes in its Consolidated Balance Sheet the amount of the Company’s unfunded Accumulated Postretirement Benefit Obligation (“APBO”) at the end of the year. Amounts recognized in accumulated other comprehensive income (loss) are adjusted out of accumulated other comprehensive income (loss) when they are subsequently recognized as components of net periodic benefit cost.
See Note 18 for further disclosures related to pension and other postretirement benefits.
New Accounting Pronouncements Adopted
In December 2015, the FASB issued Accounting Standards Update (“ASU”) 2015-17, Income Taxes (Topic 740), Balance Sheet Classification of Deferred Taxes (“ASU 2015-17”). The standard requires companies to classify all deferred tax liabilities and assets as noncurrent in a classified statement of financial position. The new standard was effective for annual periods beginning after December 15, 2016 and interim periods within those annual periods. Early adoption was permitted, and the Company adopted ASU 2015-17 during the period ended December 31, 2016.
In May 2015, the FASB issued ASU 2015-07, Fair Value Measurement (Topic 820), Disclosures for Investments in Certain Entities that Calculate Net Asset Value per Share (or Its Equivalent) (“ASU 2015-07”). The amendments in this update remove the requirement for the Company to categorize all investments for which fair value is measured using the net asset value per share practical expedient within the fair value hierarchy. The amendments also limit the Company’s disclosures to include only investments in which companies have elected to measure at fair value using that practical expedient. The Company is no longer required to disclose investments that are eligible to be measured at fair value using the net asset value per share practical expedient. The new standard is effective for annual periods beginning after December 15, 2016 and interim periods within those annual periods. Early adoption was permitted. The Company adopted ASU 2015-07 during the period ended December 31, 2017.
New Accounting Pronouncements Not Yet Adopted
The Company is currently evaluating the impact that the following new accounting pronouncements will have on its consolidated financial statements and disclosures.

F-145
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

In May 2014, the FASB issued ASU 2014-09, Revenue from contracts with customers (Topic 606), which, along with amendments issued in 2015 and 2016, will replace substantially all current U.S. GAAP guidance on this topic and eliminate industry-specific guidance. In addition, the standard will require disclosure of the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers.
The standard is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities), with early adoption permitted. The guidance permits two methods of adoption: full retrospective method (retrospective application to each prior reporting period presented) or modified retrospective method (retrospective application with the cumulative effect of initially applying the guidance recognized at the date of initial application and providing certain additional disclosures). The Company has not yet selected a transition method.
In January 2016, the FASB issued ASU 2016-01, Financial Instruments - Overall (Subtopic 825-10), Recognition and Measurement of Financial Assets and Financial Liabilities ("ASU 2016-01"). The amendments in this update address certain aspects of recognition, measurement, presentation and disclosure of financial instruments. ASU 2016-01 is effective for annual periods beginning after December 15, 2017 and interim periods within those annual periods. Early adoption is not permitted.
In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842), Amendments to the FASB Accounting Standards Codification ("ASU 2016-02"). ASU 2016-02 is a comprehensive new leases standard that amends various aspects of existing guidance for leases and requires additional disclosures about leasing arrangements. It will require lessees to recognize lease assets and lease liabilities for those leases classified as operating leases under previous GAAP. Topic 842 retains a distinction between finance leases and operating leases. It is effective for private entities for annual periods beginning after December 15, 2019 (December 15, 2018 for public entities) and interim periods within fiscal years beginning after December 31, 2020. Early adoption is permitted. In the financial statements in which the ASU is first applied, leases shall be measured and recognized at the beginning of the earliest comparative period presented with an adjustment to equity. Practical expedients are available for election as a package and if applied consistently to all leases.
In November 2016, the FASB issued ASU 2016-18 Statement of Cash Flows (Topic 230), Restricted Cash (“ASU 2016-18”). The amendments in the Update provide guidance on restricted cash presentation in the statement of cash flows. ASU 2016-18 is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities), and interim periods within annual periods beginning after December 15, 2019. Early adoption is permitted.
In March 2017, the FASB issued ASU 2017-07 Compensation (Topic 715), Retirement Benefits (“ASU 2017-07”). The amendments in this Update provide guidance on the presentation of retirement benefits. ASU 2017-07 is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities), and interim periods within annual periods beginning after December 15, 2019. Early adoption is permitted.
In March 2017, the FASB issued ASU 2017-08 Receivable (Topic 310-20), Nonrefundable Fees and Other Costs (“ASU 2017-08”). The amendments in this Update provide guidance on the premium amortization of purchased callable debt securities. Entities should apply the guidance to fiscal years beginning after December 15, 2019 (December 15, 2018 for public entities), and interim periods with fiscal years beginning after December 15, 2020. Early adoption is permitted, including adoption in an interim period.
In May 2017, the FASB issued ASU 2017-09 Compensation (Topic 718), Stock Compensation (“ASU 2017-09”). The amendments in this Update provide guidance on the scope of modification accounting. ASU 2017-09 is effective for all entities for annual periods, and interim periods with those annual periods, beginning after December 15, 2017. Early adoption is permitted, including adoption in an interim period.
In February 2018, the FASB issued ASU 2018-02 Income Statement - Reporting Comprehensive Income (Top 220), Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income (“ASU 2018-02”). The amendments in this Update allow entities to reclassify tax effects stranded in accumulated other comprehensive income as a result of the impact from the Tax Cuts and Jobs Act (H.R. 1) (the “Tax Act”) to retained earnings and requires entities to make new disclosures, regardless of whether the entity elects to reclassify tax effects. ASU 2018-02 is effective for all entities for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. Early adoption is permitted.

F-146
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

(4) Discontinued Operations
On October 23, 2017 the Company closed the sale of substantially all idle assets in Kentucky, Tennessee, and West Virginia to LCC with funding for the transaction under a $150,000 credit facility (see Note 12). The conveyance included real property, substantial reclamation equipment, and the transfer of ongoing royalty payment obligations associated with the properties.
As a result of the transaction, the Company is relieved of the future asset retirement obligations (“ARO”) on the properties. ANR paid LCC approximately $199,000 in cash at closing and is obligated to pay an additional $94,000 in installment payments to assist in the fulfillment of bonding, reclamation, water treatment and other obligations. The Company also assigned its right to the $32,000 reclamation funding receivable from Contura to LCC. The $199,000 of cash is comprised of approximately $140,000 of cash from the credit facility, and approximately $59,000 from the Global Reclamation Agreements (see Note 13) accounts and other restricted cash accounts of the Company.
The $94,000 of installment payments is comprised of an $80,000 note payable to LCC over a 5-year period, with payments of $17,500, including imputed interest, beginning October 23, 2018 and for three additional years on the anniversary date of the closing, plus a final payment of $10,000 on October 23, 2022. The third component relates to ANR’s obligation to contribute $14,000, including imputed interest, into LCC’s water treatment restricted cash accounts from 2018 through 2023. Contributions of $1,500 are due during 2018 and increase to $2,500 in each of the years 2019 through 2023.
In addition to the LCC transaction, there were other smaller transactions where idle properties were disposed of in 2017, with some additional transactions expected to close in early 2018 (the idled properties associated with the LCC transaction and other related transactions comprise what ANR considers an asset disposal group under ASC 360).
Based upon management’s determination that the idled property dispositions meet all of the criteria under ASC 205-20, the results of operations and the loss on disposition are reported as discontinued operations in the current and prior period presented in the Consolidated Statements of Operations. Certain reclassifications have occurred in the 2016 consolidated balance sheet to account for assets and liabilities associated with discontinued operations.
The assets and liabilities of discontinued operations as of December 31, 2016 are shown below:
 
December 31,
2016
Current assets:
 
Notes and other receivables (Reclamation funding receivable)
$
10,000

Inventories, net
402

Restricted cash
10,202

Total current assets
20,604

 
 
Property, plant and equipment, net
27,803

Long-term restricted cash
33,572

Other non-current assets (Reclamation funding receivable)
32,833

Total non-current assets
94,208

Total assets
$
114,812

 
 
Current liabilities:
 
Accrued expenses and other current liabilities (asset retirement obligations)
$
34,981

Total current liabilities
34,981

Asset retirement obligations
146,608

Total liabilities
$
181,589


F-147
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The following table reflects the activities for the discontinued operations for the year ended December 31, 2017 and the period from July 26 through December 31, 2016:
 
Year Ended
December 31, 2017
 
Period from July 26 through
December 31, 2016
Revenues:
 
 
 
Coal revenues
$
39,338

 
$
7,506

Freight and handling revenues
1,609

 
82

Other revenues
—

 
428

Total revenues
40,947

 
8,016

 
 
 
 
Costs and expenses:
 
 
 
Cost of coal sales (exclusive of items shown separately below)
63,485

 
26,710

(Gain) loss on disposition of property, plant and equipment
130,826

 
—

Freight and handling costs
1,609

 
82

Other expenses
—

 
882

Depreciation, depletion and amortization
7,119

 
(15,571
)
Accretion of asset retirement obligations
35,272

 
19,385

Total costs and expenses
238,311

 
31,488

Loss from discontinued operations before income tax benefit
(197,364
)
 
(23,472
)
Income tax benefit from discontinued operations
41,288

 
—

Loss from discontinued operations
$
(156,076
)
 
$
(23,472
)
Continued Involvement with Discontinued Operations
The Company entered into a Transitional Services Agreement with LCC to provide administrative assistance in various areas, in most cases for a six-month period after the closing date. To the extent ANR expends funds on behalf of LCC, LCC is required to reimburse those amounts. The agreement does not call for compensation to ANR over and above the costs incurred, resulting in no net cash inflow or outflow.
In addition, the Company entered into short term arrangements whereby coal being mined incidental to LCC’s reclamation activities is purchased by the Company and sold to the Company’s customers. For the period from October 24, 2017 through December 31, 2017, the Company purchased a minimal number of tons from LCC at a cost of $1,851. The Company has entered into one-year agreements with LCC covering 2018 for additional purchases of coal.
(5) Accumulated Other Comprehensive Income (Loss)
The following table summarizes the changes to accumulated other comprehensive income (loss) during the year ended December 31, 2017:
 
Balance
December 31,
 2016
 
OCI before
Reclassification
 
Amounts
Reclassified
from AOCI
 
Balance
December 31,
2017
Employee benefit costs, net
$
28,220

 
$
(56,389
)
 
$
—

 
$
(28,169
)

F-148
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The following table summarizes the changes to accumulated other comprehensive income (loss) during the period from July 26 through December 31, 2016:
 
Balance
July 26,
 2016
 
OCI before
Reclassification
 
Amounts
Reclassified
from AOCI
 
Balance
December 31,
2016
Employee benefit costs, net
$
—

 
$
28,220

 
$
—

 
$
28,220

(6) Earnings Per Share
The number of shares used to calculate basic earnings per common share is based on the weighted average number of the Company’s outstanding common shares during the respective period. The number of shares used to calculate diluted earnings per common share is based on the number of common shares used to calculate basic earnings per share plus the dilutive effect of stock options and restricted stock units held by the Company’s employees and directors during the period. In periods of net loss, the number of shares used to calculate diluted earnings per share is the same as basic earnings per share.
The following table presents the net income (loss) per common share (basic and diluted are equivalent since there is no dilutive effect of stock options or restricted stock units) for the year ended December 31, 2017 and for the period from July 26, through December 31, 2016:
 
Year Ended
December 31, 2017
 
Period from July 26 through
December 31, 2016
Net income (loss)
 
 
 
Income (loss) from continuing operations
$
117,190

 
$
(33,645
)
Loss from discontinued operations
(156,076
)
 
(23,472
)
Net loss
$
(38,886
)
 
$
(57,117
)
 
 
 
 
Basic & Diluted (2)
 
 
 
Weighted average common shares outstanding
20,124,374

 
20,111,040

Income (loss) per common share:
 
 
 
Income (loss) from continuing operations
$
5.82

 
$
(1.67
)
Loss from discontinued operations
(7.75
)
 
(1.17
)
Net loss
$
(1.93
)
 
$
(2.84
)
______________
(1)
On February 15, 2018, stockholders approved the Company’s proposal to exchange shares of the existing classes and series of stock for new shares at specified exchange ratios. Following stockholder approval and the effectiveness of the reclassifications, ANR has two classes of common stock with equivalent rights. The total common shares authorized equals 54,223,400 (50,000,000 Class C-1 and 4,223,400 Class C-2), with 20,131,152 (15,907,752 Class C-1 and 4,223,400 Class C-2) currently issued and outstanding. Class C-3 common shares and preferred shares were eliminated in the reclassification. There was no change in relative shareholders’ rights, rank, or value before and after the reclassification. Accordingly, earnings per share has been retrospectively adjusted for the new classes of common stock.
(2)
The Company has 1,782,000 outstanding stock options that are not dilutive since exercisability of these options is dependent upon a change in control contingency.


F-149
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

(7) In v entories, net
Inventories, net consisted of the following:
 
December 31,
2017
 
December 31,
 2016
Raw coal
$
17,692

 
$
12,651

Saleable coal
25,099

 
12,238

Materials, supplies and other, net
21,122

 
20,163

Total inventories, net
$
63,913

 
$
45,052

(8) Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets consisted of the following:
 
December 31,
2017
 
December 31,
 2016
Prepaid insurance
$
6,463

 
$
6,031

Prepaid workers’ compensation and state black lung
2,793

 
—

Prepaid freight
809

 
1,050

Prepaid taxes
12,711

 
8,398

Deposits and other prepaid expenses
2,340

 
2,020

Total prepaid expenses and other current assets
$
25,116

 
$
17,499

(9) Property, Plant and Equipment, Net
Property, plant and equipment, net consisted of the following:
 
December 31,
2017
 
December 31,
 2016
Plant and mining equipment
$
156,151

 
$
124,266

Owned and leased mineral rights (1)
20,774

 
43,342

Land
17,553

 
17,453

Office equipment, software and other
601

 
626

Construction in progress
22,477

 
1,912

Total property, plant and equipment
$
217,556

 
$
187,599

Less accumulated depreciation, depletion, and amortization
73,249

 
54,440

Total property, plant and equipment
$
144,307

 
$
133,159

______________
(1)
Owned and leased mineral rights of $20,774 and $43,342, as of December 31, 2017 and 2016, respectively, relates to capitalized asset retirement obligation costs associated with active mining operations.

Depreciation and amortization expense, including discontinued operations, associated with property, plant, and equipment was $21,829 for the year ended December 31, 2017 and $4,257 for the period ended December 31, 2016, which includes a credit of ($32,732) and ($56,136), respectively, related to cash flow revisions to asset retirement obligations on closed sites. See Note 14 for further disclosures related to asset retirement obligations.

F-150
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

(10) Other Non-Current Assets
Other non-current assets consisted of the following:
 
December 31,
2017
 
December 31,
 2016
Advanced royalties
$
330

 
$
290

VA CEE tax credit
8,219

 
8,189

Notes receivable
1,699

 
296

Workers compensation receivable
16,796

 
17,843

Prepaid workers’ compensation and state black lung
28,336

 
—

Alternative minimum tax credit refund receivable
23,338

 
—

Other
5,803

 
7,425

   Total
$
84,521

 
$
34,043

(11) Accrued Expenses and Other Current Liabilities
Accrued expenses and other current liabilities consisted of the following:
 
December 31,
2017
 
December 31,
 2016
Wages and employee benefits
$
47,334

 
$
32,049

Current portion of asset retirement obligations
10,996

 
8,028

Taxes other than income taxes
52,581

 
60,314

Interest payable
68

 
2,519

Current portion of workers compensation and black lung
20,518

 
17,515

Fines and penalties
1,127

 
2,513

Bankruptcy liabilities
37,097

 
44,458

Other
16,819

 
19,995

Total accrued expenses and other current liabilities
$
186,540

 
$
187,391


F-151
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

(12) Long-Term Debt
Long-term debt consisted of the following:
 
December 31,
2017
 
December 31, 2016
$125,000 Term Loan
$
—

 
$
124,889

$150,000 Term Loan
146,250

 
—

LCC Note Payable
80,000

 
—

LCC Water Treatment Stipulation
14,000

 
—

Other
447

 
4,227

Total before debt issuance costs and debt discounts
240,697

 
129,116

Unamortized debt issuance costs and debt discount related to Term Loans
(8,269
)
 
(18,729
)
Unamortized discount on LCC Note Payable based on an imputed interest rate of 21.1%
(28,360
)
 
—

Unamortized discount on LCC Water Treatment Stipulation based on an imputed interest rate of 21.1%
(5,808
)
 
—

Total long-term debt
$
198,260

 
$
110,387

Less current portion
18,655

 
110,192

Long-term debt, net of current portion
$
179,605

 
$
195

$125,000 Term Loan
On July 26, 2016, the Company entered into a credit facility with Citicorp, N.A. (“Citi”) as administrative agent, which included a $125,000 term loan (the “Credit Facility”). The term loan bore interest at a rate of LIBOR plus 10.00% per annum and was scheduled to mature on July 26, 2019. The facility required certain collateral and achievement of certain financial covenants. Upon the closing of the facility, debt issuance costs of $21,750 were incurred.
On April 28, 2017, the Company paid off its Credit Facility at a redemption price of $124,889. The Company used $68,511 of restricted cash and $56,378 of operating cash to repay the remaining principal. On the date of payoff, $16,348 of unamortized debt fees were written off and recorded as a loss on early extinguishment of debt in the Consolidated Statements of Operations. The Company also entered into a new $200,000 Letter of Credit Facility with Citibank, N.A ("Citi") on April 28, 2017, with $193,637 outstanding at December 31, 2017. A new $60,000 Receivables Purchase Agreement with Hitachi Capital America Corp. ("HCA") was entered into on May 1, 2017. As of December 31, 2017, the Company had availability of approximately $35,000 under the Receivables Purchase Agreement with HCA.
$150,000 Term Loan
On October 18, 2017, the Company entered into a credit facility (the “New Credit Facility”) with Cantor Fitzgerald Securities as administrative agent, which included a $150,000 term loan that bears interest at a rate of LIBOR plus 700 basis points. The interest rate at December 31, 2017 was 8.37%. Interest is paid on a monthly basis at the end of each month. In connection with the New Credit Facility, $9,251 of debt issuance costs and fees were incurred, including $4,500 in the form of an original issue discount. Unamortized fees and debt discount of $8,269 remain on the Consolidated Balance Sheet at December 31, 2017.
Mandatory principal payments of $3,750 are required quarterly. The Company paid $3,750 in December of 2017 with annual scheduled payments remaining of $15,000 due in 2018, 2019 and 2020 and $101,250 due in 2021. In addition, ANR must make a prepayment of principal in an amount equal to the excess (if any) of 65% of excess cash flow for each physical quarter end through the maturity date. Therefore, depending on future cash flow, the principal may be paid off earlier than scheduled.
A financial covenant was put into place along with the New Credit Facility that requires the Company to maintain at least $35,000 of liquidity at all times. The Company was in compliance with its covenants as of December 31, 2017.

F-152
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

LCC Obligations - Imputed Principal and Interest
Both the LCC Note Payable and the LCC Water Treatment Stipulation debt instruments described further below have no stated interest. However, in accordance with GAAP, the Company discounted expected cash flows using an interest rate that equates to a risk-free interest rate adjusted for the effect of the Company’s credit standing (a credit-adjusted unsecured risk-free borrowing rate) to determine imputed interest. In determining the adjustment for the effect of its credit standing, the Company considered the effects of all terms, collateral, and existing guarantees on the fair value of the liability.
LCC Note Payable
As a result of the LCC transaction, ANR executed an $80,000 note payable to LCC over a 5-year period, with payments of $17,500 beginning October 23, 2018 and for three additional years on the anniversary date of the closing, plus a final payment of $10,000 on October 23, 2022. The $80,000 note payable has no stated interest rate but for accounting purposes, $30,063 is considered the original discount associated with the note payable. Interest expense will be recorded over the term of the note with $1,703 of expense for the year ended December 31, 2017, leaving $28,360 unamortized on the Consolidated Balance Sheet at December 31, 2017.
LCC Water Treatment Stipulation
As a result of the LCC transaction, ANR executed an agreement to contribute $14,000 into LCC’s water treatment restricted cash accounts from 2018 through 2023. Contributions of $1,500 are due during 2018 and increase to $2,500 each of the years 2019 through 2023. For accounting purposes, $6,104 is considered the original discount associated with the obligation. Interest expense will be recorded over the term of the note with $296 of expense for the year ended December 31, 2017, leaving $5,808 unamortized on the Consolidated Balance Sheet at December 31, 2017.
Capital Leases
The Company’s liability for capital leases as of December 31, 2017 and 2016 totaled $0 and $3,658, respectively.
Notes Payable
The Company’s liability for notes payable as of December 31, 2017 and 2016 totaled $447 and $569, respectively.
Future Maturities
Future maturities of long-term debt as of December 31, 2017 are as follows (1) : 
2018
$
34,144

2019
35,144

2020
35,144

2021
121,265

2022
12,500

Thereafter
2,500

Total long-term debt
$
240,697

______________
(1)
Future maturities include the total scheduled payments related to the LCC Note Payable and LCC Water Treatment Stipulation that includes a principal and interest component from an accounting perspective.

Contingent Credit Support Commitment
The Contingent Credit Support Commitment (“Contingent Commitment”) was an unsecured obligation with Contura that required Contura to provide ANR with revolving credit support in an aggregate total amount of $35,000 from the Effective Date through September 30, 2018 if certain conditions were met.

F-153
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

As of December 31, 2016, the Company had not drawn against the Contingent Commitment. As of emergence, the carrying value of the Contingent Commitment determined at fair value was $21,954, all of which was classified within other non-current assets in the Consolidated Balance Sheet as a non-recurring fair value measurement. The Company reviewed the carrying amount of this asset at December 31, 2016 for impairment and determined it to be fully impaired. The impairment was recorded as asset Impairment-contingent credit support expense on the Consolidated Statement of Operations.
A termination agreement was entered into between ANR and Contura on October 23, 2017 that terminated the commitment.
(13) 2016 Global Reclamation Agreement & 2017 Amended Reclamation Funding Agreement
2016 Global Reclamation Agreement
The Company entered into eight separate agreements that were collectively known as the Global Reclamation Agreements or GRA. The GRA consists of (1) an agreement (the “Reclamation Funding Agreement”) among the Company, Contura, and the applicable regulatory authorities for each of the states where the Company holds mining assets (collectively, the “Regulatory Authorities”) providing for the provision and allocation among the Regulatory Authorities of certain funds by the Company and Contura to support the Company's performance of its reclamation obligations; (2) five separate agreements (collectively, the “Reclamation Settlement Agreements”) among the Company, Contura and each of the Regulatory Authorities providing for the use of the funds allocated to the applicable Regulatory Authority, pursuant to the Reclamation Funding Agreement, and other matters relating to environmental reclamation in the applicable state; (3) a stipulation with the United States Environmental Protection Agency (the “Water Treatment Settlement Agreement”) regarding the Company’s water treatment obligations; and (4) a settlement agreement with the United States Army Corps of Engineers regarding the Company’s mitigation requirements.
The Reclamation Funding Agreement provided for the establishment of interest bearing segregated deposit accounts for each Regulatory Authority in which the Company operated. The applicable Regulatory Authority held a first priority security interest, perfected by “control” under the UCC in these accounts that were funded by the Company and Contura pursuant to the Reclamation Funding Agreement.
Company Contributions:
The Company was scheduled to pay $109,000 into the various Restricted Cash Reclamation Accounts.
In addition to the periodic contributions, the Company was obligated to pay 50% of positive Free Cash Flow (as defined in the GRA) post-emergence into the Restricted Cash Reclamation Accounts until reclamation is completed or the balances in the Restricted Cash Reclamation Accounts equals or exceeds 125% of the estimated total remaining cost of reclamation, mitigation and water treatment. On April 28, 2017, the Company deposited $14,501 into the Restricted Cash Accounts for reclamation pursuant to the requirements of the GRA relating to its obligation to pay 50% of positive Free Cash Flow for the first quarter of 2017. The Free Cash Flow contributions were subject to reconciliation on an annual basis.
In addition to the foregoing allocated contributions to the Restricted Cash Reclamation Accounts, any collateral returned to the Company from any surety bond issuer was to be paid into the Restricted Cash Reclamation Account of the applicable Regulatory Authority. Similarly, if the Company sold a mining asset in a state for at least $100, it was required to deposit a percentage of the proceeds into the Restricted Cash Reclamation Account of the applicable Regulatory Authority.
The amended reclamation agreement executed in 2017 terminated the free cash flow and collateral return obligations and modified the periodic contributions such that the Company is only required to make payments into LCC’s restricted cash accounts of $17,500 in 2018, 2019, 2020, and 2021 with a final payment of $10,000 in 2022.
Contura Contributions:
Contura was scheduled to pay $50,000 into the various Restricted Cash Reclamation Accounts. $8,000 was paid at emergence and another $10,000 was paid in July of 2017.

F-154
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

In addition to the mandatory contributions through 2020, Contura had a contingent obligation to pay up to an aggregate amount of $50,000 in annual installments into the various Restricted Cash Reclamation Accounts from 2021 through 2025.
The amended reclamation agreement executed in 2017 terminated this contingent obligation.
The Reclamation Settlement Agreements Prior to the 2017 Amendment
Upon emerging from bankruptcy, the Company entered into Reclamation Settlement Agreements that established how the Company will utilize the funds in the Restricted Cash Reclamation Accounts to complete reclamation at its properties, in particular those with only reclamation activities to be completed (the “Reclaim-Only Sites”) and replace its remaining self-bonds on those Reclaim-Only Sites by July 2026. All funds deposited into the Restricted Cash Reclamation Accounts were to be used solely to fund reclamation, mitigation and water treatment and management obligations in the applicable state. Each Regulatory Authority had the right to audit the usage of its applicable Restricted Cash Reclamation Account at any time and from time to time upon reasonable notice.
The Company and the applicable Regulatory Authority also entered into general and, in appropriate circumstances, site specific agreements providing a schedule of priority for reclamation, mitigation and water treatment and management. The Company could use funds contributed to the Restricted Cash Reclamation Account in the performance of its obligations to complete reclamation, mitigation and water treatment and management only within the applicable state and only in accordance with the applicable permits and any applicable initial, long term and semi-annual budgets approved by the applicable Regulatory Authority.
Upon written confirmation from any Regulatory Authority confirming the full reclamation of all permits in the state and the release of the associated bonds, any remaining funds in the Restricted Cash Reclamation Account were to be delivered to the Company.
Until the Company had fulfilled its obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with the Reclamation Settlement Agreements, it was prohibited from making any dividends or other distributions on account of any equity interests in the Company.
In addition, the sale of assets to Contura pursuant to the POR and Contura's partial funding of the Company's reclamation obligations pursuant to the Reclamation Funding Agreement shall not cause Contura or the Company to be deemed to be owners or controllers of each other or of each other's businesses.
Pursuant to the Reclamation Settlement Agreement with West Virginia, the Company posted approximately $100,000 of new surety bonds to reduce its self-bonded liability. In addition, the Company posted $39,000 of collateral to secure its obligations on the Reclaim-Only Sites pending (a) its replacement of all self-bonds with commercial surety bonds or (b) completion of reclamation at all self-bonded sites. The Reclamation Settlement Agreement with West Virginia specified that the Company will reduce its self-bonded obligations with respect to its Reclaim-Only Sites according to the following schedule:
•
25% by December 31, 2020;
•
50% by December 31, 2023; and
•
100% by the tenth anniversary of the Effective Date.
2017 Reclamation Funding Agreement Amendment
The amended reclamation agreement was entered into by and among ANR, Inc., LCC, Contura Energy, Inc. and various federal and state agencies. The agreement documents the specific permits being transferred to LCC from ANR and acknowledges consent of the regulatory authorities to the LCC sales transaction. ANR’s periodic payments were amended and superseded to provide that no additional funding is required into the GRA accounts.

F-155
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The following table highlights the original funding requirements, the funding that has occurred post-emergence through December 31, 2017, the amount no longer required to be funded into the GRA accounts, and the future funding into LCC’s restricted cash accounts required:
 
Mandatory Funding Required Under the 2016 POR
 
Mandatory Amounts Funded  (1)
 
Funding No Longer Required by ANR based upon Amendment
 
Future Funding into LCC's Restricted Cash Accounts  (2)
2016
$
5,000

 
$
5,000

 
$
—

 
$
—

2017
10,000

 
7,627

 
2,373

 
—

2018
10,000

 
—

 
10,000

 
17,500

2019
12,000

 
—

 
12,000

 
17,500

2020
12,000

 
—

 
12,000

 
17,500

2021
12,000

 
—

 
12,000

 
17,500

2022
12,000

 
—

 
12,000

 
10,000

2023
12,000

 
—

 
12,000

 
—

2024
12,000

 
—

 
12,000

 
—

2025
12,000

 
—

 
12,000

 
—

Total
$
109,000

 
$
12,627

 
$
96,373

 
$
80,000

______________
(1)
September 2017 was the last month that contributions were made into the GRA accounts associated with Kentucky, Tennessee, and West Virginia. Contributions into the GRA accounts of Virginia and Illinois continued for the remainder of the year (monthly contributions totaling $42). The contributions will cease when the permits are officially transferred to the respective buyers of the properties. Some contributions are expected to be made in early 2018 for these two states but are not material, and not reflected in the schedule above.
(2)
The principal portion of the $80,000 is reflected in long term debt on the Consolidated Balance Sheet at December 31, 2017 (see Note 12).

The Water Treatment Settlement Agreement per the 2016 POR and the Amended Stipulation Regarding Water Treatment Obligations
2016 Water Treatment Settlement Agreement
The Water Treatment Settlement Agreement specified that the Company will establish and fund restricted cash accounts (“Restricted Cash Water Treatment Accounts”) for each state in which it operates. The Company was required to make contributions totaling $15,000 between 2017 and 2023.
The Company contributed $1,000 to each of the Restricted Cash Water Treatment Accounts on the Effective Date. The contributions in 2017 were divided evenly among the states. Beginning in 2018, the contributions were to be allocated based upon the percentage of water treatment costs associated with each state.
The funds in the Restricted Cash Water Treatment Accounts could be used to pay for costs associated with treating water, constructing water treatment systems, or undertaking other projects that will improve water quality discharging from the Company’s property. The Company and the applicable state agencies were also required to set a minimum balance that must be maintained in the Water Treatment Restricted Cash Account for each applicable state.
2017 Amended Water Treatment Stipulation
The amended water treatment stipulation was entered into by and among ANR, Inc., LCC, and the Environmental Protection Agency. The agreement was entered into to amend the framework and funding for the fulfillment of water treatment obligations in light of the LCC sales transaction. The amount of restricted cash that ANR had set aside in the water treatment accounts was conveyed to LCC in the sales transaction.

F-156
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The following table highlights the original funding requirements, the funding that has occurred post-emergence through December 31, 2017, and the future funding requirements:
 
Mandatory Funding Required Under the 2016 POR
 
Mandatory Amounts Funded
 
Future Funding into Accounts of LCC (1)
2017
$
1,000

 
$1,000
 
$
—

2018
1,500

 
—

 
1,500

2019
2,500

 
—

 
2,500

2020
2,500

 
—

 
2,500

2021
2,500

 
—

 
2,500

2022
2,500

 
—

 
2,500

2023
2,500

 
—

 
2,500

Total
$
15,000

 
$
1,000

 
$
14,000

______________
(1)
The principal portion of the $14,000 is reflected in long term debt on the Consolidated Balance Sheet at December 31, 2017 (see Note 12).

The Mitigation Settlement per the 2016 POR and the Amended Permitting and Mitigation Plan Funding and Settlement Agreement
2016 Mitigation Settlement
The Mitigation Settlement Agreement required the Company to establish a restricted cash account (“Restricted Cash Mitigation Account”) which will be used to fund mitigation required by the Company’s Section 404 permits. The Company contributed $4,500 to the Restricted Cash Mitigation Account on the Effective Date and made an additional contribution of $1,500 in 2017. $5,500 of restricted cash was transferred to LCC in October of 2017 based on the amended agreement. The amended agreement requires ANR to continue to make contributions into the Restricted Cash Mitigation Account to cover obligations of the Company’s remaining Section 404 permits.
2017 Amended Permitting and Mitigation Plan Funding and Settlement Agreement
The amended Permitting and Mitigation Plan Funding and Settlement Agreement water treatment stipulation was entered into by and among ANR, Inc., LCC, Contura Energy, Inc. and the U.S. Army Corps of Engineers.
The following table highlights the original funding requirements, the funding that occurred post-emergence, and the amended future funding requirements.
 
Funding Required Under the 2016 POR
 
Amended Agreement Adjustment
 
Funding Required per the Amendment
 
Amounts Funded Through December 2017
 
Future Funding Required
2016
$
4,500

 
$
—

 
$
4,500

 
$
4,500

 
$
—

2017 - Pre Amendment
1,000

 
—

 
1,000

 
1,000

 
—

Subtotal
5,500

 
—

 
5,500

 
5,500

 
—

2017 - Post Amendment
—

 
500

 
500

 
500

 
—

2018
1,500

 
(500
)
 
1,000

 
—

 
1,000

2019
2,500

 
—

 
2,500

 
—

 
2,500

2020
3,000

 
—

 
3,000

 
—

 
3,000

2021
3,000

 
—

 
3,000

 
—

 
3,000

2022
2,500

 
—

 
2,500

 
—

 
2,500

Total
$
18,000

 
$
—

 
$
18,000

 
$
6,000

 
$
12,000


F-157
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The Company is required to keep a minimum balance in the Restricted Cash Mitigation Account at all times and must receive approval of its budgets from the U.S. Army Corps of Engineers to spend funds from this account.
(14) Asset Retirement Obligations
As of December 31, 2017, and 2016, the Company had recorded asset retirement obligation accruals for mine reclamation and closure costs totaling $68,302 and $266,188, respectively. The portion of the costs expected to be paid within a year of $10,996 as of December 31, 2017 is included in accrued expenses and other current liabilities.
Changes in the asset retirement obligations were as follows:
 
Total
 
Continuing Operations
 
Discontinued Operations
Total asset retirement obligations at July 26, 2016
$
278,530

 
$
86,886

 
$
191,644

Accretion for the period (1)
31,401

 
9,763

 
21,638

Revisions in estimated cash flows (2)
(27,405
)
 
(5,808
)
 
(21,597
)
Asset sales (3)
(2,897
)
 
(2,897
)
 
—

Expenditures for the period
(13,441
)
 
(3,345
)
 
(10,096
)
Total asset retirement obligations at December 31, 2016
266,188

 
84,599

 
181,589

Accretion for the period (1)
62,221

 
22,733

 
39,488

Sites added during the period
171

 
171

 
—

Revision in estimated cash flows (2)
(31,173
)
 
(31,173
)
 
—

Asset sales (3)
(192,921
)
 
—

 
(192,921
)
Expenditures for the period
(36,184
)
 
(8,028
)
 
(28,156
)
Total asset retirement obligations at December 31, 2017
68,302

 
68,302

 
—

Less current portion
10,996

 
10,996

 
—

Long-term portion
$
57,306

 
$
57,306

 
$
—

______________
(1)
Offsetting accretion expense in the activities of discontinued operations for 2017 and 2016 is $4,216 and $2,253 of interest income, respectively, associated with the reclamation funding receivable from Contura.
(2)
Represents a reduction in estimated costs which was recorded as a reduction to depreciation, depletion, and amortization in the Consolidated Statements of Operations/activities of discontinued operations for the year ended December 31, 2017 and the period ended December 31, 2016.
(3)
Assumption of asset retirement obligation by buyers is included in Gain (Loss) on disposition of property, plant, and equipment in the Consolidated Statements of Operations/activities of discontinued operations and the Consolidated Statements of Cash Flows.
(15) Other Non-Current Liabilities
Other non-current liabilities consisted of the following:
 
December 31,
2017
 
December 31,
 2016
Contingent revenue obligation
$
42,860

 
$
27,748

Deferred WY production taxes
4,547

 
11,159

Property taxes
—

 
26,531

Other
3,258

 
4,257

Total other non-current liabilities
$
50,665

 
$
69,695


F-158
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

(16) Fair Value of Financial Instruments and Fair Value Measurements
The estimated fair values of financial instruments are determined based on relevant market information. These estimates involve uncertainty and cannot be determined with precision.
The carrying amounts for cash and cash equivalents, trade accounts receivable, net, notes and other receivables, restricted cash, long-term restricted cash, prepaid expenses and other current assets, trade accounts payable, and accrued expenses and other current liabilities approximate fair value due to the short maturity of these instruments.
The following tables set forth by level, within the fair value hierarchy, the Company’s long-term debt at fair value as of December 31, 2017 and 2016, respectively:
 
December 31, 2017
 
Carrying Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
$150,000 term loan
$
137,981

 
$
142,825

 
$
—

 
$
—

 
$
142,825

LCC note payable
51,640

 
49,937

 
—

 
—

 
49,937

LCC water stipulation
8,189

 
7,893

 
—

 
—

 
7,893

______________
(1)
Net of unamortized debt issuance costs and debt discount

 
December 31, 2016
 
Carrying Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
Credit Facility loan
$
106,160

 
$
122,933

 
$
—

 
$
—

 
$
122,933

______________
(1)
Net of debt issuance costs

The following tables set forth by level, within the fair value hierarchy, the Company’s financial and non-financial assets and liabilities that were accounted for at fair value on a recurring basis as of December 31, 2017 and 2016. Financial and non-financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The Company’s assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the determination of fair value for assets and liabilities and their placement within the fair value hierarchy levels. 
 
Carrying Amount
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
December 31, 2017
 
 
 
 
 
 
 
 
 
Financial liabilities:
 
 
 
 
 
 
 
 
 
Contingent Revenue Obligation
$
(42,860
)
 
$
(42,860
)
 
$
—

 
$

 
$
(42,860
)
December 31, 2016
 
 
 
 
 
 
 
 
 
Financial liabilities:
 
 
 
 
 
 
 
 
 
Contingent Revenue Obligation
$
(27,748
)
 
$
(27,748
)
 
$
—

 
$
—

 
$
(27,748
)

F-159
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The Company assigned a fair value of ($13,101) to the contingent revenue obligation in fresh start accounting. Improved future revenue expectations compared to the expectations at the emergence date resulted in a ($14,647) increase in the obligation as of December 31, 2016 to a balance of ($27,748). The balance was further increased as of December 31, 2017 by ($15,112). The change in estimated liability is recorded on the Consolidated Statements of Operations as mark-to-market adjustment - acquisition-related obligations and the liability is shown in other non-current liabilities in the Company’s Consolidated Balance Sheets.
The following methods and assumptions were used to estimate the fair values of the assets and liabilities in the tables above.
Level 3 Fair Value Measurements
Corporate Debt Securities - The fair values of the Company’s corporate debt securities are obtained from a third-party pricing service provider. The fair values provided by the pricing service provider are estimated using pricing models, where the inputs to those models are based on observable market inputs including credit spreads and broker-dealer quotes, among other inputs. The Company classifies the prices obtained from the pricing services within Level 3 of the fair value hierarchy because the underlying inputs are directly observable from active markets; however, the pricing models used entail a certain amount of subjectivity and therefore differing judgments in how the underlying inputs are modeled which could result in different estimates of fair value.
Fresh Start Reporting - The Company recorded its assets and liabilities upon emergence from bankruptcy under the fresh start method of accounting. Determining the fair value of assets and liabilities requires management’s judgment, the utilization of independent valuation experts and often involves the use of significant estimates and assumptions with respect to the timing and amounts of future cash inflows and outflows, discount rates, market prices and asset lives, among other items.
Contingent Revenue Obligation - The fair value of the contingent revenue obligation was estimated using a Black-Scholes pricing model and is marked to market at each reporting period with changes in value reflected in earnings. The inputs included in the Black-Scholes pricing model are the Company's forecasted future revenue, the stated royalty rate, the remaining periods in the obligation, and the annual risk-free interest rate based on the US Constant Maturity Treasury Curve and annualized volatility. The annualized volatility was calculated by observing volatilities for comparable companies with adjustments for the Company's size and leverage.
(17) Income Taxes
Impacts of the Tax Cuts and Jobs Act
On December 22, 2017, the Tax Act was signed into law. The Tax Act contains significant changes to corporate taxation, including (i) the reduction of the corporate tax rate from 35% to 21%, (ii) the acceleration of tax depreciation for certain business assets, (iii) the repeal of the domestic production deduction, (iv) additional limitations on the deductibility of interest expense, and (v) expanded limitations on executive compensation. Tax reform eliminated the alternative minimum tax (“AMT”) for corporations while allowing the continued use of AMT credit carryforwards and allowing future refunds of these credits. Except for the acceleration of tax depreciation for certain business assets effective in September of 2017, the changes are effective as of January 1, 2018.
The key impact of the Tax Act on the Company’s financial statements for the year ended December 31, 2017 relates to the expected future refundable AMT credits that existed at emergence of $23,027 ($30,702 less valuation allowance of $7,675). The expected future refunds are recorded as a receivable in other non-current assets on the Company’s Consolidated Balance Sheet as of December 31, 2017. As of December 31, 2016, prior to the Tax Act, the AMT credits were not considered deferred tax assets since significant limitations existed on utilization of the credits. As of December 31, 2017, the Company has recorded its best estimate based on the information and guidance available at this time and has not completed its analysis of the impact of the Tax Act on the monetization of the AMT credit carryforwards. Under the Securities and Exchange Commission Staff Accounting Bulletin (“SAB”) 118, the Company will finalize the analysis within the one-year measurement period on December 22, 2018. Until additional guidance is provided by the Internal Revenue Service on the minimum tax credit refund, uncertainty exists around the ultimate realization of 100% of available credits.

F-160
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The key impact of the Tax Act on the Company’s financial statement income tax disclosures for the year ended December 31, 2017 was the re-measurement of deferred tax assets to the new corporate tax rate. In order to calculate the effects of the new corporate tax rate on the Company’s deferred tax balances, ASC 740 “Income Taxes” (“ASC 740”) required the re-measurement of the Company’s deferred tax balances as of the enactment date of the Tax Act, based on the rates at which the balances are expected to reverse in the future. The re-measurement was completely offset by a change in valuation allowance.
Significant components of income tax (expense) benefit from continuing operations were as follows:
 
December 31,
 2017
 
July 26 through
 December 31, 2016
Current tax expense:
 
 
 
Federal
$
(11,680
)
 
$
—

State
(5,904
)
 
—

 
(17,584
)
 
—

Deferred tax benefit:
 
 
 
Federal
—

 
15,196

State
—

 
3,018

 
—

 
18,214

Total income tax (expense) benefit:
 
 
 
Federal
(11,680
)
 
15,196

State
(5,904
)
 
3,018

 
$
(17,584
)
 
$
18,214

A reconciliation of the statutory federal income tax expense (benefit) at 35% on income (loss) from continuing operations to the actual income tax expense (benefit) is as follows:
 
Year Ended
 December 31, 2017
 
Period from July 26 through
 December 31, 2016
Pre-tax income (loss)
$
134,773

 
$
(51,859
)
 
 
 
 
Federal statutory income tax expense (benefit)
47,171

 
(18,151
)
Increase (reductions) in taxes due to:
 
 
 
 Percentage depletion allowance
(22,512
)
 
(4,830
)
 Federal tax rate change
27,619

 
—

 Minimum tax credit asset recognition due to Tax Act
(30,702
)
 
—

 State taxes, net of federal tax impact
2,442

 
(3,623
)
Tax provision to tax return impact
10,071

 
—

 Change in valuation allowances
(17,265
)
 
8,242

 Other
760

 
148

Income tax expense (benefit)
$
17,584

 
$
(18,214
)

F-161
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Deferred income taxes result from temporary differences between the reported amounts for financial statement purposes and income tax purposes. The net deferred tax assets and liabilities included in the Consolidated Balance Sheets include the following amounts:
 
December 31, 2017
 
December 31, 2016
Deferred tax assets:
 
 
 
Asset retirement obligations
$
17,851

 
$
104,414

Reserves and accruals not currently deductible
15,251

 
12,549

Workers' compensation and black lung
60,462

 
83,490

Pension and postretirement medical benefit obligations
54,090

 
83,772

LCC Note Payable and Water Treatment Stipulation
15,655

 
—

Alternative minimum tax credit carryforwards
7,675

 
—

Net operating loss carryforwards, net of Section 382 limitation
26,236

 
13,798

Gross deferred tax assets
197,220

 
298,023

Less valuation allowance
(77,746
)
 
(43,534
)
Deferred tax assets
119,474

 
254,489

 
 
 
 
Deferred tax liabilities:
 
 
 
Property, plant and equipment
(22,040
)
 
(28,018
)
Restricted cash
(90,756
)
 
(198,094
)
Acquired intangibles, net
(90
)
 
(3,149
)
Prepaid expenses
(2,359
)
 
(2,855
)
Other Assets
(4,229
)
 
(22,373
)
Total deferred tax liabilities
(119,474
)
 
(254,489
)
Net deferred tax assets
$
—

 
$
—

Changes in the valuation allowance during the year ended December 31, 2017 and for the period July 26 through December 31, 2016, including discontinued operations, were as follows: 
 
December 31,
 2017
 
July 26 through
 December 31, 2016
Valuation allowance beginning of period
$
43,534

 
$
—

Valuation allowance established in fresh start accounting to account for book and tax basis differences
—

 
26,898

Valuation allowance not effecting income tax expense
14,737

 
—

Increase in valuation allowance recorded as an increase to income tax expense
19,475

 
16,636

Valuation allowance end of period
$
77,746

 
$
43,534

Although the Company is the successor from an accounting perspective, Contura is the successor for federal income tax purposes as a result of a tax-free reorganization that occurred as part of the bankruptcy restructuring. As a result of the reorganization, Contura inherited substantially all of the federal and state net operating loss carry forwards of Alpha as well as the historical tax basis of assets acquired, and liabilities assumed from Alpha. Any NOL carryforwards that ANR retained are subject to Code Section 382 limitations and are not recognized as a deferred tax asset as of December 31, 2017 and 2016.
Although Contura is the income tax successor, ANR is entitled to the cash benefit of any income tax refunds for pre-emergence periods as stated in the Asset Purchase Agreement with Contura. At December 31, 2017 and 2016, $12,711

F-162
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

($11,189 relates to post-petition periods) and $8,398, respectively, of refundable income taxes are included in Prepaid Expenses and Other Current Assets. ANR is also obligated for any additional income taxes that may arise for pre-emergence periods. ANR is not aware of any potential taxes due for pre-emergence periods and no liability is recorded. As of December 31, 2017, tax years 2016-2017 remain open to federal and state examination.
At December 31, 2017 and 2016 the Company’s tax effected temporary differences and NOL’s amounted to $77,746 and $43,534, respectively, and were completely offset by valuation allowances. At December 31, 2017, the Company has regular tax net operating loss carryforwards for federal income tax purposes of approximately $102,000. The federal net operating loss carryforwards will expire between years 2036 and 2037.
The change in valuation allowance resulted from an increase in net operating losses for the periods reported and other deferred tax assets for which the Company is unable to support realization.
The total amount of unrecognized tax benefits at December 31, 2017 and 2016 was $0.
The Company’s policy is to classify interest and penalties related to uncertain tax positions as part of income tax expense. As of December 31, 2017, and 2016, the Company has recorded accrued interest and penalties of $0 and $0, respectively.
(18) Employee Benefit Plans
The Company provides several types of benefits for its employees, including defined benefit pension plans, workers’ compensation and black lung benefits, defined contribution retirement savings plans, and health insurance coverage.
(a)
Company Administered Defined Benefit Pension Plans
The Company has three qualified non-contributory defined benefit pension plans, which cover certain salaried and non-union hourly employees. Participants accrued benefits either based on certain formulas, the participant’s compensation prior to retirement, or plan specified amounts for each year of service with the Company. Benefits are frozen under these plans.
The qualified non-contributory defined benefit pension plans are collectively referred to as the “Pension Plans”.
Annual funding contributions to the Pension Plans are made as recommended by consulting actuaries based upon the ERISA funding standards. Plan assets consist of equity and fixed income funds, private equity funds and a guaranteed insurance contract.

F-163
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The following tables set forth the plans’ accumulated benefit obligations, fair value of plan assets and funded status:
 
Year Ended
December 31, 2017
 
July 26 through
 December 31, 2016
Change in benefit obligations:
 
 
 
Accumulated benefit obligation at beginning of period:
$
716,312

 
$
805,867

Interest cost
25,143

 
9,693

Actuarial (gain) loss
58,593

 
(84,691
)
Benefits paid
(32,629
)
 
(11,762
)
Plan amendments
(3,889
)
 
—

Settlements
(4,205
)
 
(2,795
)
Accumulated benefit obligation at end of period
$
759,325

 
$
716,312

 
 
 
 
Change in fair value of plan assets:
 
 
 
Fair value of plan assets at beginning of period
$
507,011

 
$
544,113

Actual return on plan assets
62,939

 
(24,958
)
Employer contributions
14,322

 
2,413

Benefits paid
(32,629
)
 
(11,762
)
Settlements
(4,205
)
 
(2,795
)
Fair value of plan assets at end of period
$
547,438

 
$
507,011

Funded status
$
(211,887
)
 
$
(209,301
)
Accrued benefit cost at end of year
$
(211,887
)
 
$
(209,301
)
Gross amounts related to pension obligations recognized in accumulated other comprehensive (income) loss consisted of the following as of December 31, 2017 and 2016:
 
December 31,
 2017
 
December 31,
 2016
Net actuarial gain
$
(22,709
)
 
$
(45,867
)
The following table details the components of net periodic benefit credit:
 
Year Ended
December 31, 2017
 
July 26 through
December 31, 2016
Interest cost
$
25,143

 
$
9,693

Expected return on plan assets
(31,240
)
 
(13,826
)
Prior service credit
(114
)
 
—

Settlement gain
(39
)
 
(40
)
Net periodic benefit credit
$
(6,250
)
 
$
(4,173
)

F-164
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Other changes in plan assets and benefit obligations recognized in other comprehensive (income) loss are as follows:
 
Year Ended
December 31, 2017
 
July 26 through
December 31, 2016
Current year actuarial (gain) loss
$
26,894

 
$
(45,907
)
Net prior service credit
(3,775
)
 
—

Settlement gain
39

 
40

Total recognized in other comprehensive (income) loss
$
23,158

 
$
(45,867
)
Total recognized in net periodic benefit cost and other comprehensive loss (income)
$
16,908

 
$
(50,040
)
The following table presents information applicable to plans with accumulated benefit obligations in excess of plan assets:
 
December 31, 2017
 
July 26 through
December 31, 2016
Projected benefit obligation
759,325
 
716,312
Accumulated benefit obligation
759,325
 
716,312
Fair value of plan assets
547,438
 
507,011
The current portion of the Company’s Pension Plans liability is the amount by which the actuarial present value of benefits included in the benefit obligation payable in the next twelve months exceeds the fair value of plan assets. However, even though the plan may be underfunded, if there are sufficient plan assets to make expected benefit payments to plan participants in the succeeding twelve months, no current liability is recognized. Under this standard no current pension liability would be presented. However, the POR established a $9,000 contractual obligation paid in June of 2017 and to be paid in June of 2018 and the company has shown $9,000 as a current liability in the Consolidated Balance Sheets as of December 31, 2017 and 2016.
The weighted-average actuarial assumption used in determining the benefit obligations as of December 31, 2017 and 2016 was as follows: 
 
December 31,
 2017
 
December 31,
 2016
Discount rate
3.63
%
 
4.12
%
The weighted-average actuarial assumptions used to determine net periodic benefit cost for the year ended December 31, 2017 and for the period July 26 through December 31, 2016 were as follows: 
 
Year Ended
December 31, 2017
 
July 26 through
December 31, 2016
Discount rate
4.12
%
 
3.44
%
Expected long-term return on plan assets
6.25
%
 
6.25
%
Measurement date
December 31, 2017

 
December 31, 2016

The discount rate assumptions were determined from a high quality corporate bond yield-curve timing of the Company’s projected cash out flows.
The expected long-term return on assets of the Pension Plans is established at the beginning of each year by the Company’s Benefits Committee in consultation with the plans’ actuaries and outside investment advisors. This rate is

F-165
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

determined by taking into consideration the Pension Plans’ target asset allocation, expected long-term rates of return on each major asset class by reference to long-term historic ranges, inflation assumptions and the expected additional value from active management of the Pension Plans’ assets. For the determination of net periodic benefit cost in 2018, the Company will utilize an expected long-term return on plan assets of 6.25%.
Assets of the Pension Plans are held in trusts and are invested in accordance with investment guidelines that have been established by the Company’s Benefits Committee in consultation with outside investment advisors. The target allocation for 2018 and the actual asset allocation as reported at December 31, 2017 is as follows:
 
Target
Allocation
Percentages
2018
 
Percentage of
Plan Assets
2017
Equity funds
40
%
 
39
%
Fixed income funds
60
%
 
59
%
Other types of investments
—
%
 
2
%
Total
100.00
%
 
100.00
%
The asset allocation targets have been set with the expectation that the Pension Plans’ assets will fund the expected liabilities within an appropriate level of risk. In determining the appropriate target asset allocations, the Benefits Committee considers the demographics of the Pension Plans’ participants, the funding status of each plan, the Company’s contribution philosophy, the Company’s business and financial profile and other associated risk factors. The Pension Plans’ assets are periodically rebalanced among the major asset categories to maintain the asset allocation within a specified range of the target allocation percentage.
For the year ended December 31, 2017, $14,322, of cash contributions were made to the Pension Plans. The Company expects to contribute $13,344 to the Pension Plans in 2018, including the $9,000 required under the POR.
The following represents expected future pension benefit payments for the next ten years:
2018
$
29,436

2019
29,858

2020
30,989

2021
31,894

2022
32,704

2023-2027
171,077

 
$
325,958


F-166
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The fair values of the Company’s Pension Plans’ assets as of December 31, 2017, by asset category are as follows:
 
 
 
Quoted Market
Prices in Active
Market for
Identical
Assets
 
Significant
Observable
Inputs
 
Significant
Unobservable
Inputs
Asset Category
Total
 
(Level 1)
 
(Level 2)
 
(Level 3)
Equity securities:
 
 
 
 
 
 
 
Multi-asset fund (a)
$
212,337

 
$
—

 
$
212,337

 
$
—

Fixed income funds:
 
 
 
 
 
 
 
Bond fund (b)
320,478

 
—

 
320,478

 
—

Other types of investments:
 
 
 
 
 
 
 
Guaranteed insurance contract
10,675

 
—

 
—

 
10,675

Total
$
543,490

 
$
—

 
$
532,815

 
$
10,675

Receivable (c)
1,038

 
 
 
 
 
 
Total assets at fair value
544,528

 
 
 
 
 
 
Private equity funds measured at net asset value practical expedient (1)
2,910

 
 
 
 
 
 
Total plan assets
$
547,438

 
 
 
 
 
 
______________
(a)
This fund contains equities (domestic and international), real estate, and bonds.
(b)
This fund contains bonds representing a diversity of sectors and maturities. This fund also includes mortgage-backed securities and U.S. Treasuries.
(c)
Receivable for investments sold at December 31, 2017, which approximates fair value.

The fair values of the Company’s Pension Plans’ assets as of December 31, 2016, by asset category are as follows:
 
 
 
Quoted Market
Prices in Active
Market for
Identical
Assets
 
Significant
Observable
Inputs
 
Significant
Unobservable
Inputs
Asset Category
Total
 
(Level 1)
 
(Level 2)
 
(Level 3)
Equity securities:
 
 
 
 
 
 
 
Multi-asset fund (a)
$
195,656

 
$
—

 
$
195,656

 
$
—

Fixed income funds:
 
 
 
 
 
 
 
Bond fund (b)
294,688

 
—

 
294,688

 
—

Other types of investments:
 
 
 
 
 
 
 
    Guaranteed insurance contract
10,553

 
—

 
—

 
10,553

Total
$
500,897

 
$
—

 
$
490,344

 
$
10,553

Receivable (c)
2,676

 
 
 
 
 
 
Total assets at fair value
503,573

 
 
 
 
 
 
Private equity funds measured at net asset value practical expedient (1)
3,438

 
 
 
 
 
 
Total plan assets
$
507,011

 
 
 
 
 
 
______________
(a)
This fund contains equities (domestic and international), real estate, and bonds.
(b)
This fund contains bonds representing a diversity of sectors and maturities. This fund also includes mortgage-backed securities and U.S. Treasuries.
(c)
Receivable for investments sold at December 31, 2016, which approximates fair value.

F-167
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Changes in Level 3 plan assets for the period ended December 31, 2017 were as follows: 
 
Fair Value 
Measurements Using Significant
Unobservable Inputs (Level 3)
 
Guaranteed
Insurance
Contract
Beginning balance, December 31, 2016
$
10,553

Actual return on plan assets:
 
Relating to assets still held at the reporting date
(228
)
Relating to assets sold during the period
—

Purchases, sales, and settlements
350

Ending balance, December 31, 2017
$
10,675

Changes in Level 3 plan assets for the period ended December 31, 2016 were as follows: 
 
Fair Value 
Measurements Using Significant
Unobservable Inputs (Level 3)
 
Guaranteed
Insurance
Contract
Beginning balance, July 26, 2016
10,434

Actual return on plan assets:
 
Relating to assets still held at the reporting date
—

Relating to assets sold during the period
—

Purchases, sales, and settlements
119

Ending balance, December 31, 2016
$
10,553

The following is a description of the valuation methodologies used for assets measured at fair value:
Level 1 Plan Assets: Assets consist of individual security positions which are easily traded on recognized market exchanges. These securities are priced and traded daily, and therefore the fund is valued daily.
Level 2 Plan Assets: Funds consist of individual security positions which are mostly securities easily traded on recognized market exchanges. These securities are priced and traded daily, and therefore the fund is valued daily.
Level 3 Plan Assets: Assets are valued monthly or quarterly based on the Market Value provided by managers of the underlying fund investments. The Market Value provided typically reflects the fair value of each underlying fund investment, including unrealized gains and losses.
(1)
In accordance with Accounting Standards Update 2015-07, investments that are measured at fair value using the net asset value per share practical expedient have not been classified in the fair value hierarchy. The fair value amounts presented in this table are intended to permit reconciliation of the fair value hierarchy to the total value of assets of the plans.
(b)    Workers’ Compensation and Pneumoconiosis (Black lung)
The Company is required by federal and state statutes to provide benefits to employees for awards related to workers’ compensation and black lung. The Company’s subsidiaries are insured for worker’s compensation and black lung obligations by a third-party insurance provider with the exception of certain subsidiaries in which the Company is a qualified self-insurer

F-168
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

for workers’ compensation and/or black lung related obligations. Certain of the Company’s subsidiaries are self-insured for black lung benefits and may fund benefit payments through a Section 501(c) (21) tax-exempt trust fund.
The liability for self-insured workers’ compensation claims (including the liability for subsidiaries utilizing high-deductible insurance programs) is an actuarially determined estimate of the undiscounted ultimate losses to be incurred on such claims based on the Company’s experience and includes a provision for incurred but not reported losses. The liability for self-insured black lung benefits (including the liability for subsidiaries utilizing high-deductible insurance programs) is estimated by an independent actuary by prorating the accrual of actuarially projected benefits over the employee’s applicable term of service. Adjustments to the probable ultimate liability for workers’ compensation and black lung are made annually based on actuarial valuations.
During 2017, the Company executed a reinsurance contract with a third party and made a lump sum payment in exchange for the reinsurance company’s agreement to administer and pay certain future workers compensation and state black lung obligations in the state of Kentucky. The estimated liability for these future claims remains as a liability on the Consolidated Balance Sheet as of December 31, 2017. As the liabilities are paid by the insurance company, the prepaid insurance amounts will be reduced by a corresponding amount. The total lump sum payment exceeded the workers compensation and state black lung obligations recorded as a liability, resulting in a $6,330 charge to Cost of coal sales for the year ended December 31, 2017.
The Company’s self-insured workers’ compensation net liability, before prepaid insurance, was $138,797 and $146,346, including a current liability portion of $13,159 and $14,103, and an offsetting long term receivable of $16,796 and $17,843, for amounts estimated to be recoverable from insurance, at December 31, 2017 and 2016, respectively. Further offsetting the $138,797 of liability at December 31, 2017 is prepaid insurance amount of $31,129, resulting in a net liability of $107,668.
Self-insured workers’ compensation expense for the period ended December 31, 2017 and 2016 was $17,525 and $9,782. Certain of the workers’ compensation obligations and surety bonds are secured by letters of credit in the amount of $74,452 and $95,563, respectively. In addition, certain of the state bonding and legacy general liability insurance claims are secured by letters of credit in the amount of $15,000 and $26,111, respectively.
For the Company’s subsidiaries that utilize third-party insurance providers for workers’ compensation and black lung claims, the insurance premium expense for the year ended December 31, 2017 and the period ended December 31, 2016 was $5,875 and $1,786, respectively.
The following tables set forth the accumulated black lung benefit obligations, fair value of plan assets and funded status for the year ended December 31, 2017 and for the period July 26 through December 31, 2016:
 
Year Ended
December 31, 2017
 
July 26 through
December 31, 2016
Change in benefit obligations:
 
 
 
Accumulated benefit obligation at beginning of period:
$
69,118

 
$
71,585

Service cost
1,542

 
760

Interest cost
2,624

 
876

Actuarial (gain) loss
33,136

 
(602
)
Benefits paid
(11,288
)
 
(3,501
)
Accumulated benefit obligation at end of period
$
95,132

 
$
69,118


F-169
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Change in fair value of plan assets:
 
 
 
Fair value of plan assets at beginning of period
$
2,616

 
$
2,624

Actual loss on plan assets
(30
)
 
(8
)
Benefits paid
(11,288
)
 
(3,501
)
Employer contributions
11,288

 
3,501

Fair value of plan assets at end of period
2,586

 
2,616

Funded status
$
(92,546
)
 
$
(66,502
)
 
 
 
 
Amounts recognized in the Consolidated Balance Sheets:
 
 
 
Current liabilities
$
7,357

 
$
3,412

Long-term liabilities
85,189

 
63,090

 
$
92,546

 
$
66,502

Gross amounts related to black lung obligations recognized in accumulated other comprehensive (income) loss consisted of the following as of December 31, 2017 and 2016:
 
December 31, 2017
 
December 31, 2016
Net actuarial (gain) loss
$
32,666

 
$
(567
)
The following table details the components of the net periodic benefit cost for black lung obligations:
 
Year Ended
December 31, 2017
 
July 26 through December 31, 2016
Service cost
$
1,542

 
$
760

Interest cost
2,624

 
876

Expected return on plan assets
(67
)
 
(27
)
Net periodic expense
$
4,099

 
$
1,609

Other changes in the black lung plan assets and benefit obligations recognized in other comprehensive (income) loss are as follows:
 
Year Ended
December 31, 2017
 
July 26 through December 31, 2016
Current year actuarial (gain) loss
$
33,233

 
$
(567
)
Total recognized in other comprehensive (income) loss
$
33,233

 
$
(567
)
Total recognized in net periodic benefit cost and other comprehensive (income) loss
$
37,332

 
$
1,042

The weighted-average assumptions related to black lung obligations used to determine the benefit obligation as of December 31, 2017 and 2016 were as follows: 
 
December 31, 2017
 
December 31, 2016
Discount rate
3.65
%
 
4.16
%

F-170
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

The weighted-average assumptions related to black lung obligations used to determine net periodic benefit cost were as follows: 
 
Year Ended
December 31, 2017
 
July 26 through December 31, 2016
Discount rate
4.18
%
 
3.50
%
Expected long-term return on plan assets
2.50
%
 
2.50
%
Federal benefit trend rate
3.00
%
 
3.00
%
Health care cost trend rate
5.00
%
 
5.00
%
Estimated future cash payments related to black lung obligations for the next ten years ending after December 31, 2017 are as follows: 
Year ending December 31:
 
2018
$
7,479

2019
4,894

2020
4,895

2021
5,064

2022
5,679

2023-2027
15,145

 
$
43,156

(c)    Defined Contribution Retirement Savings Plans
The Company sponsors multiple defined contribution and profit sharing plans to assist its eligible employees in providing for retirement. Generally, under the terms of these plans, employees make voluntary contributions through payroll deductions and the Company makes matching and/or discretionary contributions, as defined by each plan. The Company did not match contributions for non-union employees during the period from July 26 through December 31, 2016. The Company’s total contributions to these plans for the period ended December 31, 2016 were $59. The Company implemented an employer contribution plan effective January 1, 2017 for those employees remaining employed as of December 31, 2017. An expense of $8,265 was recorded for the year ended December 31, 2017, with the cash being contributed to employee accounts in January of 2018.
(d)    Self-Insured Medical Plan
Certain subsidiaries of the Company are principally self-insured for health insurance coverage provided for all of its active employees. Estimated liabilities for health and medical claims are recorded based on the Company’s historical experience and include a component for incurred but not reported claims. During the year ended December 31, 2017 and the period from July 26 through December 31, 2016, the Company incurred total claims expense of $44,074 and $15,091, respectively, which represented claims processed and an estimate for claims incurred but not reported.
(19) Stock Based Compensation Awards
On May 3, 2017 the Company’s Board of Directors adopted the ANR, Inc. 2017 Equity Incentive Plan to compensate certain individuals for their service to the Company and to further align the individual’s financial interests with those of the Company’s stockholders. 2,000,000 Class C-3 common shares were reserved for issuance under the plan, and awards covering 1,800,000 shares were granted.

F-171
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

Restricted Stock Awards
During the year ended December 31, 2017, the Company granted a total of 18,000 restricted Class C-3 common shares to certain executive officers, directors, and key employees. The company recorded $23 of stock-based compensation expense in 2017 related to these shares.
Non-qualified Stock Option
During the year ended December 31, 2017, the Company granted a total of 1,782,000 in non-qualified stock options to certain executive officers, directors, and key employees. The options are exercisable at $1.25 per share, but cannot be exercised unless a change of control event occurs. No stock-based compensation expense was recorded in 2017 for these options given the change of control limitation on exercisability.
(20) Commitments and Contingencies
(a) General
Estimated losses from loss contingencies are accrued by a charge to income when information available indicates that it is probable that an asset has been impaired, or a liability has been incurred, and the amount of the loss can be reasonably estimated. If a loss contingency is not probable or reasonably estimable, disclosure of the loss contingency is made in the consolidated financial statements when it is at least reasonably possible that a loss may be incurred and that the loss could be material.
(b) Commitments and Contingencies
Commitments
The Company leases coal mining and other equipment under long-term capital and operating leases with varying terms. In addition, the Company leases mineral interests and surface rights from land owners under various terms and royalty rates.
As of December 31, 2017, aggregate future minimum non-cancelable lease payments under operating leases and minimum royalties under coal leases were as follows: 
 
Operating
Leases
 
Coal Royalties
Year Ending December 31:
 
 
 
2018
$
2,123

 
$
10,403

2019
544

 
8,268

2020
449

 
7,053

2021
—

 
6,282

2022
—

 
5,620

Thereafter
—

 
21,040

Total
$
3,116

 
$
58,666

For the year ended December 31, 2017 and for the period from July 26 through December 31, 2016, net rent expense under operating leases was $5,394 and $1,429, respectively, and coal royalty expense was $63,092 and $21,748, respectively.
Contingencies
Extensive regulation of the impacts of mining on the environment and of maintaining workplace safety, and related litigation, has had or may have a significant effect on the Company’s costs of production and results of operations. Further regulations, legislation or litigation in these areas may also cause the Company’s sales or profitability to decline by increasing costs or by hindering the Company’s ability to continue mining at existing operations or to permit new operations.

F-172
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

During the normal course of business, contract-related matters arise between the Company and its customers. When a loss related to such matters is considered probable and can reasonably be estimated, the Company records a liability.
(c) Guarantees and Financial Instruments with Off-Balance Sheet Risk
In the normal course of business, the Company is a party to certain guarantees and financial instruments with off-balance sheet risk, such as bank letters of credit, performance or surety bonds, and other guarantees and indemnities related to the obligations of affiliated entities which are not reflected in the Company’s Consolidated Balance Sheets. As of December 31, 2017, the Company had outstanding surety bonds with a total face amount of $265,647 to secure various obligations and commitments and had self-bonding guarantees in the amount of $105,013. The amounts above include bonds for permits that have been sold and are in the process of being transferred to new owners and the Company will have no self-bonding guarantees once these permits are transferred. As of December 31, 2017, the Company had outstanding letters of credit amounting to $211,126 backing surety bonds and workers compensation obligations.
(d) Legal Proceedings
The Company’s legal proceedings have historically ranged from cases brought by a single plaintiff to purported class actions. As a result of the POR, most of the legal proceedings that have been pending against the Company will either be handled through a bankruptcy claims process or by the plaintiffs agreeing to proceed only against any insurance coverage that Old ANR may have. While some matters pending against the Company or its subsidiaries specify the damages claimed by the plaintiffs, many seek an unquantified amount of damages or are at very early stages of the legal process. Accordingly, the estimated aggregate range of possible loss does not represent the Company’s maximum loss exposure. The legal proceedings and governmental examinations underlying the estimated range will change from time to time, and actual results may vary significantly from the current estimate. The Company intends to defend these legal proceedings vigorously, litigating or settling cases where in the Company’s judgment it would be in the best interest of stockholders to do so.
For purposes of FASB ASC Topic 450 (“ASC 450”), an event is “reasonably possible” if “the chance of the future event or events occurring is more than remote but less than likely” and an event is “remote” if “the chance of the future event or events occurring is slight.” ASC 450 requires accrual for a liability when it is (a) “probable that one or more future events will occur confirming the fact of loss” and (b) “the amount of loss can be reasonably estimated.” If a range of loss is estimated, the best estimate within the range is required to be accrued. If no amount within the range is a better estimate, the minimum amount of the range is required to be accrued.
The Company evaluates developments in legal proceedings and governmental examinations that could cause an increase or decrease in the amount of the reserves previously recorded. Excluding fees paid to external legal counsel, the Company recognized expense, net of expected insurance recoveries, associated with litigation-related reserves of $9,650 and $0 during the year ended December 31, 2017 and the period July 26 through December 31, 2016, respectively.
The Company and its subsidiaries are involved in a number of legal proceedings and governmental examinations incidental to its normal business activities. While the Company cannot predict the outcome of these proceedings, the Company does not believe that any liability arising from these matters individually or in the aggregate should have a material impact upon its consolidated cash flows, results of operations or financial condition.
WVDEP Action
In November 2016, the Company submitted a motion to the Bankruptcy Court seeking approval of a settlement with Contura and the agent for the Company’s former first lien lenders regarding the allocation of certain expenses of the estate that had not been properly accounted for in the financial projections included in the Disclosure Statement (the “Plan Implementation Settlement”).  The terms of the Plan Implementation Settlement provided a total of $26,700 in cash reimbursement to the Company for payments it made, waived an $18,000 payment owed to Contura, and otherwise resolved issues related to these expenses between the parties.  On November 16, 2016, one day before the Bankruptcy Court hearing to approve this settlement, the West Virginia Department of Environmental Protection filed an adversary complaint against Alpha Natural Resources, Inc., Contura, and certain former officers of Alpha Natural Resources, Inc.  The Plan Implementation Settlement was approved by the Bankruptcy Court on December 6, 2016.  The adversary complaint was dismissed with prejudice on December 7, 2016 as part of a consensual resolution of WVDEP’s claims.  Pursuant to that

F-173
ANR, INC. AND SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except for share and per share data)

resolution, Contura agreed to post $8,500 in support of the Company’s reclamation obligations through the end of 2018 and the Company agreed to provide WVDEP with a mortgage on its corporate office building in West Virginia, the value of which serves to reduce the Company’s self-bonded obligation in West Virginia. 
(e) Alternative Minimum Tax Credit - Future Refunds
The Company recorded an income tax benefit in 2017 of $23,027 related to future alternative minimum tax credits refunds. It is reasonably possible that a governmental agency will attempt to claim a right of offset against prepetition bankruptcy claims when the refunds are filed.
(21) Concentration of Credit Risk and Major Customers
The Company markets its coal principally to electric utilities in the United States and domestic steel producers. The Company also sells steam coal through brokers to the international market and sells metallurgical coal to a third party who then markets this coal to international steel producers. Credit is extended based on an evaluation of the customer’s financial condition and collateral is generally not required. Credit losses are provided for in the Consolidated Financial Statements and historically have been minimal. For the year ended December 31, 2017 and the period ended December 31, 2016, the Company’s ten largest customers accounted for approximately 90% and 91%, respectively, of total coal sales revenue. Sales to the Company’s largest customer accounted for approximately 38% and 33% of total coal sales revenue for the year ended December 31, 2017 and the period ended December 31, 2016, respectively. Steam coal accounted for approximately 47% and 49% of the Company’s coal sales volume for the year ended December 31, 2017 and the period ended December 31, 2016, respectively. Metallurgical coal accounted for approximately 53% and 51% of the Company’s coal sales volume year ended December 31, 2017 and the period ended December 31, 2016, respectively. Additionally, one of the Company’s customers had an outstanding balance of approximately 32% of the total accounts receivable balance as of December 31, 2017 and 2016.
(22) Subsequent Events
The Company’s subsequent events have been evaluated through March 31, 2018, the date at which the Consolidated Financial Statements were available to be issued.
On February 15, 2018, stockholders approved the Company’s proposal to exchange shares of the existing classes and series of stock for new shares at specified exchange ratios. Following stockholder approval and the effectiveness of the reclassifications, ANR has two classes of common stock, one of which will trade. The total common shares authorized equals 54,223,400, with 20,131,152 currently outstanding. Class C-3 common shares and preferred shares were eliminated in the reclassification.

F-174






ANR, Inc.

Condensed Consolidated Financial Statements (Unaudited)


As of June 30, 2018 and December 31, 2017 and for the six months ended June 30, 2018 and 2017



F-175

ANR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in thousands, except for share and per share data)
 
Six Months Ended
June 30,
 
2018
 
2017
Revenues:
 
 
 
Coal revenues
$
603,727

 
$
617,217

Freight and handling revenues
—

 
17,446

Other revenues
2,992

 
4,318

Total revenues
606,719

 
638,981

 
 
 
 
Costs and expenses:
 
 
 
Cost of coal sales (exclusive of items shown separately below)
447,969

 
457,450

Loss on disposition of property, plant and equipment
5,823

 
1,350

Freight and handling costs
17,677

 
17,446

Other expenses
—

 
751

Depreciation, depletion and amortization
18,120

 
24,790

Amortization of acquired coal supply agreements, net
143

 
5,125

Accretion of asset retirement obligations
8,147

 
8,594

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
27,839

 
16,708

Mark-to-market adjustment – acquisition-related obligations
8,706

 
3,091

Total costs and expenses
534,424

 
535,305

Income from operations
72,295

 
103,676

Other income (expense):
 
 
 
Interest expense
(14,027
)
 
(8,033
)
Interest income
1,794

 
1,461

Loss on early extinguishment of debt
—

 
(16,348
)
Miscellaneous income, net
3,289

 
2,603

Total other expense, net
(8,944
)
 
(20,317
)
Income from continuing operations before income taxes
63,351

 
83,359

Income tax expense
—

 
(24,424
)
Net income from continuing operations
63,351

 
58,935

Discontinued operations (Note 3)
 
 
 
Income (loss) from discontinued operations (including gain on disposal of $2,857 and $9,264 for the six months ended June 30, 2018 and 2017, respectively) before income taxes
1,270

 
(35,655
)
Income tax benefit
—

 
467

Income (loss) from discontinued operations
1,270

 
(35,188
)
Net income
$
64,621

 
$
23,747

 
 
 
 
Basic income (loss) per common share:
 
 
 
 Income from continuing operations
$
3.15

 
$
2.93


F-176

 Income (loss) from discontinued operations
$
0.06

 
$
(1.75
)
 Net income
$
3.21

 
$
1.18

Diluted income (loss) per common share:
 
 
 
 Income from continuing operations
$
3.15

 
$
2.93

 Income (loss) from discontinued operations
$
0.06

 
$
(1.75
)
 Net income
$
3.21

 
$
1.18

Weighted average shares - basic
20,131,152

 
20,117,485

Weighted average shares - diluted
20,147,516

 
20,117,485

See accompanying Notes to Condensed Consolidated Financial Statements

F-177

ANR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Unaudited)
(Amounts in thousands)
 
Six Months Ended June 30,
 
2018
 
2017
Net income
$
64,621

 
$
23,747

Other comprehensive income, net of tax
—

 
—

Total comprehensive income
$
64,621

 
$
23,747

See accompanying Notes to Condensed Consolidated Financial Statements

F-178

ANR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except for share and per share data)
 
June 30,
2018
 
December 31,
2017
 
(Unaudited)
 
 
Assets
 
 
 
Current assets:
 
 
 
Cash and cash equivalents
$
72,904

 
$
45,978

Trade accounts receivable, net
63,243

 
126,170

Notes and other receivables
26,686

 
23,281

Inventories, net
82,429

 
63,913

Restricted cash
79,478

 
101,599

Prepaid expenses and other current assets
10,120

 
25,116

Total current assets
334,860

 
386,057

Property, plant and equipment, net
155,011

 
144,307

Acquired coal supply agreements (net of accumulated amortization of $21,195 and $21,052, respectively)
255

 
398

Long-term restricted cash
237,101

 
260,797

Other non-current assets
84,946

 
84,521

Total assets
$
812,173

 
$
876,080

 
 
 
 
Liabilities and Stockholders’ Equity (Deficit)
 
 
 
Current liabilities:
 
 
 
Current portion of long-term debt
$
26,814

 
$
18,655

Trade accounts payable
56,059

 
71,733

Accrued expenses and other current liabilities
144,763

 
186,540

Total current liabilities
227,636

 
276,928

Long-term debt, net of current portion
123,170

 
179,605

Workers compensation and black lung
221,814

 
227,623

Pension and postretirement medical benefit obligations
199,732

 
206,966

Asset retirement obligations
56,634

 
57,306

Other non-current liabilities
40,643

 
50,665

Total liabilities
869,629

 
999,093

 
 
 
 
Commitments and Contingencies (Note 19)
 
 
 
 
 
 
 
Stockholders’ Equity (Deficit)
 
 
 
Preferred stock - par value $0.01, no shares authorized or issued at June 30, 2018 and, 6,800,000 shares authorized, 6,800,000 issued and outstanding at December 31, 2017
—

 
68

Common stock - par value $0.01, 54,223,400 shares authorized, 20,131,152 issued and outstanding at June 30, 2018 and 12,000,000 shares authorized, 10,018,000 issued and outstanding at December 31, 2017
201

 
100

Additional paid-in capital
1,894

 
991

Accumulated other comprehensive loss
(28,169
)
 
(28,169
)

F-179

Accumulated deficit
(31,382
)
 
(96,003
)
Total stockholders’ equity (deficit)
(57,456
)
 
(123,013
)
Total liabilities and stockholders’ equity (deficit)
$
812,173

 
$
876,080

See accompanying Notes to Condensed Consolidated Financial Statements

F-180

ANR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in thousands)
 
Six Months Ended
June 30,
 
2018
 
2017
Operating activities:
 
 
 
Net income
$
64,621

 
$
23,747

Adjustments to reconcile net income to net cash provided by operating activities:
 
 
 
Depreciation, depletion, and amortization
18,120

 
30,882

Amortization of acquired coal supply agreements, net
143

 
5,125

Amortization of debt issuance costs and debt discount
7,109

 
2,612

Accretion of asset retirement obligations
8,287

 
32,475

Mark-to-market adjustment - acquisition-related obligations
8,706

 
3,091

Stock-based compensation
936

 
23

Employee benefit plans, net
(185
)
 
258

Loss (gain) on disposition of property, plant, and equipment
2,966

 
(7,914
)
Loss on early extinguishment of debt
—

 
16,348

Changes in operating assets and liabilities:
 
 
 
Trade accounts receivable, net
62,927

 
(6,334
)
Notes and other receivables
303

 
4,691

Inventories, net
(18,516
)
 
(26,301
)
Prepaid expenses and other current assets
14,836

 
6,768

Other non-current assets
2,200

 
(26,842
)
Trade accounts payable
(16,169
)
 
21,579

Accrued expenses and other current liabilities
(45,856
)
 
11,918

Workers compensation and black lung
(17,971
)
 
(12,047
)
Pension and postretirement medical benefit obligations
(11,665
)
 
(12,267
)
Asset retirement obligations
(2,669
)
 
(20,328
)
Other non-current liabilities
(4,384
)
 
(11,615
)
Net cash provided by operating activities
73,739

 
35,869

Investing activities:
 
 
 
Capital expenditures
(39,289
)
 
(24,480
)
Payments on disposition of property, plant, and equipment
(2,502
)
 
—

Proceeds from sale of property, plant and equipment
5,492

 
2,817

Net cash used in investing activities
(36,299
)
 
(21,663
)
Financing activities:
 
 
 
Principal repayments of long term debt
(55,510
)
 
(124,889
)
Letter of credit and AR securitization facilities fees
—

 
(3,510
)
Principal repayments of capital lease obligations and notes payable
(821
)
 
(2,036
)
Net cash used in financing activities
(56,331
)
 
(130,435
)
Net decrease in cash, cash equivalents and restricted cash
(18,891
)
 
(116,229
)
Cash, cash equivalents, and restricted cash at beginning of period
408,374

 
636,383

Cash, cash equivalents, and restricted cash at end of period
$
389,483

 
$
520,154

 
 
 
 
Supplemental cash flow information - Discontinued Operations:
 
 
 

F-181

Net cash used in operating activities of discontinued operations included above
$
(1,502
)
 
$
(30,500
)
Net cash provided by (used in) investing activities included above
$
(2,502
)
 
$
1,930

 
 
 
 
 
 
 
 
Supplemental cash flow information:
 
 
 
Cash paid for interest
$
7,018

 
$
7,632

Cash paid for income taxes
$
2

 
$
11,502

Cash received for income tax refunds
$
12,265

 
$
7,333

Supplemental disclosure of non-cash investing and financing activities:
 
 
 
 Accrued capital expenditures
$
1,953

 
$
1,383


F-182

ANR, INC. AND S UBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in thousands)
The following table provides a reconciliation of cash and cash equivalents and restricted cash reported within the Condensed Consolidated Balance Sheets that sum to the total of the same amounts shown in the Condensed Consolidated Statements of Cash Flows.
 
As of June 30,
 
2018
 
2017
Cash and cash equivalents
$
72,904

 
$
101,105

Short-term restricted cash
79,478

 
71,713

Long-term restricted cash
237,101

 
347,336

Cash, cash equivalents, and restricted cash
$
389,483

 
$
520,154

See accompanying Notes to Condensed Consolidated Financial Statements

F-183

ANR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT) (Unaudited)
(Amounts in thousands)
 
Preferred Stock
 
Common Stock
 
Additional Paid in Capital
 
Accumulated Other Comprehensive Income (Loss)
 
Accumulated Deficit
 
Total Stockholders' Equity (Deficit)
 
Shares
 
Amount
 
Shares
 
Amount
 
 
 
 
Balances, December 31, 2016
6,800

 
$
68

 
10,000

 
$
100

 
$
968

 
$
28,220

 
$
(57,117
)
 
$
(27,761
)
Net loss
—

 
—

 
—

 
—

 
—

 
—

 
(38,886
)
 
(38,886
)
Other comprehensive loss
—

 
—

 
—

 
—

 
—

 
(56,389
)
 
—

 
(56,389
)
Issuance of Class C-3 Common Shares
—

 
—

 
18

 
—

 
23

 
—

 
—

 
23

Balances, December 31, 2017
6,800

 
68

 
10,018

 
100

 
991

 
(28,169
)
 
(96,003
)
 
(123,013
)
Net income
—

 
—

 
—

 
—

 
—

 
—

 
64,621

 
64,621

Reclassification and charter amendment
(6,800
)
 
(68
)
 
10,113

 
101

 
(33
)
 
—

 
—

 
—

Stock-based compensation
—

 
—

 
—

 
—

 
936

 
—

 
—

 
936

Balances, June 30, 2018
—

 
$
—

 
20,131

 
$
201

 
$
1,894

 
$
(28,169
)
 
$
(31,382
)
 
$
(57,456
)
See accompanying Notes to Condensed Consolidated Financial Statements 

F-184
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

(1) Business and Basis of Presentation
Business
ANR, Inc. and its consolidated subsidiaries (the “Company”, “ANR” or “Alpha”) are primarily engaged in the business of extracting, processing and marketing steam and metallurgical coal from surface and deep mines, and mainly sells to electric utilities, steel and coke producers, industrial customers, and coal brokers. The Company, through its subsidiaries, is also involved in marketing coal produced by others to supplement its own production and, through blending, provides its customers with coal qualities beyond those available from its own production.
At June 30, 2018, the Company’s coal operations consisted of fourteen deep mines, seven surface mines, nine preparation plants and two barge loadouts located in West Virginia. The Company is also responsible for reclaiming properties where mining is completed, or no active mining is occurring. At June 30, 2018, the Company had approximately 2,700 employees, of which 43 are affiliated with union representation with the United Mine Workers of America (“UMWA”).
Basis of Presentation
ANR, Inc. was formed as a result of the bankruptcy of Alpha Natural Resources, Inc. (“ANRI”) and on July 26, 2016, ANR officially emerged as a private company (the “Effective Date”). Upon emergence from bankruptcy, ANRI effectively split into two entities. ANR emerged, and pursuant to an asset purchase agreement (“APA”) that closed simultaneously with the effectiveness of the plan of reorganization, ANRI sold a number of its assets to Contura Energy, Inc. (or “Contura”), which was a new entity established by ANRI’s former First Lien Lenders.
Certain information and footnote disclosures normally included in annual financial statements prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”) have been omitted. The interim Condensed Consolidated Financial Statements of the Company presented in this report are unaudited. All significant intercompany balances and transactions have been eliminated in consolidation. The results of operations for any interim period are not necessarily indicative of the results to be expected for the full year. These Condensed Consolidated Financial Statements should be read in conjunction with the Company’s audited Consolidated Financial Statements and the notes thereto as of and for the year ended December 31, 2017. The Condensed Consolidated balances presented as of December 31, 2017 are derived from the Company’s audited Consolidated Financial Statements. 
Management of the Company has made a number of estimates and assumptions relating to the reporting of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in order to prepare these Condensed Consolidated Financial Statements in conformity with U.S. GAAP. Significant estimates made by management include the allowance for non-recoupable advanced mining royalties, the valuation of inventory, the valuation allowance for deferred tax assets, recoverability of long-lived assets, asset retirement obligations and amounts accrued related to the Company’s workers’ compensation, black lung, pension and health claim obligations. Actual results could differ from these estimates. In the opinion of management, the accompanying unaudited Condensed Consolidated Financial Statements contain all adjustments, consisting of normal recurring accruals, which are necessary to present fairly the Condensed Consolidated financial position of the Company and the Condensed Consolidated results of its operations and cash flows for all periods presented.
New Accounting Pronouncements Adopted
In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Codification (“ASU”) 2014-09, Revenue from contracts with customers (Topic 606) (“ASC 606”), which, along with amendments issued in 2015 and 2016 replaces substantially all current U.S. GAAP guidance on this topic and eliminates industry-specific guidance. In addition, the standard requires disclosure of the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers.
The standard is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities), with early adoption permitted. The guidance permits two methods of adoption: full retrospective method (retrospective application to each prior reporting period presented) or modified retrospective method (retrospective application with the cumulative effect of initially applying the guidance recognized at the date of initial application and

F-185
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

providing certain additional disclosures). The Company adopted ASU 2014-9 as of January 1, 2018, using the modified retrospective method. The Company applied the standard to all customer contracts entered into as of or after the date of initial application. Subsequent to the adoption of ASU 2014-09, freight and handling revenues are presented within coal revenues in the Company’s Condensed Consolidated Statements of Operations. The adoption of the standard did not have a material impact on the Company’s Condensed Consolidated Financial Statements for the period ended June 30, 2018. The following table summarizes the impact of the adoption of ASC 606 to the Company’s Condensed Consolidated Statements of Operations:
 
Six Months Ended June 30, 2018
 
As Reported
 
Adjustments (1)
 
Balances prior to adoption of ASC 606
Revenues:
 
 
 
 
 
Coal Revenues
$
603,727

 
$
(19,313
)
 
$
584,414

Freight and handling revenues
—

 
18,549

 
18,549

Other revenues
2,992

 
2,096

 
5,088

Total Revenues
$
606,719

 
$
1,332

 
$
608,051

Freight and handling expense
$
17,677

 
$
872

 
$
18,549

Other expense
$
—

 
$
460

 
$
460

______________
(1)
The adjustments represent freight and handling revenues, and coal additives being treated as fulfillments costs and included within coal revenues under ASC 606.

Refer to Note 2 for further disclosure requirements under the new standard.
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments . This update addresses whether to present certain specific cash flow items as operating, investing or financing activities. The standard is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities) and is required to be adopted using a retrospective approach if practicable, with early adoption permitted. The classification requirements under the new guidance are either consistent with the Company’s current practices or are not applicable to its activities and therefore did not have a material impact on classification of cash receipts and cash payments in the Company’s Condensed Consolidated Statements of Cash Flows.
In November 2016, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230), Restricted Cash (“ASU 2016-18”). The amendments in the update provide guidance on restricted cash presentation in the statement of cash flows. ASU 2016-18 is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities), and interim periods within annual periods beginning after December 15, 2017. Early adoption is permitted, and the Company adopted this ASU effective January 1, 2018. As a result of this guidance, the Company has combined restricted cash with unrestricted cash and cash equivalents when reconciling the beginning and end of period balances on its Condensed Consolidated Statements of Cash Flows.
In March 2017, the FASB issued ASU 2017-07, Improving the Presentation of Net Periodic Pension Cost and Net Periodic Post-retirement Benefit Cost . The amendments in this update require that an employer disaggregate the service cost component from the other components of net periodic benefit cost. In addition, only the service cost component will be eligible for capitalization. The standard is effective for annual reporting periods beginning after December 15, 2018 (December 15, 2017 for public entities). The new guidance is to be applied retrospectively for income statement effect and prospectively for balance sheet effects. Additionally, the new guidance allows a practical expedient that permits employers to use the amounts disclosed in its pension and other postretirement benefit plan note for the prior comparative periods as the estimation basis for applying the retrospective presentation requirements. The Company adopted ASU 2017-07 during the first quarter of 2018, electing to use the practical expedient as the estimation basis for applying the retrospective presentation requirements. The retrospective application resulted in a $3,941 reduction in cost of coal sales with the corresponding offset to miscellaneous income for the six months ended June 30, 2017.

F-186
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

In January 2016, the FASB issued ASU 2016-01, Financial Instruments - Overall (Subtopic 825-10), Recognition and Measurement of Financial Assets and Financial Liabilities ("ASU 2016-01"). The amendments in this update address certain aspects of recognition, measurement, presentation and disclosure of financial instruments. ASU 2016-01 is effective for annual periods beginning after December 15, 2018 (December 15, 2017 for public entities) and interim periods within those annual periods. Early adoption was not permitted. The adoption of the standard did not have a material impact on the Company’s Condensed Consolidated Financial Statements.
In May 2017, the FASB issued ASU 2017-09, Compensation (Topic 718), Stock Compensation (“ASU 2017-09”). The amendments in this update provide guidance on the scope of modification accounting. ASU 2017-09 is effective for all entities for annual periods, and interim periods within those annual periods, beginning after December 15, 2017. The Company adopted this ASU effective January 1, 2018. The adoption of the standard did not have a material impact on the Company’s Condensed Consolidated Financial Statements.
New Accounting Pronouncements Not Yet Adopted
The Company is currently evaluating the impact that the following new accounting pronouncement will have on its Condensed Consolidated Financial Statements and disclosures.
In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842), Amendments to the FASB Accounting Standards Codification ("ASU 2016-02"). ASU 2016-02 is a comprehensive new leases standard that amends various aspects of existing guidance for leases and requires additional disclosures about leasing arrangements. It will require lessees to recognize lease assets and lease liabilities for those leases classified as operating leases under previous GAAP. Topic 842 retains a distinction between finance leases and operating leases. It is effective for annual periods beginning after December 15, 2019 (December 15, 2018 for public entities) and interim periods within fiscal years beginning after December 31, 2019. The Company plans to adopt Topic 842 on January 1, 2019. In the financial statements in which the ASU is first applied, leases shall be measured and recognized at the beginning of the earliest comparative period presented with an adjustment to equity. Practical expedients are available for election as a package and if applied consistently to all leases.
(2) Revenue
Revenue Recognition Accounting Policy
The Company adopted ASC 606, with a date of initial application of January 1, 2018, using the modified retrospective method. As a result, the Company has changes to its accounting policy for revenue recognition as outlined below.
Subsequent to the adoption of ASC 606, the Company measures revenue based on the consideration specified in a contract with a customer and recognizes revenue as a result of satisfying its promise to transfer goods or services in a contract with a customer using the following general revenue recognition five-step model: (1) identify the contract; (2) identify performance obligations; (3) determine transaction price; (4) allocate transaction price; (5) recognize revenue. Freight and handling costs paid to third-party carriers and invoiced to coal customers are recorded as freight and handling costs and freight and handling fulfillment revenues within coal revenues, respectively.
Disaggregation of Revenue from Contracts with Customers
ASC 606 requires that entities disclose disaggregated revenue information in categories (such as type of good or service, geography, market, type of contract, etc.) that depict how the nature, amount, timing, and uncertainty of revenue and cash flow are affected by economic factors. ASC 606 explains that the extent to which an entity’s revenue is disaggregated depends on the facts and circumstances that pertain to the entity’s contracts with customers and that some entities may need to use more than one type of category to meet the objective for disaggregating revenue.
The Company earns revenues primarily through the sale of coal produced at Company operations and coal purchased from third parties. The Company extracts, processes and markets steam and met coal from surface and deep mines for sale to electric utilities, steel and coke producers, and industrial customers. The Company has one reportable segment and conducts mining operations only in the United States with mines in Central Appalachia.

F-187
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

Performance Obligations
The Company considers each individual transfer of coal on a per shipment basis to the customer a performance obligation. The pricing terms of the Company’s contracts with customers include fixed pricing, variable pricing, or a combination of both fixed and variable pricing. All of the Company’s revenue derived from contracts with customers is recognized at a point in time. The estimated revenue expected to be recognized in the future related to performance obligations that are unsatisfied as of June 30, 2018 amounts to $15,306, with $12,983 relating to the remainder of 2018 and $2,323 relating to 2019. Amounts only include estimated coal revenues associated with customer contracts with fixed pricing and an original expected duration of more than one year. The Company has elected not to disclose the aggregate amount of the transaction price allocated to the performance obligations that are unsatisfied (or partially unsatisfied) as of the end of the reporting period for performance obligations with either of the following conditions: 1) the remaining performance obligation is part of a contract that has an original expected duration of one year or less; or 2) the remaining performance obligation has variable consideration that is allocated entirely to a wholly unsatisfied performance obligation.
Contract Balances
The Company receives prepayments under certain contracts with customers based on contract payment terms and the timing of shipments. These amounts are recognized within revenues upon satisfaction of the related performance obligations. The following table includes the opening and closing balances of contract liabilities from contracts with customers, which are included within accrued expenses and other current liabilities on the Company’s Condensed Consolidated Balance Sheets:
 
June 30,
2018
 
December 31,
2017
Contract Liabilities (1)
$
384

 
$
—

______________
(1)
Amounts relate to customer prepayments under coal contracts.
(3) Discontinued Operations
On October 23, 2017 the Company closed the sale of substantially all idle assets in Kentucky, Tennessee, and West Virginia to Lexington Coal Company (“LCC”) with funding for the transaction under a $150,000 credit facility (see Note 11). The conveyance included real property, substantial reclamation equipment, and the transfer of ongoing royalty payment obligations associated with the properties.
As a result of the transaction, the Company was relieved of the future asset retirement obligations (“ARO”) on the properties. ANR paid LCC approximately $199,000 in cash at closing and is obligated to pay an additional $94,000 in installment payments to assist in the fulfillment of bonding, reclamation, water treatment and other obligations. The Company also assigned its right to the $32,000 reclamation funding receivable from Contura to LCC. The $199,000 of cash was comprised of approximately $140,000 of cash from the credit facility, and approximately $59,000 from the Global Reclamation Agreements (see Note 12) accounts and other restricted cash accounts of the Company.
The $94,000 of installment payments is comprised of an $80,000 note payable to LCC over a 5-year period, with payments of $17,500, including imputed interest, beginning July 26, 2018 and for three additional years on the July 26 th anniversary date, plus a final payment of $10,000 on July 26, 2022. The third component relates to ANR’s obligation to contribute $14,000, including imputed interest, into LCC’s water treatment restricted cash accounts from 2018 through 2023. Contributions of $1,500 are due during 2018 and increase to $2,500 in each of the years 2019 through 2023.
In addition to the LCC transaction, there were other smaller transactions where idle properties were disposed of in 2017, with some additional transactions that closed in the period ended June 30, 2018 (the idled properties associated with the LCC transaction and other related transactions comprise what ANR considers an asset disposal group under ASC 360).
Based upon management’s determination that the idled property dispositions meet all of the criteria under ASC 205-20, the results of operations and the loss on disposition are reported as discontinued operations in the current and prior period presented in the Condensed Consolidated Statements of Operations.

F-188
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

The following table reflects the activities for the discontinued operations for the six months ended June 30, 2018 and 2017:
 
Six Months Ended June 30,
 
2018
 
2017
Revenues:
 
 
 
Coal revenues
$
—

 
$
15,813

Freight and handling revenues
—

 
499

Total revenues
—

 
16,312

 
 
 
 
Costs and expenses:
 
 
 
Cost of coal sales (exclusive of items shown separately below)
1,447

 
30,759

Gain on disposition of property, plant and equipment
(2,857
)
 
(9,264
)
Freight and handling costs
—

 
499

Depreciation, depletion and amortization
—

 
6,092

Accretion of asset retirement obligations
140

 
23,881

Total costs and expenses
(1,270
)
 
51,967

Income (loss) from discontinued operations before Income tax benefit
1,270

 
(35,655
)
Income tax benefit from discontinued operations
—

 
467

Income (loss) from discontinued operations
$
1,270

 
$
(35,188
)
Continued Involvement with Discontinued Operations
The Company entered into a Transitional Services Agreement with LCC to provide administrative assistance in various areas, in most cases for a six-month period after the closing date. To the extent ANR expends funds on behalf of LCC, LCC is required to reimburse those amounts. The agreement does not call for compensation to ANR over and above the costs incurred, resulting in no net cash inflow or outflow.
In addition, the Company entered into short term arrangements whereby the Company purchases from LCC certain quantities of coal mined incidental to LCC’s reclamation activities and sells that coal to the Company’s customers. The Company currently has several one-year agreements with LCC covering such purchases of coal in 2018. For the six months ended June 30, 2018, the Company purchased coal from LCC at a cost of $12,631.
(4) Accumulated Other Comprehensive Income (Loss)
The following tables summarize the changes to accumulated other comprehensive income (loss) during the six months ended June 30, 2018 and 2017:
 
Balance
 December 31,
 2017
 
OCI before
 Reclassification
 
Amounts
 Reclassified
 from AOCI
 
Balance
June 30,
2018
Employee benefit costs, net
$
(28,169
)
 
$
—

 
$
—

 
$
(28,169
)
 
Balance
 December 31,
 2016
 
OCI before
 Reclassification
 
Amounts
 Reclassified
 from AOCI
 
Balance
June 30,
2017
Employee benefit costs, net
$
28,220

 
$
—

 
$
—

 
$
28,220


F-189
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

(5) Earnings Per Share
The number of shares used to calculate basic earnings per common share is based on the weighted average number of the Company’s outstanding common shares during the respective period. The number of shares used to calculate diluted earnings per common share is based on the number of common shares used to calculate basic earnings per share plus the dilutive effect of stock options and restricted stock units held by the Company’s employees and directors during the period. In periods of net loss, the number of shares used to calculate diluted earnings per share is the same as basic earnings per share.
The following table presents the net income (loss) per common share for the six months ended June 30, 2018 and 2017:
 
Six Months Ended June 30, 2018
 
Six Months Ended June 30, 2017 (1)
Net income
 
 
 
Income from continuing operations
$
63,351

 
$
58,935

Income (loss) from discontinued operations
1,270

 
(35,188
)
Net income
$
64,621

 
$
23,747

 
 
 
 
Basic
 
 
 
Weighted average common shares outstanding - basic
20,131,152

 
20,117,485

 
 
 
 
Basic income (loss) per common share:
 
 
 
Income from continuing operations
$
3.15

 
$
2.93

Income (loss) from discontinued operations
0.06

 
(1.75
)
Net income
$
3.21

 
$
1.18

 
 
 
 
Diluted
 
 
 
Weighted average common shares outstanding - basic
20,131,152

 
20,117,485

Diluted effect of restricted share units
16,364

 
—

Weighted average of common shares outstanding-diluted
20,147,516

 
20,117,485

 
 
 
 
Diluted income (loss) per common share:
 
 
 
Income from continuing operations
$
3.15

 
$
2.93

Income (loss) from discontinued operations
0.06

 
(1.75
)
Net income
$
3.21

 
$
1.18

______________
(1)
On February 15, 2018, stockholders approved the Company’s proposal to exchange shares of the existing classes and series of stock for new shares at specified exchange ratios. Following stockholder approval and the effectiveness of the reclassifications, ANR has two classes of common stock with equivalent rights. The total common shares authorized equals 54,223,400 (50,000,000 Class C-1 and 4,223,400 Class C-2), with 20,131,152 (15,907,752 Class C-1 and 4,223,400 Class C-2) currently issued and outstanding. Class C-3 common shares and preferred shares were eliminated in the reclassification. There was no change in relative shareholders’ rights, rank, or value before and after the reclassification. Accordingly, comparative earnings per share has been restated.


F-190
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

(6) Inventories, net
Inventories, net consisted of the following:
 
June 30,
2018
 
December 31, 2017
Raw coal
$
15,947

 
$
17,692

Saleable coal
44,725

 
25,099

Materials, supplies and other, net
21,757

 
21,122

Total inventories, net
$
82,429

 
$
63,913

(7) Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets consisted of the following:
 
June 30,
2018
 
December 31,
 2017
Prepaid insurance
$
3,066

 
$
6,463

Prepaid workers’ compensation and state black lung
2,793

 
2,793

Prepaid freight
1,795

 
809

Prepaid taxes
448

 
12,711

Deposits and other prepaid expenses
2,018

 
2,340

Total prepaid expenses and other current assets
$
10,120

 
$
25,116

(8) Property, Plant and Equipment, Net
Property, plant and equipment, net consisted of the following:
 
June 30,
2018
 
December 31,
 2017
Plant and mining equipment
$
155,155

 
$
151,189

Owned and leased mineral rights (1)
19,092

 
20,774

Mine development
8,831

 
4,962

Land
16,573

 
17,553

Office equipment, software and other
489

 
601

Construction in progress
37,566

 
22,477

Total property, plant and equipment
237,706

 
217,556

Less accumulated depreciation, depletion, and amortization
82,695

 
73,249

Total property, plant and equipment
$
155,011

 
$
144,307

______________
(1)
Owned and leased mineral rights of $19,092 and $20,774, as of June 30, 2018 and December 31, 2017, respectively, relates to capitalized asset retirement obligation costs associated with active mining operations.


F-191
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

(9) Other Non-Current Assets
Other non-current assets consisted of the following:
 
June 30,
 2018
 
December 31,
2017
Advanced royalties
$
621

 
$
330

VA CEE tax credit
4,012

 
8,219

Notes receivable
661

 
1,699

Workers compensation receivable
24,574

 
16,796

Prepaid workers’ compensation and state black lung
26,998

 
28,336

Alternative minimum tax credit refund receivable
23,338

 
23,338

Other
4,742

 
5,803

   Total
$
84,946

 
$
84,521

(10) Accrued Expenses and Other Current Liabilities
Accrued expenses and other current liabilities consisted of the following:
 
June 30,
 2018
 
December 31,
2017
Wages and employee benefits
$
27,625

 
$
47,334

Current portion of asset retirement obligations
9,909

 
10,996

Taxes other than income taxes
43,521

 
52,581

Interest payable
23

 
68

Current portion of workers compensation and black lung
20,518

 
20,518

Fines and penalties
1,228

 
1,127

Bankruptcy liabilities
20,143

 
37,097

Contingent revenue obligation
14,466

 
—

Deferred revenue
384

 
—

Other
6,946

 
16,819

Total accrued expenses and other current liabilities
$
144,763

 
$
186,540


F-192
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

(11) Long-Term Debt
Long-term debt consisted of the following:
 
June 30,
 2018
 
December 31,
 2017
$150,000 Term Loan
$
90,740

 
$
146,250

LCC Note Payable
80,000

 
80,000

LCC Water Treatment Stipulation
13,250

 
14,000

Other
1,612

 
447

Total before debt issuance costs and debt discounts
185,602

 
240,697

Unamortized debt issuance costs and debt discount related to Term Loans
(6,958
)
 
(8,269
)
Unamortized discount on LCC Note Payable based on an imputed interest rate of 21.1%
(23,615
)
 
(28,360
)
Unamortized discount on LCC Water Treatment Stipulation based on an imputed interest rate of 21.1%
(5,045
)
 
(5,808
)
Total long-term debt
$
149,984

 
$
198,260

Less current portion
26,814

 
18,655

Long-term debt, net of current portion
$
123,170

 
$
179,605

$150,000 Term Loan
On October 18, 2017, the Company entered into a credit facility (the “New Credit Facility”) with Cantor Fitzgerald Securities as administrative agent, which included a $150,000 term loan that bears interest at a rate of LIBOR plus 700 basis points. The interest rate at June 30, 2018 was 9.37%. Interest is paid on a monthly basis at the end of each month. In connection with the New Credit Facility, $9,251 of debt issuance costs and fees were incurred, including $4,500 in the form of an original issue discount. Unamortized fees and debt discount of $6,958 remain on the Condensed Consolidated Balance Sheet at June 30, 2018.
Mandatory principal payments of $3,750 are required quarterly. The Company paid $3,750 in December of 2017 with annual scheduled payments of $15,000 due in 2018, 2019 and 2020 and the remaining principal balance due in 2021. In addition, ANR must make a prepayment of principal in an amount equal to the excess (if any) of 65% of excess cash flow for each physical quarter-end through the maturity date. The excess cash flow for the three months ended June 30, 2018 is expected to require a payment of $4,179 in September of 2018. Therefore, depending on future cash flow, the principal may be paid off earlier than scheduled.
A financial covenant was put into place along with the New Credit Facility that requires the Company to maintain at least $35,000 of liquidity at all times. The Company was in compliance with its covenants as of June 30, 2018.
During the six months ended June 30, 2018, the Company paid $55,510 of principal on the $150,000 term loan. In addition to the two mandatory quarterly principal payments totaling $7,500, funds received from the sale of receivables to Hitachi Capital America Corp. (“HCA”) under the Company’s Receivables Purchase Agreement required an additional mandatory payment of $35,288. The Receivables Purchase Agreement with HCA was entered into on May 1, 2017 and as of June 30, 2018, the Company had received $34,964, net, from the sale of certain receivables. The excess cash flow for the three months ended March 31, 2018 required a payment of $12,722 in May of 2018.
(12) 2016 Global Reclamation Agreement & 2017 Amended Reclamation Funding Agreement
2016 Global Reclamation Agreement
The Company entered into eight separate agreements that were collectively known as the Global Reclamation Agreements or GRA. The GRA consists of (1) an agreement (the "Reclamation Funding Agreement") among the Company, Contura, and the applicable regulatory authorities for each of the states where the Company holds mining assets (collectively,

F-193
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

the "Regulatory Authorities") providing for the provision and allocation among the Regulatory Authorities of certain funds by the Company and Contura to support the Company's performance of its reclamation obligations; (2) five separate agreements (collectively, the "Reclamation Settlement Agreements") among the Company, Contura and each of the Regulatory Authorities providing for the use of the funds allocated to the applicable Regulatory Authority, pursuant to the Reclamation Funding Agreement, and other matters relating to environmental reclamation in the applicable state; (3) a stipulation with the United States Environmental Protection Agency (the “Water Treatment Settlement Agreement”) regarding the Company’s water treatment obligations; and (4) a settlement agreement with the United States Army Corps of Engineers regarding the Company’s mitigation requirements.
The Reclamation Funding Agreement provided for the establishment of interest bearing segregated deposit accounts for each Regulatory Authority in which the Company operated. The applicable Regulatory Authority held a first priority security interest, perfected by "control" under the UCC in these accounts that were funded by the Company and Contura pursuant to the Reclamation Funding Agreement.
Company Contributions:
The Company was scheduled to pay $109,000 into the various Restricted Cash Reclamation Accounts.
In addition to the periodic contributions, the Company was obligated to pay 50% of positive Free Cash Flow (as defined in the GRA) post-emergence into the Restricted Cash Reclamation Accounts until reclamation is completed or the balances in the Restricted Cash Reclamation Accounts equals or exceeds 125% of the estimated total remaining cost of reclamation, mitigation and water treatment. On April 28, 2017, the Company deposited $14,501 into the Restricted Cash Accounts for reclamation pursuant to the requirements of the GRA relating to its obligation to pay 50% of positive Free Cash Flow for the first quarter of 2017. The Free Cash Flow contributions were subject to reconciliation on an annual basis.
In addition to the foregoing allocated contributions to the Restricted Cash Reclamation Accounts, any collateral returned to the Company from any surety bond issuer was to be paid into the Restricted Cash Reclamation Account of the applicable Regulatory Authority. Similarly, if the Company sold a mining asset in a state for at least $100, it was required to deposit a percentage of the proceeds into the Restricted Cash Reclamation Account of the applicable Regulatory Authority.
The amended reclamation agreement executed in 2017 for the LCC transaction terminated the free cash flow and collateral return obligations and modified the periodic contributions such that the Company is only required to make payments into LCC’s restricted cash accounts of $17,500 in 2018, 2019, 2020, and 2021, with a final payment of $10,000 in 2022.
Contura Contributions:
Contura was scheduled to pay $50,000 into the various Restricted Cash Reclamation Accounts. $8,000 was paid at emergence and another $10,000 was paid in July of 2017.
In addition to the mandatory contributions through 2020, Contura had a contingent obligation to pay up to an aggregate amount of $50,000 in annual installments into the various Restricted Cash Reclamation Accounts from 2021 through 2025.
The amended reclamation agreement executed in 2017 terminated this contingent obligation and future restricted cash payments.
The Reclamation Settlement Agreements Prior to the 2017 Amendment
Upon emerging from bankruptcy, the Company entered into Reclamation Settlement Agreements that established how the Company will utilize the funds in the Restricted Cash Reclamation Accounts to complete reclamation at its properties, in particular those with only reclamation activities to be completed (the "Reclaim-Only Sites") and replace its remaining self-bonds on those Reclaim-Only Sites by July 2026. All funds deposited into the Restricted Cash Reclamation Accounts were to be used solely to fund reclamation, mitigation and water treatment and management obligations in the applicable state. Each Regulatory Authority had the right to audit the usage of its applicable Restricted Cash Reclamation Account at any time and from time to time upon reasonable notice.

F-194
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

The Company and the applicable Regulatory Authority also entered into general and, in appropriate circumstances, site specific agreements providing a schedule of priority for reclamation, mitigation and water treatment and management. The Company could use funds contributed to the Restricted Cash Reclamation Account in the performance of its obligations to complete reclamation, mitigation and water treatment and management only within the applicable state and only in accordance with the applicable permits and any applicable initial, long term and semi-annual budgets approved by the applicable Regulatory Authority.
Upon written confirmation from any Regulatory Authority confirming the full reclamation of all permits in the state and the release of the associated bonds, any remaining funds in the Restricted Cash Reclamation Account were to be delivered to the Company.
Until the Company had fulfilled its obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with the Reclamation Settlement Agreements, it was prohibited from making any dividends or other distributions on account of any equity interests in the Company.
In addition, the sale of assets to Contura pursuant to the Plan of Reorganization (“POR”) and Contura's partial funding of the Company's reclamation obligations pursuant to the Reclamation Funding Agreement shall not cause Contura or the Company to be deemed to be owners or controllers of each other or of each other's businesses.
Pursuant to the Reclamation Settlement Agreement with West Virginia, the Company posted approximately $100,000 of new surety bonds to reduce its self-bonded liability. In addition, the Company posted $39,000 of collateral to secure its obligations on the Reclaim-Only Sites pending (a) its replacement of all self-bonds with commercial surety bonds or (b) completion of reclamation at all self-bonded sites. The Reclamation Settlement Agreement with West Virginia specified that the Company will reduce its self-bonded obligations with respect to its Reclaim-Only Sites according to the following schedule:
•
25% by December 31, 2020;
•
50% by December 31, 2023; and
•
100% by the tenth anniversary of the Effective Date.
2017 Reclamation Funding Agreement Amendment
The amended reclamation agreement was entered into by and among ANR, Inc., LCC, Contura Energy, Inc. and various federal and state agencies. The agreement documents the specific permits being transferred to LCC from ANR and acknowledges consent of the regulatory authorities to the LCC sales transaction. ANR’s periodic payments were amended and superseded to provide that no additional funding is required into the GRA accounts.

F-195
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

The following table highlights the original funding requirements, the funding that has occurred post-emergence through June 30, 2018, the amount no longer required to be funded into the GRA accounts, and the future funding into LCC’s restricted cash accounts required:
 
Mandatory Funding Required Under the 2016 POR
 
Mandatory Amounts Funded (1)
 
Funding No Longer Required by ANR based upon Amendment
 
Future Funding into LCC's Restricted Cash Accounts (2)
2016
$
5,000

 
$
5,000

 
$
—

 
$
—

2017
10,000

 
7,627

 
2,373

 
—

2018
10,000

 
—

 
10,000

 
17,500

2019
12,000

 
—

 
12,000

 
17,500

2020
12,000

 
—

 
12,000

 
17,500

2021
12,000

 
—

 
12,000

 
17,500

2022
12,000

 
—

 
12,000

 
10,000

2023
12,000

 
—

 
12,000

 
—

2024
12,000

 
—

 
12,000

 
—

2025
12,000

 
—

 
12,000

 
—

Total
$
109,000

 
$
12,627

 
$
96,373

 
$
80,000

______________
(1)
September 2017 was the last month that contributions were made into the GRA accounts associated with Kentucky, Tennessee, and West Virginia. Contributions into the GRA account of Virginia continued for the remainder of 2017 and into the second quarter of 2018 (monthly contributions totaling $34). Contributions into the GRA account of Illinois continued for the remainder of 2017 and through the first five months of 2018 (monthly contributions of $8). The contributions for Illinois ceased in June of 2018 and the contributions for Virginia will cease when the permits are officially transferred to the respective buyers of the properties. The 2018 contributions of $246 made during the six months ended June 30, 2018 for these two states are not reflected in the schedule above.
(2)
The principal portion of the $80,000 is partially reflected in short-term debt, with the remainder included in long-term debt on the Condensed Consolidated Balance Sheets at June 30, 2018 and December 31, 2017 (see Note 11).

The Water Treatment Settlement Agreement per the 2016 POR and the Amended Stipulation Regarding Water Treatment Obligations
2016 Water Treatment Settlement Agreement
The Water Treatment Settlement Agreement specified that the Company will establish and fund restricted cash accounts (“Restricted Cash Water Treatment Accounts”) for each state in which it operates. The Company was required to make contributions totaling $15,000 between 2017 and 2023.
The Company contributed $1,000 to each of the Restricted Cash Water Treatment Accounts on the Effective Date. The contributions in 2017 were divided evenly among the states. Beginning in 2018, the contributions were to be allocated based upon the percentage of water treatment costs associated with each state.
The funds in the Restricted Cash Water Treatment Accounts could be used to pay for costs associated with treating water, constructing water treatment systems, or undertaking other projects that will improve water quality discharging from the Company’s property. The Company and the applicable state agencies were also required to set a minimum balance that must be maintained in the Water Treatment Restricted Cash Account for each applicable state.
2017 Amended Water Treatment Stipulation
The amended water treatment stipulation was entered into by and among ANR, Inc., LCC, and the Environmental Protection Agency. The agreement was entered into to amend the framework and funding for the fulfillment of water treatment obligations in light of the LCC sales transaction. The amount of restricted cash that ANR had set aside in the water treatment accounts was conveyed to LCC in the sales transaction.

F-196
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

The following table highlights the original funding requirements, the funding that has occurred post-emergence through June 30, 2018, and the future funding requirements:
 
Mandatory Funding Required Under the 2016 POR
 
Mandatory Amounts Funded
 
Future Funding into Accounts of LCC (1)
2017
$
1,000

 
$
1,000

 
$
—

2018
1,500

 
750

 
750

2019
2,500

 
—

 
2,500

2020
2,500

 
—

 
2,500

2021
2,500

 
—

 
2,500

2022
2,500

 
—

 
2,500

2023
2,500

 
—

 
2,500

Total
$
15,000

 
$
1,750

 
$
13,250

______________
(1)
The principal portion of the $13,250 ($14,000 at December 31,2017) is partially reflected in short-term debt, with the remainder included in long-term debt on the Condensed Consolidated Balance Sheets at June 30, 2018 and December 31, 2017, respectively (see Note 11).

2016 Mitigation Settlement
The Mitigation Settlement Agreement required the Company to establish a restricted cash account (“Restricted Cash Mitigation Account”) which will be used to fund mitigation required by the Company’s Section 404 permits. The Company contributed $4,500 to the Restricted Cash Mitigation Account on the Effective Date and made an additional contribution of $1,500 in 2017. $5,500 of restricted cash was transferred to LCC in October of 2017 based on the amended agreement. The amended agreement requires ANR to continue to make contributions into the Restricted Cash Mitigation Account to cover obligations of the Company’s remaining Section 404 permits.
2017 Amended Permitting and Mitigation Plan Funding and Settlement Agreement
The amended Permitting and Mitigation Plan Funding and Settlement Agreement was entered into by and among ANR, Inc., LCC, Contura Energy, Inc. and the U.S. Army Corps of Engineers.
The following table highlights the original funding requirements, the funding that has occurred post-emergence, and the amended future funding requirements.
 
Funding Required Under the 2016 POR
 
Amended Agreement Adjustment
 
Funding Required per the Amendment
 
Amounts Funded Through June 30, 2018
 
Future Funding Required
2016
$
4,500

 
$
—

 
$
4,500

 
$
4,500

 
$
—

2017 - Pre Amendment
1,000

 
—

 
1,000

 
1,000

 
—

Subtotal
5,500

 
—

 
5,500

 
5,500

 
—

2017 - Post Amendment
—

 
500

 
500

 
500

 
—

2018
1,500

 
(500
)
 
1,000

 
500

 
500

2019
2,500

 
—

 
2,500

 
—

 
2,500

2020
3,000

 
—

 
3,000

 
—

 
3,000

2021
3,000

 
—

 
3,000

 
—

 
3,000

2022
2,500

 
—

 
2,500

 
—

 
2,500

Total
$
18,000

 
$
—

 
$
18,000

 
$
6,500

 
$
11,500


F-197
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

The Company is required to keep a minimum balance in the Restricted Cash Mitigation Account at all times and must receive approval of its budgets from the U.S. Army Corps of Engineers to spend funds from this account.
(13) Asset Retirement Obligations
As of June 30, 2018, the Company had recorded asset retirement obligation accruals for mine reclamation and closure costs totaling $66,543. The portion of the costs expected to be paid within a year of $9,909 as of June 30, 2018 is included in Accrued Expenses and Other Current Liabilities.
Changes in the asset retirement obligations were as follows:
 
Total
 
Continuing Operations
 
Discontinued Operations
Total asset retirement obligations at December 31, 2017
$
68,302

 
$
68,302

 
$
—

Balance of discontinued operations disposed of in the first quarter of 2018
—

 
(7,189
)
 
7,189

Accretion for the period
8,287

 
8,147

 
140

Asset sales (1)
(7,377
)
 
(103
)
 
(7,274
)
Expenditures for the period
(2,669
)
 
(2,614
)
 
(55
)
Total asset retirement obligations at June 30, 2018
66,543

 
66,543

 
—

Less current portion
9,909

 
9,909

 
—

Long-term portion
$
56,634

 
$
56,634

 
$
—

______________
(1)
Assumption of asset retirement obligations by buyer is included in gain on disposition of property, plant, and equipment in the Condensed Consolidated Statements of Operations and Cash Flows.

(14) Other Non-current Liabilities
Other non-current liabilities consisted of the following:
 
June 30,
2018
 
December 31,
 2017
Contingent revenue obligation
$
37,100

 
$
42,860

Deferred WY production taxes
—

 
4,547

Other
3,543

 
3,258

Total other non-current liabilities
$
40,643

 
$
50,665

(15) Fair Value of Financial Instruments and Fair Value Measurements
The estimated fair values of financial instruments are determined based on relevant market information. These estimates involve uncertainty and cannot be determined with precision.
The carrying amounts for cash and cash equivalents, trade accounts receivable, net, notes and other receivables, restricted cash, long-term restricted cash, prepaid expenses and other current assets, trade accounts payable, and accrued expenses and other current liabilities approximate fair value due to the short maturity of these instruments.

F-198
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

The following tables set forth by level, within the fair value hierarchy, the Company’s long-term debt at fair value as of June 30, 2018 and December 31, 2017, respectively:
 
June 30, 2018
 
Carrying Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
$150,000 term loan
$
83,782

 
$
89,790

 
$
—

 
$—
 
$
89,790

LCC note payable
56,385

 
54,405

 
—

 
—

 
54,405

LCC water stipulation
8,205

 
7,603

 
—

 
—

 
7,603

______________
(1)
Net of unamortized debt issuance costs and debt discount

 
December 31, 2017
 
Carrying Amount (1)
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
$150,000 term loan
$
137,981

 
$
142,825

 
$
—

 
$—
 
$
142,825

LCC note payable
51,640

 
49,937

 
—

 
—

 
49,937

LCC water stipulation
8,192

 
7,893

 
—

 
—

 
7,893

______________
(1)
Net of unamortized debt issuance costs and debt discount

The following tables set forth by level, within the fair value hierarchy, the Company’s financial and non-financial assets and liabilities that were accounted for at fair value on a recurring basis as of June 30, 2018 and December 31, 2017. Financial and non-financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The Company’s assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the determination of fair value for assets and liabilities and their placement within the fair value hierarchy levels. 
 
Carrying Amount
 
Total Fair
Value
 
Quoted Prices
in Active
Markets
(Level 1)
 
Significant
Other
Observable
Inputs
(Level 2)
 
Significant
Unobservable
Inputs
(Level 3)
June 30, 2018
 
 
 
 
 
 
 
 
 
Financial liabilities:
 
 
 
 
 
 
 
 
 
Contingent Revenue Obligation
$
(51,566
)
 
$
(51,566
)
 
$
—

 
$
—

 
$
(51,566
)
December 31, 2017
 
 
 
 
 
 
 
 
 
Financial liabilities:
 
 
 
 
 
 
 
 
 
Contingent Revenue Obligation
$
(42,860
)
 
$
(42,860
)
 
$
—

 
$
—

 
$
(42,860
)
The change in estimated liability is recorded on the Condensed Consolidated Statements of Operations as mark-to-market adjustment - acquisition-related obligations and as of June 30, 2018, $14,466 and $37,100 of liability is shown in Accrued Expenses and Other Current Liabilities and Other Non-current Liabilities, respectively, in the Company’s Condensed Consolidated Balance Sheets. As of December 31, 2017, $42,860 is shown in Other Non-current Liabilities in the Company’s Condensed Consolidated Balance Sheets.

F-199
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

The following methods and assumptions were used to estimate the fair values of the assets and liabilities in the tables above.
Level 3 Fair Value Measurements
Corporate Debt Securities - The fair values of the Company’s corporate debt securities are obtained from a third-party pricing service provider. The fair values provided by the pricing service provider are estimated using pricing models, where the inputs to those models are based on observable market inputs including credit spreads and broker-dealer quotes, among other inputs. The Company classifies the prices obtained from the pricing services within Level 3 of the fair value hierarchy because the underlying inputs are directly observable from active markets; however, the pricing models used entail a certain amount of subjectivity and therefore differing judgments in how the underlying inputs are modeled which could result in different estimates of fair value.
Contingent Revenue Obligation - The fair value of the contingent revenue obligation was estimated using a Black-Scholes pricing model and is marked to market at each reporting period with changes in value reflected in earnings. The inputs included in the Black-Scholes pricing model are the Company's forecasted future revenue, the stated royalty rate, the remaining periods in the obligation, and the annual risk-free interest rate based on the US Constant Maturity Treasury Curve and annualized volatility. The annualized volatility was calculated by observing volatilities for comparable companies with adjustments for the Company's size and leverage.
(16) Income Taxes
The Tax Cuts and Jobs Act (“Tax Act”)
On December 22, 2017, the Tax Act was signed into law. The Tax Act contains significant changes to corporate taxation, including (i) the reduction of the corporate tax rate from 35% to 21%, (ii) the acceleration of tax depreciation for certain business assets, (iii) the repeal of the domestic production deduction, (iv) additional limitations on the deductibility of interest expense, and (v) expanded limitations on executive compensation. Tax reform eliminated the alternative minimum tax (“AMT”) for corporations while allowing the continued use of AMT credit carryforwards and allowing future refunds of these credits. Except for the acceleration of tax depreciation for certain business assets effective in September of 2017, the changes were effective as of January 1, 2018.
The key impact of the Tax Act on the Company’s financial statements as of December 31, 2017 relates to the expected future refundable AMT credits that existed at emergence of $23,027 ($30,702 less valuation allowance of $7,675). The expected future refunds are recorded as a receivable in Other Non-current Assets on the Company’s Condensed Consolidated Balance Sheets as of June 30, 2018 and December 31, 2017.
For the six months ended June 30, 2018, the Company recorded no income tax expense or benefit on pre-tax income from continuing operations of $63,351. The zero effective tax rate is lower than the statutory rate of 21% due primarily to the benefits of percentage depletion and, since a full valuation allowance exists on deferred tax assets, including net operating losses (“NOL’s”), projected utilization of NOL’s results in a reduction of total income tax expense for the six months ended June 30, 2018.
For the six months ended June 30, 2017, the Company recorded $24,424 of income tax expense on pre-tax income from continuing operations of $83,359. The 29.3% effective tax rate is lower than the statutory rate of 35% due primarily to the benefits of percentage depletion.
At June 30, 2018 and December 31, 2017, the Company’s tax effected temporary differences and NOL’s were completely offset by valuation allowances.
(17) Employee Benefit Plans
The Company provides several types of benefits for its employees, including defined benefit pension plans, workers’ compensation and black lung benefits, defined contribution retirement savings plans, and health insurance coverage.

F-200
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

(a) Company Administered Defined Benefit Pension Plans
The Company has three qualified non-contributory defined benefit pension plans, which cover certain salaried and non-union hourly employees. Participants accrued benefits either based on certain formulas, the participant’s compensation prior to retirement, or plan specified amounts for each year of service with the Company. Benefits are frozen under these plans.
The qualified non-contributory defined benefit pension plans are collectively referred to as the “Pension Plans”.
Annual funding contributions to the Pension Plans are made as recommended by consulting actuaries based upon the ERISA funding standards. In addition, under the POR, the Company agreed to make and made a $9,000 payment in June of 2017 and another $9,000 payment in June of 2018 to the Pension Plans. Plan assets consist of equity and fixed income funds, private equity funds and a guaranteed insurance contract.
The following table details the components of net periodic benefit credit:
 
Six Months Ended June 30,
 
2018
 
2017
Interest cost
$
12,355

 
$
11,632

Expected return on plan assets
(16,867
)
 
(16,591
)
Amortization of prior service credit
(57
)
 
—

Net periodic benefit credit
$
(4,569
)
 
$
(4,959
)
The current portion of the Company’s Pension Plans liability is the amount by which the actuarial present value of benefits included in the benefit obligation payable in the next twelve months exceeds the fair value of plan assets. However, even though the plan may be underfunded, if there are sufficient plan assets to make expected benefit payments to plan participants in the succeeding twelve months, no current liability is recognized. Under this standard no current pension liability would be presented. However, the POR established a $9,000 contractual obligation to be paid within one year and the company has shown $9,000 as a current liability in the Condensed Consolidated Balance Sheets as of December 31, 2017.
The following table details the components of the net periodic benefit cost for black lung obligations:
 
Six Months Ended June 30,
 
2018
 
2017
Service cost
$
771

 
$
912

Interest cost
1,312

 
1,051

Expected return on plan assets
(33
)
 
(33
)
Net periodic expense
$
2,050

 
$
1,930

(b) Self-Insured Medical Plan
Certain subsidiaries of the Company are principally self-insured for health insurance coverage provided for all of its active employees. Estimated liabilities for health and medical claims are recorded based on the Company’s historical experience and include a component for incurred but not reported claims. During the six months ended June 30, 2018 and 2017, the Company incurred total claims expense of $18,003 and $15,862, respectively, which represented claims processed and an estimate for claims incurred but not reported.
(18) Stock-Based Compensation Awards
Restricted Stock Awards
On April 2, 2018, the Company granted a total of 223,468 restricted Class C-1 common shares to certain key employees. To date, 16,593 of the shares granted have been forfeited. 50% of the shares vest on April 2, 2019 and 50% vest on April 2,

F-201
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

2020. The Company recorded $936 of stock-based compensation expense for the six months ended June 30, 2018 related to these shares.
On May 3, 2017 the Company granted a total of 18,000 restricted Class C-3 common shares to certain executive officers, directors, and key employees. Effective with the reclassification that occurred on February 15, 2018 (see note 5), the 18,000 shares were converted to 20,111 of Class C-1 common shares.  The Company recorded $23 of stock-based compensation expense for the six months ended June 30, 2017 related to these shares.
(19) Commitments and Contingencies
(a) General
Estimated losses from loss contingencies are accrued by a charge to income when information available indicates that it is probable that an asset has been impaired, or a liability has been incurred and the amount of the loss can be reasonably estimated. If a loss contingency is not probable or reasonably estimable, disclosure of the loss contingency is made in the consolidated financial statements when it is at least reasonably possible that a loss may be incurred, and that the loss could be material.
(b) Commitments and Contingencies
Commitments
The Company leases coal mining and other equipment under long-term capital and operating leases with varying terms and leases mineral interests and surface rights from land owners under various terms and royalty rates. In addition, the Company has entered into agreements to purchase equipment, coal and for transportation of coal to the customer.
Contingencies
Extensive regulation of the impacts of mining on the environment and of maintaining workplace safety, and related litigation, has had or may have a significant effect on the Company’s costs of production and results of operations. Further regulations, legislation or litigation in these areas may also cause the Company’s sales or profitability to decline by increasing costs or by hindering the Company’s ability to continue mining at existing operations or to permit new operations.
During the normal course of business, contract-related matters arise between the Company and its customers. When a loss related to such matters is considered probable and can reasonably be estimated, the Company records a liability.
(c) Guarantees and Financial Instruments with Off-Balance Sheet Risk
In the normal course of business, the Company is a party to certain guarantees and financial instruments with off-balance sheet risk, such as bank letters of credit, performance or surety bonds, and other guarantees and indemnities related to the obligations of affiliated entities which are not reflected in the Company’s Consolidated Balance Sheet. As of June 30, 2018, the Company had outstanding surety bonds with a total face amount of $183,420 to secure various obligations and commitments and had self-bonding guarantees in the amount of $37,075. The amounts above include bonds for permits that have been sold and are in the process of being transferred to new owners.
(d) Legal Proceedings
The Company’s legal proceedings have historically ranged from cases brought by a single plaintiff to purported class actions. As a result of the Plan of Reorganization, most of the legal proceedings that have been pending against the Company will either be handled through a bankruptcy claims process or by the plaintiffs agreeing to proceed only against any insurance coverage that the Company may have. While some matters pending against the Company or its subsidiaries specify the damages claimed by the plaintiffs, many seek an unquantified amount of damages or are at very early stages of the legal process. Accordingly, the estimated aggregate range of possible loss does not represent the Company’s maximum loss exposure. The legal proceedings and governmental examinations underlying the estimated range will change from time to time, and actual results may vary significantly from the current estimate. The Company intends to defend these legal

F-202
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

proceedings vigorously, litigating or settling cases where in the Company’s judgment it would be in the best interest of shareholders to do so.
For purposes of FASB ASC Topic 450 (“ASC 450”), an event is “reasonably possible” if “the chance of the future event or events occurring is more than remote but less than likely” and an event is “remote” if “the chance of the future event or events occurring is slight.” ASC 450 requires accrual for a liability when it is (a) “probable that one or more future events will occur confirming the fact of loss” and (b) “the amount of loss can be reasonably estimated.” If a range of loss is estimated, the best estimate within the range is required to be accrued. If no amount within the range is a better estimate, the minimum amount of the range is required to be accrued.
The Company evaluates, on a quarterly basis, developments in legal proceedings and governmental examinations that could cause an increase or decrease in the amount of the accruals previously recorded. Excluding fees paid to external legal counsel, the Company recognized expense, net of expected insurance recoveries, associated with litigation-related accruals of $624 and $9,672 during the six months ended June 30, 2018 and 2017, respectively.
The Company and its subsidiaries are involved in a number of legal proceedings and governmental examinations incidental to its normal business activities. While the Company cannot predict the outcome of these proceedings, the Company does not believe that any liability arising from these matters individually or in the aggregate should have a material impact upon its Condensed Consolidated cash flows, results of operations or financial condition.
(e) Alternative Minimum Tax Credit - Future Refunds
The Company recorded an income tax benefit in 2017 of $23,027 related to future alternative minimum tax credits refunds. It is reasonably possible that a governmental agency will attempt to claim a right of offset against prepetition bankruptcy claims when the refunds are filed.
(f) Bankruptcy Case
On June 28, 2018, the Bankruptcy Court for the Eastern District of Virginia entered a final decree closing the bankruptcy case. As a result of the final decree, the Company expects to distribute a portion of the bankruptcy-related restricted cash of approximately $20,143 to the general unsecured creditors, with the residual amount to be distributed to the first lienholders, in the third quarter of 2018. The $20,143 is recorded in short-term restricted cash and Accrued expenses and other current liabilities on the Condensed Consolidated Balance Sheet at June 30, 2018.
(20) Concentration of Credit Risk and Major Customers
The Company markets its coal principally to electric utilities in the United States and domestic steel producers. The Company also sells steam coal through brokers to the international market and sells metallurgical coal to a third party who then markets this coal to international steel producers. Credit is extended based on an evaluation of the customer’s financial condition and collateral is generally not required. Credit losses are provided for in the Condensed Consolidated Financial Statements and historically have been minimal. For the six months ended June 30, 2018 and 2017, the Company’s ten largest customers accounted for approximately 87% and 92% of total coal sales revenue, respectively. Sales to the Company’s largest customer accounted for approximately 47% and 43% of total coal sales revenue for the six months ended June 30, 2018 and 2017, respectively. Steam coal accounted for approximately 45% and 46% of the Company’s coal sales volume for the six months ended June 30, 2018 and 2017, respectively. Metallurgical coal accounted for approximately 55% and 54% of the Company’s coal sales volume for the six months ended June 30, 2018 and 2017, respectively. Additionally, one of the Company’s customers had an outstanding balance of approximately 28% and 32% of the total accounts receivable balance as of June 30, 2018 and December 31, 2017, respectively.
(21) Definitive Merger Agreement
On April 29, 2018, Contura Energy, Inc. (“Contura”), along with ANR and Alpha Natural Resources Holdings, Inc. (“Holdings”), entered into a definitive merger agreement providing for an all stock transaction. The transaction, which has been unanimously approved by the boards of directors of all parties, is expected to close in 2018, subject to ANR and Holdings (the “Alpha Companies”) shareholder approval and the satisfaction of other customary conditions.

F-203
ANR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(Amounts in thousands, except for share and per share data)

As a result of the proposed merger and subject to the terms and conditions of the merger agreement, each outstanding share of Class C-1 common stock of ANR and each outstanding share of common stock of Holdings will be converted into the right to receive 0.4071 shares of Contura’s common stock, representing approximately 46.5% ownership in the merged entity based on current stock prices and capital structures. Each outstanding share of Class C-2 common stock of ANR (held exclusively by Holdings) will be canceled.
ANR is required to pay Contura a termination fee of $19,000 under certain circumstances and is also required to reimburse Contura for fees and expenses incurred in connection with the transaction contemplated by the merger agreement if the merger agreement is terminated because shareholder approval is not obtained at the Holdings and ANR special meetings. This reimbursement is limited to $9,000, which would be credited against the termination fee to be paid by ANR. Contura is also required to pay ANR a termination fee of $19,000 under certain circumstances.
The completion of the transaction was subject to compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). However, Contura and the Alpha Companies received early termination of the applicable waiting period under the HSR Act on July 2, 2018.
The Company incurred expenses of $8,210 in connection with the merger for the six months ended June 30, 2018.
On July 16, 2018, Contura, along with the Alpha Companies, announced the confidential submission by Contura of a registration statement on Form S-4 with the U.S. Securities and Exchange Commission (the “SEC”) relating to the previously announced proposed merger between the companies. Contura expects to list its common stock on the New York Stock Exchange. Contura shares currently trade on the OTC market.
This initial submission is preliminary. A revised Form S-4, including a joint proxy statement for the Alpha Companies special meetings and prospectus, containing updated information will be filed and available on the SEC’s website prior to any vote by the Alpha Companies stockholders on the proposed transaction.
(22) Subsequent Events
The Company’s subsequent events have been evaluated through August 16, 2018, the date at which the Condensed Consolidated Financial Statements were available to be issued. No subsequent events have been identified.


F-204

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION OF CONTURA AND ALPHA
Contura and Alpha entered into the merger agreement (the “merger”) on April 29, 2018. Pursuant to the terms of the merger, MergerSub1, a wholly-owned subsidiary of Contura will merge with and into Holdings, and MergerSub2, a wholly-owned subsidiary of MergerSub1, will merge with and into Alpha. Holdings will merge with a wholly owned direct subsidiary of Contura in the Holdings merger, with Holdings continuing as the surviving corporation, and Alpha will merge with a wholly owned indirect subsidiary of Contura, with Alpha continuing as the surviving corporation. As a result of the mergers, Holdings will become a direct wholly owned subsidiary of Contura and Alpha will become a direct wholly owned subsidiary of Holdings and an indirect wholly owned subsidiary of Contura. Contura and its subsidiaries will be referred to as “the combined company” whenever references are made to it as of the effective times of the mergers or thereafter.
The following presents the unaudited pro forma condensed combined information of Contura and Alpha in accordance with requirements set forth in Article 11 of Regulation S-X, after giving effect to the merger. The unaudited pro forma condensed combined Balance Sheet gives effect to the merger as if it had been consummated on June 30, 2018, the date of the latest balance sheet included in the filing. The unaudited pro forma condensed combined Statements of Operations for the six months ended June 30, 2018 and for the year ended December 31, 2017 present the historical consolidated Statements of Operations of Contura and Alpha, giving effect to the merger as if it had been consummated on January 1, 2017, the beginning of the most recent annual period.
The historical financial information has been adjusted in the accompanying pro forma financial statements to give pro forma effect to events that are (i) directly attributable to the Transactions, (ii) factually supportable and (iii) expected to have a continuing impact on the company’s consolidated results. Additionally, the historical consolidated financial statements of Alpha have been adjusted to reflect certain reclassifications in order to conform to Contura’s financial statement presentation. Refer to the notes to the unaudited pro forma condensed combined financial information for more details.
The unaudited pro forma condensed combined financial information also gives effect to the debt financing as though it had occurred as of the same date as the merger.
The unaudited pro forma condensed combined financial information was prepared using the acquisition method of accounting in accordance with Regulation S-X Article 11, which gives effect to the merger under ASC 805, Business Combinations, with Contura considered as the accounting acquirer and Alpha as the accounting acquiree. Accordingly, consideration paid by Contura to complete the merger will be allocated to identifiable tangible and intangible assets and liabilities of Alpha based on their estimated fair values as of the closing date of the merger.
The pro forma purchase price allocation was based on an estimate of the fair market values of the tangible and intangible assets and liabilities related to Alpha. Contura has considered multiple factors in arriving at the estimated fair market values which were based on a preliminary and limited review of the assets and liabilities related to Alpha to be transferred. Following the effective date of the merger, Contura expects to complete the preliminary purchase price allocation after considering Alpha's assets and liabilities at the level of detail necessary to finalize the required purchase price allocation. The final purchase price allocation may be different than that reflected in the pro forma purchase price allocation presented herein, and this difference may be material.
Additionally, the value of the consideration to be given by Contura to complete the merger will be determined based on the merger agreement which states that each outstanding share of Holdings common stock and each share of Class C-1 common stock will be converted into the right to receive 0.4071 fully paid and nonassessable shares of Contura common stock. All shares of Class C-2 common stock and all shares of Holdings common stock and Class C-1 common stock held by Holdings, Alpha or Contura will be canceled for no consideration in connection with the mergers. The fair value of the purchase consideration expected to be transferred is based on the estimated value of Contura’s common stock expected to be issued as consideration. Accordingly, the pro forma purchase price adjustments are preliminary and are subject to further adjustments as additional information becomes available and as additional analyses are performed.
The preliminary pro forma purchase price allocation has been made solely for the purpose of providing the unaudited pro forma condensed combined financial information presented below. Until the merger is completed, Contura and Alpha are limited in their ability to share information; thus, there currently is not sufficient information for a definitive measurement and the unaudited pro forma condensed combined financial information presented herein is preliminary. Upon completion of

F-205

the merger, a final purchase price allocation will be performed. Differences between the preliminary estimates and the final purchase price allocation and acquisition accounting will occur and these differences could have a material impact on the accompanying unaudited pro forma condensed combined financial information.
The unaudited pro forma condensed combined financial information and related notes have been developed from and should be read in conjunction with (1) the unaudited condensed consolidated financial statements of Contura and Alpha contained in this joint proxy and prospectus for the six months ended June 30, 2018 and related notes, (2) Contura’s audited consolidated and Predecessor combined financial statements for the year ended December 31, 2017 and related notes, and (3) Alpha’s audited consolidated financial statements for the year ended December 31, 2017 and related notes, all of which are contained in this joint proxy statement and prospectus. The unaudited pro forma condensed combined financial information is provided for illustrative purposes only and do not purport to represent what the actual combined results of operations or the combined financial position of Contura would have been had the merger occurred on the dates assumed, nor are they necessarily indicative of combined future results of operations or combined financial position.
Contura expects to incur significant costs associated with integrating the operations of Contura and Alpha. The unaudited pro forma condensed combined Balance Sheet as of June 30, 2018 reflects estimated costs that will be incurred to complete the merger and excludes further integration activities after the merger; however, these merger related costs are not reflected in the accompanying unaudited pro forma condensed combined Statements of Operations for the year ended December 31, 2017 and the six months ended June 30, 2018. Furthermore, the unaudited pro forma condensed combined financial information does not include any benefits that may result from realization of future cost savings from operating efficiencies or revenue synergies expected to result from the merger. In addition, the unaudited pro forma condensed combined financial information excludes adjustments related to non-recurring items and discontinued operations.

F-206


CONTURA ENERGY INC.
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
As of June 30, 2018
 
 Historical
 
 
 
 
 
 
 
 
 
June 30, 2018
 
June 30, 2018
 
June 30, 2018
 
 
 
 
 
 
 
June 30, 2018
 
Contura
 
ANR
 
Holdings
 
Reclassification Adjustments
Note 5
 
Pro Forma Adjustments
Note 6
 
Financing Transactions
Adjustments Note 7
 
Pro Forma Combined
 
(In thousands, except per share amounts)
ASSETS
 
 
 
 
 
 
 
 
 
 
 
 
 
Current assets:
 
 
 
 
 
 
 
 
 
 
 
 
 
Cash and cash equivalents
$
199,252

 
$
72,904

 
$
—

 
$
—

 
$
(31,723
)
A
—

 
$
240,433

Trade accounts receivable, net
168,310

 
63,243

 
—

 
—

 
(27,523
)
B
—

 
204,030

Notes and other receivables
—

 
26,686

 
—

 
(26,686
)
 
—

 
—

 
—

Inventories, net
74,464

 
82,429

 
—

 
—

 
13,697

C
—

 
170,590

Assets held for sale
—

 
—

 
—

 
—

 
—

 
—

 
—

Short-term restricted cash
11,680

 
79,478

 
—

 
—

 
—

 
—

 
91,158

Short-term deposits
6,619

 
—

 
—

 
—

 
—

 
—

 
6,619

Prepaid expenses and other current assets
43,054

 
10,120

 
—

 
27,991

 
(2,408
)
B
—

 
78,757

Current assets- discontinued operations
26,231

 
—

 
—

 
—

 
—

 
—

 
26,231

Total current assets
529,610

 
334,860

 
—

 
1,305

 
(47,957
)
 
—

 
817,818

Property, plant, and equipment, net
192,324

 
151,539

 
—

 
—

 
280,903

DL
—

 
624,766

Mineral reserves, net
15,481

 
3,472

 
—

 
—

 
505,789

E
—

 
524,742

Other acquired intangibles (net of accumulated amortization as of June 30, 2018)
7,149

 
—

 
—

 
255

 
(234
)
F
—

 
7,170

Acquired coal supply agreements (net of accumulated amortization as of June 30, 2018)
—

 
255

 
—

 
(255
)
 
—

 
—

 
—

Goodwill
—

 
—

 
—

 
—

 
184,844

G
—

 
184,844

Long-term restricted cash
35,240

 
237,101

 
—

 
—

 
—

 
—

 
272,341

Long-term deposits
9,238

 
—

 
—

 
—

 
—

 
—

 
9,238

Deferred income taxes
78,744

 
—

 
—

 
23,338

 
—

 
 
 
102,082

Other non-current assets
34,285

 
84,946

 
—

 
(23,338
)
 
(2,604
)
H
—

 
93,289

Non-current assets-discontinued operations
—

 
—

 
—

 
—

 
—

 
—

 
—

Total assets
$
902,071

 
$
812,173

 
$
—

 
$
1,305

 
$
920,741

 
$
—

 
$
2,636,290

 
 
 
 
 
 
 
 
 
 
 
 
 
 
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
 
 
 
 
 
 
 
 
 
 
 
 
 
Current portion of long-term debt
$
5,435

 
$
26,814

 
$
—

 
$
—

 
$
12,210

I
$
—

 
$
44,459

Trade accounts payable
74,000

 
56,059

 
—

 
—

 
(27,523
)
B
—

 
102,536


F-207


 
 Historical
 
 
 
 
 
 
 
 
 
June 30, 2018
 
June 30, 2018
 
June 30, 2018
 
 
 
 
 
 
 
June 30, 2018
 
Contura
 
ANR
 
Holdings
 
Reclassification Adjustments
Note 5
 
Pro Forma Adjustments
Note 6
 
Financing Transactions
Adjustments Note 7
 
Pro Forma Combined
 
(In thousands, except per share amounts)
Acquisition-related obligations-current
13,788

 
—

 
—

 
—

 
—

 
—

 
13,788

Liabilities held for sale
1,305

 
—

 
—

 
—

 
—

 
—

 
1,305

Accrued expenses and other current liabilities
56,615

 
144,763

 
542

 
1,305

 
45,152

J
—

 
248,377

Current liabilities-discontinued operations
26,138

 
—

 
—

 
—

 
—

 
—

 
26,138

Total current liabilities
177,281

 
227,636

 
542

 
1,305

 
29,839

 
—

 
436,603

Long-term debt
361,649

 
123,170

 
—

 
—

 
8,710

K
—

 
493,529

Workers compensation and black lung
—

 
221,814

 
—

 
45,429

 
(15,631
)
H
—

 
251,612

Pension and postretirement medical benefit obligations
—

 
199,732

 
—

 
11,729

 
—

 
—

 
211,461

Acquisition-related obligations-long term
20,852

 
—

 
—

 
—

 
—

 
—

 
20,852

Asset retirement obligations
55,313

 
56,634

 
—

 
—

 
145,547

L
—

 
257,494

Deferred income taxes
 
 
—

 
—

 
—

 
—

M
—

 
—

Other non-current liabilities
61,748

 
40,643

 
—

 
(57,158
)
 
6,008

N
—

 
51,241

Non-current liabilities-discontinued operations
82

 
—

 
—

 
—

 
—

 
—

 
82

Total liabilities
676,925

 
869,629

 
542

 
1,305

 
174,473

 
—

 
1,722,874

 
 
 
 
 
 
 
 
 
 
 
 
 
 
STOCKHOLDERS' EQUITY
Preferred stock - par value $0.01, 2.0 million authorized, none issued
—

 
—

 
—

 
—

 
—

 
—

 
—

Common Stock - par value $0.01, 20.0 million shares authorized, 10.8 million issued and 9.9 million outstanding at June 30, 2018.
108

 
201

 
43

 
—

 
(154
)
O
—

 
198

Additional paid-in capital
47,273

 
1,894

 
196

 
—

 
614,126

O
—

 
663,489

Accumulated other comprehensive income (loss)
(1,998
)
 
(28,169
)
 
—

 
—

 
28,169

O
—

 
(1,998
)
Treasury stock at cost: 0.9 million shares at June 30, 2018
(54,930
)
 
—

 
—

 
—

 
—

 
—

 
(54,930
)
Retained earnings (accumulated deficit)
234,693

 
(31,382
)
 
(781
)
 
—

 
104,127

O
—

 
306,657

Total stockholders' equity
225,146

 
(57,456
)
 
(542
)
 
—

 
746,268

 
—

 
913,416

Total liabilities and shareholders' equity
$
902,071

 
$
812,173

 
$
—

 
$
1,305

 
$
920,741

 
$
—

 
$
2,636,290


F-208


CONTURA ENERGY INC.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF OPERATIONS
For the Six Months Ended June 30, 2018
 
 Historical
 
 
 
 
 
 
 
 
 
Six Months Ended
June 30, 2018
 
 
 
 
 
 
 
Six Months Ended
June 30, 2018
 
Contura
 
ANR
 
Holdings
 
Reclassification Adjustments
Note 5
 
Pro Forma Adjustments
Note 6
 
Financing Transactions
Adjustments Note 7
 
Pro Forma Combined
 
(In thousands, except per share amounts)
Revenues:
 
 
 
 
 
 
 
 
 
 
 
 
 
Coal revenues
$
1,003,533

 
$
603,727

 
$
—

 
$
(764
)
 
$
(281,178
)
P
$
—

 
$
1,325,318

Freight and handling revenues
—

 
—

 
—

 
—

 
—

 
—

 
$
—

Other revenues
7,717

 
2,992

 
—

 
2,096

 
—

 
—

 
$
12,805

Total revenues
1,011,250

 
606,719

 
—

 
1,332

 
(281,178
)
 
—

 
1,338,123

Costs and expenses:
 
 
 
 
 
 
 
 
 
 
 
 

Cost of coal sales (exclusive of items shown separately below)
629,128

 
447,969

 
—

 
8,147

 
(281,251
)
P,Q
—

 
803,993

(Loss) on disposition of property, plant and equipment
(16,502
)
 
5,823

 
—

 
—

 
—

 
—

 
(10,679
)
Freight and handling costs
176,976

 
17,677

 
—

 
872

 
—

 
—

 
195,525

Depreciation, depletion and amortization
22,810

 
18,120

 
—

 
—

 
23,552

 R
—

 
64,482

Amortization of acquired intangibles, net
11,310

 
—

 
—

 
143

 
(143
)
 R
—

 
11,310

Amortization of acquired coal supply agreements, net
—

 
143

 
—

 
(143
)
 
—

 
—

 
—

Accretion of asset retirement obligations
—

 
8,147

 
—

 
(8,147
)
 
—

 
—

 
—

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
31,108

 
27,839

 
542

 
—

 
(9,294
)
 S
—

 
50,195

Merger related costs
3,883

 
—

 
—

 
—

 
(3,883
)
S
—

 
—

Secondary offering costs
—

 
—

 
—

 
—

 
—

 
—

 
—


F-209


 
 Historical
 
 
 
 
 
 
 
 
 
Six Months Ended
June 30, 2018
 
 
 
 
 
 
 
Six Months Ended
June 30, 2018
 
Contura
 
ANR
 
Holdings
 
Reclassification Adjustments
Note 5
 
Pro Forma Adjustments
Note 6
 
Financing Transactions
Adjustments Note 7
 
Pro Forma Combined
 
(In thousands, except per share amounts)
Mark-to-market adjustment for acquisition-related obligations
—

 
8,706

 
—

 
—

 
—

 
—

 
8,706

Gain on settlement of acquisition-related obligations
(292
)
 
—

 
—

 
—

 
—

 
—

 
(292
)
Other expenses
288

 
—

 
—

 
460

 
—

 
—

 
748

Total cost and expenses
858,709

 
534,424

 
542

 
1,332

 
(271,019
)
 
—

 
1,123,988

Income (loss) from operations
152,541

 
72,295

 
(542
)
 
—

 
(10,158
)
 
—

 
214,136

Other income (expense):
 
 
 
 
 
 
 
 
 
 
 
 

Interest expense
(17,984
)
 
(14,027
)
 
—

 
—

 
3,030

T
—

 
(28,981
)
Interest income
322

 
1,794

 
—

 
—

 
—

 
—

 
2,116

Equity loss in affiliates
(1,233
)
 
—

 
—

 
—

 
—

 
—

 
(1,233
)
Miscellaneous income (expense), net
(583
)
 
3,289

 
—

 
—

 
57

U
—

 
2,763

Total other expense, net
(19,478
)
 
(8,944
)
 
—

 
—

 
3,087

 
—

 
(25,335
)
Income from continuing operations before income taxes
133,063

 
63,351

 
(542
)
 
—

 
(7,071
)
 
—

 
188,801

Income tax (expense) benefit
(121
)
 
—

 
—

 
—

 
1,848

V
—

 
1,727

Net income from continuing operations
$
132,942

 
$
63,351

 
$
(542
)
 
$
—

 
$
(5,223
)
 
$
—

 
$
190,528

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Weighted average shares outstanding - basic
9,587,457

 
20,131,152

 
4,223,290

 
 
 
 
 
 
 
18,594,719

Weighted average shares outstanding - diluted
10,299,539

 
20,147,516

 
4,223,290

 
 
 
 
 
 
 
19,306,801

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Net earnings from continuing operations per common share:
 
 
 
 
 
 
 
 
 
 
 
 
 
Basic
$
13.87

 
$
3.15

 
$
(0.13
)
 
 
 
 
 
 
 
$
10.25

Diluted
$
12.91

 
$
3.15

 
$
(0.13
)
 
 
 
 
 
 
 
$
9.87


F-210


CONTURA ENERGY INC.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF OPERATIONS
For the Year Ended December 31, 2017
 
 Historical
 
 
 
 
 
 
 
 
 
Year Ended
December 31, 2017
 
 
 
 
 
 
 
Year Ended
December 31, 2017
 
Contura
 
ANR
 
Holdings
 
Reclassification Adjustments
Note 5
 
Pro Forma Adjustments
Note 6
 
Financing Transactions
Adjustments Note 7
 
Pro Forma Combined
 
(In thousands, except per share amounts)
Revenues:
 
 
 
 
 
 
 
 
 
 
 
 
 
Coal revenues
$
1,392,481

 
$
1,186,882

 
$
—

 
$
—

 
$
(566,576
)
P
$
—

 
$
2,012,787

Freight and handling revenues
247,402

 
38,987

 
—

 
—

 
—

 
—

 
286,389

Other revenues
10,086

 
10,469

 
—

 
—

 
—

 
—

 
20,555

Total revenues
1,649,969

 
1,236,338

 
—

 
—

 
(566,576
)
 
—

 
2,319,731

Costs and expenses:
 
 
 
 
 
 
 
 
 
 
 
 

Cost of coal sales (exclusive of items shown separately below)
1,089,829

 
941,819

 
—

 
23,337

 
(572,508
)
 P,Q
—

 
1,482,477

Loss on disposition of property, plant and equipment
—

 
604

 
—

 
(604
)
 
—

 
—

 
—

Freight and handling costs
247,402

 
38,987

 
—

 
—

 
—

 
—

 
286,389

Depreciation, depletion and amortization
34,910

 
14,710

 
—

 
—

 
67,891

R
—

 
117,511

Amortization of acquired intangibles, net
59,007

 
—

 
—

 
7,684

 
(7,684
)
R
—

 
59,007

Amortization of acquired coal supply agreements, net
—

 
7,684

 
—

 
(7,684
)
 
—

 
—

 
—

Accretion of asset retirement obligations
—

 
22,733

 
—

 
(22,733
)
 
—

 
—

 
—

Selling, general and administrative expenses (exclusive of depreciation, depletion and amortization shown separately above)
67,459

 
34,465

 
—

 
—

 
—

 
—

 
101,924

Secondary offering costs
4,491

 
—

 
—

 
—

 
—

 
—

 
4,491

Mark-to-market adjustment for acquisition-related obligations
3,221

 
15,112

 
—

 
—

 
—

 
—

 
18,333

Gain on settlement of acquisition-related obligations
(38,886
)
 
—

 
—

 
—

 
—

 
—

 
(38,886
)
Other expenses
178

 
759

 
—

 
—

 
—

 
—

 
937


F-211


 
 Historical
 
 
 
 
 
 
 
 
 
Year Ended
December 31, 2017
 
 
 
 
 
 
 
Year Ended
December 31, 2017
 
Contura
 
ANR
 
Holdings
 
Reclassification Adjustments
Note 5
 
Pro Forma Adjustments
Note 6
 
Financing Transactions
Adjustments Note 7
 
Pro Forma Combined
 
(In thousands, except per share amounts)
Total operating costs and expenses
1,467,611

 
1,076,873

 
—

 
—

 
(512,301
)
 
—

 
2,032,183

Income from operations
182,358

 
159,465

 
—

 
—

 
(54,275
)
 
—

 
287,548

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Other Income (expense):
 
 
 
 
 
 
 
 
 
 
 
 

Interest expense
(35,977
)
 
(14,504
)
 
—

 
—

 
(3,496
)
T
—

 
(53,977
)
Interest income
210

 
2,788

 
—

 
—

 
—

 
—

 
2,998

Loss on early extinguishment of debt
(38,701
)
 
(16,348
)
 
—

 
—

 
—

 
—

 
(55,049
)
Equity loss in affiliates
(3,339
)
 
—

 
—

 
—

 
—

 
—

 
(3,339
)
Bargain purchase gain
1,011

 
—

 
—

 
—

 
—

 
—

 
1,011

Miscellaneous income, net
194

 
3,373

 
—

 
—

 
153

U
—

 
3,720

Total other expense, net
(76,602
)
 
(24,691
)
 
—

 
—

 
(3,343
)
 
—

 
(104,636
)
Income from continuing operations before income taxes
105,756

 
134,774

 
—

 
—

 
(57,618
)
 
—

 
182,912

Income tax benefit (expense)
67,979

 
(17,584
)
 
—

 
—

 
22,598

V
—

 
72,993

Net income from continuing operations
$
173,735

 
$
117,190

 
$
—

 
$
—

 
$
(35,020
)
 
$
—

 
$
255,905

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Weighted average shares outstanding - basic
10,216,464

 
20,124,374

 
4,223,290

 
 
 
 
 
 
 
19,223,726

Weighted average shares outstanding - diluted
10,770,005

 
20,124,374

 
4,223,290

 
 
 
 
 
 
 
19,777,267

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Net earnings from continuing operations per common share:
 
 
 
 
 
 
 
 
 
 
 
 
 
Basic
$
17.01

 
$
5.82

 
$
—

 
 
 
 
 
 
 
$
13.31

Diluted
$
16.13

 
$
5.82

 
$
—

 
 
 
 
 
 
 
$
12.94


F-212


NOTES TO PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
1. Basis of Presentation
The unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X which gives effect to the merger involving Contura and Alpha under Accounting Standards Codification Topic 805, Business Combinations (“ASC 805”) using the acquisition method of accounting, with Contura considered the accounting acquirer of Alpha.
The unaudited pro forma condensed combined financial information is presented for illustrative purposes only and is not necessarily indicative of the financial position had the merger been consummated at June 30, 2018, the date of the latest balance sheet included in the filing, or the results of operations had the merger been consummated at January 1, 2017, the beginning of the most recent annual period. The unaudited pro forma condensed combined financial information is not necessarily indicative of the results of operations in future periods or the future financial position of the combined entities. Under the acquisition method of accounting, the assets and liabilities of Alpha will be recorded at their respective fair values on the assumed merger date. The fair value on the assumed merger date represents management’s best estimate based on available information and facts and circumstances in existence before the publication of this joint proxy statement and prospectus. The pro forma purchase price allocation reflected in the unaudited pro forma condensed combined financial information is preliminary and subject to adjustment. Adjustments may include, but are not limited to, changes in the underlying values of assets and liabilities (i) if market conditions differ from current assumptions; or (ii) if information unknown as of the completion of the merger becomes known.
The unaudited pro forma condensed combined Balance Sheet as of June 30, 2018 has been adjusted to reflect the preliminary purchase price allocation of the net assets acquired, including goodwill. The preliminary purchase price allocation of the assets and liabilities in this unaudited pro forma condensed combined financial information is based upon a purchase price of approximately $620 million.
2. Summary of Significant Accounting Policies
The accounting policies followed in preparing the unaudited pro forma condensed combined financial information are those set forth in Contura’s historical audited consolidated and predecessor combined financial statements for the year ended December 31, 2017. The unaudited pro forma condensed combined financial information reflects any adjustments, known as of the publication of this joint proxy statement and prospectus, to align Alpha’s accounting policies to Contura’s accounting policies based on review of both Contura and Alpha’s significant accounting policies and preliminary discussions with Alpha’s management. Upon completion of the merger and a more comprehensive comparison and assessment, additional differences may be identified.
3. Estimated Merger and Integration Costs
Most acquisition and restructuring costs are recognized separately from a business combination and generally will be expensed as incurred. Contura and Alpha have expensed $3.9 million and $9.3 million of transaction costs related to the merger in the Statements of Operations for the six months ended June 30, 2018, which were eliminated in the unaudited pro forma condensed combined Statements of Operations for the six months ended June 30, 2018. In addition to transaction costs already expensed in Statements of Operations for the six months ended June 30, 2018, Contura and Alpha management collectively estimate that the merger-related transaction costs will be approximately $30.4 million, which is expected to be incurred primarily in second half of the fiscal year 2018. These estimated costs are not reflected in the accompanying unaudited pro forma condensed combined Statements of Operations for the year ended December 31, 2017 or for the six months ended June 30, 2018, but are reflected in the unaudited pro forma condensed combined Balance Sheet as of June 30, 2018. In connection with the merger, the plan to integrate Contura’s and Alpha’s operations is still being developed. Contura expects to incur significant costs associated with integrating the operations of Contura and Alpha. The unaudited pro forma condensed combined financial information does not reflect the costs of any integration activities or benefits that may result from realization of future cost savings from expected operating efficiencies or synergies. Over the next several months, the specific details of these plans will continue to be refined. Contura and Alpha are currently in the process of assessing their respective businesses to determine where they may eliminate potential redundancies. Integration costs may include system conversion costs, employee retention and severance agreements, communications to customers, and others. To the extent

F-213


there are costs associated with these integration actions, the costs will be recorded based on the nature and timing of the actions.
4. Preliminary purchase price allocation
The merger agreement provides that each outstanding share of Holdings common stock and each share of Class C-1 common stock will be converted into the right to receive 0.4071 fully paid and nonassessable shares of Contura common stock. All shares of Class C-2 common stock and all shares of Holdings common stock and Class C-1 common stock held by Holdings, Alpha or Contura will be canceled for no consideration in connection with the mergers. The fair value of the purchase consideration expected to be transferred is based on the estimated value of Contura’s common stock expected to be issued as consideration.
Change in Control Payments:
Under the merger, all vested Alpha options and restricted stock units (RSUs) shall be converted automatically into such number of shares of Class C-1 common stock. Then, any shares of Class C-1 Common Stock issued to a holder of an Alpha Stock Option shall be converted into shares of Contura common stock in accordance with the merger agreement.
The fair value per share of Contura common stock was assumed for pro forma purposes to be $68.79 per share, which was Contura 15-Day volume weighted average price as of August 16, 2018, and may change significantly between the time of this filing and the closing of the merger.
The preliminary purchase price for the merger is estimated as follows:
Alpha shares of Class C-1 common stock outstanding at June 30, 2018
15,907,752

Shares of Holdings common stock outstanding at June 30, 2018
4,223,290

Alpha shares (options, RSUs) at June 30, 2018
1,994,388

Total Alpha shares at June 30, 2018
22,125,430

Exchange ratio (per Alpha share)
0.4071

Estimated total Contura shares of common stock to be issued
9,007,262

15-Day volume weighted average price as of August 16, 2018
$
68.79

Total consideration transferred:
$
619,627,568

5. Reclassifications on the Historical Presentation for the Unaudited Pro Forma Condensed Combined Balance Sheet and Unaudited Pro Forma Condensed Combined Statements of Operations
Certain financial statement line items included in Alpha’s historical presentation have been reclassified to corresponding line items included in Contura’s historical presentation for the purpose of preparing the Unaudited Pro Forma Condensed Combined Balance Sheet and Statements of Operations.
6. Pro Forma Merger Adjustments
The following pro forma adjustments have been reflected in the unaudited pro forma condensed combined financial information. All taxable adjustments were calculated using an estimated statutory rate of 26.13% for the Unaudited Pro Forma Condensed Combined Balance Sheet and 26.13% and 39.22% for the Unaudited Pro Forma Condensed Combined Statements of Operations for the six months ended June 30, 2018 and for the year ended December 31, 2017, respectively. All adjustments are based on current assumptions and valuations, which are subject to change as more information becomes available.
The Unaudited Pro Forma Condensed Combined Balance Sheet as of June 30, 2018 and the Unaudited Pro Forma Condensed Combined Statements of Operations for the six months ended June 30, 2018 and for the year ended December 31, 2017, give effect to the merger as if it had occurred on January 1, 2017. The historical consolidated financial information of

F-214


Contura and Alpha have been adjusted to give effect to pro forma events that are directly attributable to the merger and are factually supportable.
The unaudited pro forma condensed combined financial information reflects the following adjustments:
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET AS OF JUNE 30, 2018
(Dollars in thousands)
A. Adjustments to Cash and Cash Equivalents
Contura and Alpha estimate that merger costs will be approximately $13.2 million and $17.2 million respectively, which will be reflected as an expense of Contura and Alpha in the period such expenses are incurred. These costs include fees for various services necessary to complete the merger. Contura also expects to incur approximately $1.3 million related to preparation of Form S-4. These estimated costs are reflected in the unaudited pro forma condensed combined Balance Sheet as of June 30, 2018 as a reduction to cash and a decrease to retained earnings for merger-related costs and additional paid in capital for the Form S-4 related costs.
B. Adjustments to Receivables and Payables
To reflect elimination of payables and receivables between Contura and Alpha resulting from purchases and sale of coal and other transactions.
C. Adjustments to Inventories, net
To adjust Alpha’s inventory balance to reflect the estimated fair value.
D. Adjustments to Property, Plant and Equipment (“PP&E”)
To reflect the estimated fair value adjustments to Alpha’s PP&E (excluding Mineral Reserves) and the Asset Retirement Obligation (ARO) related to PP&E.
Property, Plant, and Equipment
As of June 30 2018
Elimination of historical carrying value of PP&E
$
(151,539
)
Fair value of PP&E (excluding mineral reserves)
382,704

Fair value of ARO
49,738

Total PP&E
$
280,903

E. Adjustments to Mineral Reserves
To reflect the estimated fair value adjustments to Alpha’s mineral reserves and the ARO related to those mineral reserves.
F. Adjustments to Other Acquired Intangibles
To reflect the estimated fair value of the acquired coal supply agreements, which have terms less than one year.
G. Adjustments to Goodwill
To reflect the estimated excess purchase price over the fair value of assets acquired and liabilities assumed. The goodwill from the merger is not expected to be deductible for tax purposes.
H. Adjustments to Workers’ Compensation and Black Lung
To reflect the estimated fair value adjustment of Alpha’s workers’ compensation calculated based on the actuarial cash flows.

F-215


I. Adjustments to Current portion of Long-Term Debt
To eliminate Alpha’s historical carrying value of debt, net of unamortized discount and debt issuance cost and reflect adjustments related to the estimated fair value of the current portion of long-term debt.
J. Adjustments to Accrued Expenses and Other Current Liabilities
To reflect the elimination of intercompany payables/receivables and the estimated negative fair value of the acquired coal supply agreements, current ARO balances, current portion of contingent revenue payments, and workers compensation based on actuarial cash flows.
Accrued Expenses and Other Current Liabilities
As of June 30, 2018
Elimination of intercompany payables/receivables (B)
$
(1,103
)
Negative fair value - acquired coal supply agreements (F)
47,703

Elimination of current ARO balance
(9,909
)
Fair value of current ARO
9,909

Elimination of historical carrying value of contingent revenue payments
(14,466
)
Fair value of contingent revenue payments
13,847

Elimination of unamortized historical fair value adjustment to workers compensation balance
(12,109
)
Fair value adjustment to workers compensation balance
11,280

Total Accrued Expenses and Other Current Liabilities
$
45,152

K. Adjustments to Debt
To eliminate Alpha’s historical carrying value of debt, net of unamortized discount and debt issuance cost and record the estimated fair value of the non-current portion of long-term debt.
L. Adjustments to Asset Retirement Obligation
To reflect the estimated fair value of Alpha’s ARO, based on estimated discount rates as of June 30, 2018. The increase in the asset retirement obligation is due to the decrease in the discount rate used in the pro forma financial information compared to the discount rate used in Alpha’s historical financial statements.
M. Adjustments to Deferred Taxes
To reflect the estimated impact of pro forma adjustments to deferred tax balances. This adjustment reflects the elimination of Contura’s deferred tax asset valuation allowance to the extent of the deferred tax liability expected to be recognized related to the merger, with a corresponding credit to retained earnings. The acquisition of Alpha results in the recognition of deferred tax liabilities of approximately $102 million related primarily to the amortizable step-up in fair value of the PP&E and mineral rights.  Assuming Alpha will be included in Contura’s consolidated tax return following the acquisition, Contura has determined that the deferred tax liabilities related to the merger provide sufficient future taxable income to realize existing Contura deferred tax assets of $102 million. However, the income tax benefit of $102 million related to the reduction in Contura’s valuation allowance is not reflected in the Unaudited Pro Forma Condensed Combined Statements of Operations for the six months ended June 30, 2018 or for the year ended December 31, 2017 because it will not have a continuing impact.


F-216


N. Adjustments to Other Non-Current Liabilities
To eliminate Alpha’s historical carrying value of contingent revenue payments and reflect the estimated fair value of contingent revenue payments.
O. Adjustments to Stockholders’ Equity
To reflect the elimination of Alpha’s historical Stockholders’ Equity and issuance of Contura common stock as noted within the merger agreement, as well as estimated merger costs, Form S-4 preparation costs, and elimination of a portion of Contura’s deferred tax asset valuation allowance.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 2018 AND THE YEAR ENDED DECEMBER 31, 2017
(Dollars in thousands)
P. Adjustments to Coal Revenues and Cost of Coal Sales
To reflect the elimination of coal revenues related to intercompany sale of coal between Alpha and Contura.
Q. Adjustments to Cost of Coal Sales
Adjustments related Alpha’s workers compensation and ARO accretion expense as a result of the change in the estimated basis of the ARO.
Cost of Coal Sales
Six months ended June 30, 2018
 
Year ended December 31, 2017
Elimination of intercompany sale and purchase of coal
$
(281,178
)
 
$
(566,576
)
Elimination of workers compensation premium amortization
623

 
1,552

Adjustment to workers compensation expense
386

 
773

Elimination of historical ARO accretion expense
(8,146
)
 
(22,382
)
New ARO accretion expense
7,063

 
14,127

Total Cost of Coal Sales
$
(281,252
)
 
$
(572,506
)
R. Adjustments to Depreciation, Depletion and Amortization
To reflect Alpha’s depreciation and depletion expense as a result of the change in basis of the PP&E, mineral reserves, and ARO. PP&E (excluding mineral reserves) is being depreciated over the estimated remaining useful lives, ranging from three to ten years. Mineral reserves are depleted using a calculated mineral reserve value per ton and total production. Adjustments also reflect elimination of historical amortization expense for acquired coal supply agreement intangibles.
Depreciation, Depletion and Amortization (DD&A)
Six months ended June 30, 2018
 
Year ended December 31, 2017
Elimination of historical DD&A
$
(18,120
)
 
$
(14,710
)
New PP&E (excluding mineral reserves) depreciation
25,959

 
53,392

New mineral reserves depletion
7,279

 
12,342

New ARO depreciation
8,434

 
16,867

Total DD&A
$
23,552

 
$
67,891


F-217


S. Adjustments to Selling, General and Administrative Expenses
To reflect the elimination of nonrecurring transaction costs incurred during the six month period ended June 30, 2018 that are directly related to the merger.
T. Adjustments to Interest Expense
To reflect adjustments related to the accretion of Alpha’s LCC Promissory Note and Water Treatment Obligation.
U. Adjustments to Miscellaneous Income
Adjustments related to Alpha’s pension plan and black lung income (expense) based on calculated actuarial rates and assumptions.
V. Adjustments to Provision for Income Taxes
Adjustment to the income tax provision based on the estimated statutory tax rate of 26.13% for six months ended June 30, 2018 and 39.22% for year ended December 31, 2017. Income tax benefit related to the reduction of Contura’s deferred tax asset’s valuation allowance is not included in the Unaudited Pro Forma Condensed Combined Statements of Operations for the six months ended June 30, 2018 or for the year ended December 31, 2017.
7. Financing Related to the Merger
The combined company expects to incur indebtedness of up to approximately $___ to refinance existing indebtedness of Contura and Alpha and to pay related fees and expenses. Consummation of the merger is not conditioned on Contura’s ability to obtain financing.

F-218


PRO FORMA EARNINGS PER SHARE (EPS) FOR THE SIX MONTHS ENDED JUNE 30, 2018 AND THE YEAR ENDED DECEMBER 31, 2017
Basic earnings per share from continuing operations available to common stockholders are based on the weighted average number of common shares outstanding - basic during the period. Diluted earnings per share from continuing operations is calculated using the treasury stock method. The pro forma basic earnings from continuing operations per share of the combined company is computed by dividing the pro forma income by the pro forma weighted average number of shares outstanding - basic. The pro forma diluted earnings from continuing operations per share of the combined company is computed by dividing the pro forma income by the pro forma weighted average number of shares outstanding - diluted. The weighted average number of shares outstanding - basic is the total of Contura’s outstanding weighted average shares - basic and the common stock issued as consideration for the merger. The weighted average number of shares outstanding - diluted is the total of Contura’s outstanding weighted average shares - diluted and the common stock issued as consideration for the merger.
 
Six Months Ended June 30, 2018
 
Year Ended December 31, 2017
Pro forma weighted average shares (basic)
 
 
 
Historical Contura weighted average shares outstanding - basic
9,587,457

 
10,216,464

Common stock issued as consideration for the merger
9,007,262

 
9,007,262

Pro forma weighted average shares (basic)
18,594,719

 
19,223,726

 
 
 
 
Pro forma weighted average shares (diluted)
 
 
 
Historical Contura weighted average shares outstanding - diluted
10,299,539

 
10,770,005

Common stock issued as consideration for the merger
9,007,262

 
9,007,262

Pro forma weighted average shares (diluted)
19,306,801

 
19,777,267

 
 
 
 
Pro forma basic earnings per share from continuing operations
 
 
 
Net income from continuing operations
$
190,527,613

 
$
255,904,139

Weighted average shares outstanding
18,594,719

 
19,223,726

Pro forma basic earnings per share from continuing operations
$
10.25

 
$
13.31

 
 
 
 
Pro forma diluted earnings per share from continuing operations
 
 
 
Net income from continuing operations
$
190,527,613

 
$
255,904,139

Weighted average shares outstanding
19,306,801

 
19,777,267

Pro forma diluted earnings per share from continuing operations
$
9.87

 
$
12.94



F-219

ANNEX A








AGREEMENT AND PLAN OF MERGER
BETWEEN
CONTURA ENERGY, INC.,
ALPHA NATURAL RESOURCES HOLDINGS, INC.,
ANR, INC.,
PRIME ACQUISITION I, INC.,
AND
PRIME ACQUISITION II, INC.
Dated as of April 29, 2018


A-1


TABLE OF CONTENTS
_________________________
 
 
PAGE
ARTICLE 1
 
THE MERGER
 
 
 
 
Section 1.01.
The Mergers; Effects of the Mergers
9
Section 1.02.
Consummation of the Mergers
9
Section 1.03.
Certificate of Incorporation; Bylaws
10
Section 1.04.
Directors and Officers
10
Section 1.05.
Conversion of Shares
12
Section 1.06.
Fractional Shares
13
Section 1.07.
Appraisal Rights
13
Section 1.08.
Subsequent Actions
14
 
 
 
ARTICLE 2
 
EXCHANGE OF SHARES AND CERTIFICATES, EQUITY AWARDS
 
 
 
 
Section 2.01.
Exchange of Shares and Certificates; Procedures
14
Section 2.02.
Closing of Transfer Books
17
Section 2.03.
Treatment of ANR Stock Options
17
Section 2.04.
Adjustments
18
 
 
 
ARTICLE 3
 
REPRESENTATIONS AND WARRANTIES OF THE ALPHA PARTIES
 
 
 
 
Section 3.01.
Organization and Qualification
19
Section 3.02.
Capitalization
20
Section 3.03.
Authority for this Agreement; Board Action
22
Section 3.04.
Consents and Approvals; No Violation
24
Section 3.05.
Financial Statements
25
Section 3.06.
Absence of Certain Changes
26
Section 3.07.
Information Supplied; Joint Proxy Statement
26
Section 3.08.
Employee Benefits Matters
26
Section 3.09.
Employees
28
Section 3.10.
Litigation
30
Section 3.11.
Tax Matters
30
Section 3.12.
Compliance with Law
32
Section 3.13.
Permits; Surety Bonds
32
Section 3.14.
Environmental Matters
34
Section 3.15.
Intellectual Property
36
Section 3.16.
Real Property; Personal Property
37
Section 3.17.
Material Contracts
40
Section 3.18.
Insurance
42

A-2


Section 3.19.
Suppliers and Customers
43
Section 3.20.
Questionable Payments
43
Section 3.21.
Interested Party Agreements
43
Section 3.22.
Required Vote of Stockholders
43
Section 3.23.
Takeover Laws, Etc
44
Section 3.24.
Opinion of Financial Advisor
44
Section 3.25.
Brokers; Certain Fees
44
Section 3.26.
No Other Representations; Disclaimer
45
 
 
 
ARTICLE 4
 
REPRESENTATIONS AND WARRANTIES OF CONTURA
 
 
 
 
Section 4.01.
Organization and Qualification
46
Section 4.02.
Capitalization
46
Section 4.03.
Authority for this Agreement; Board Action
48
Section 4.04.
Consents and Approvals; No Violation
49
Section 4.05.
Reports; Financial Statements
50
Section 4.06.
Absence of Certain Changes
51
Section 4.07.
Information Supplied; Joint Proxy Statement
51
Section 4.08.
Employee Benefits Matters
51
Section 4.09.
Employees
53
Section 4.10.
Litigation
54
Section 4.11.
Tax Matters
55
Section 4.12.
Compliance with Law
56
Section 4.13.
Permits; Surety Bonds
56
Section 4.14.
Environmental Matters
58
Section 4.15.
Intellectual Property
59
Section 4.16.
Real Property; Personal Property
59
Section 4.17.
Material Contracts
62
Section 4.18.
Insurance
64
Section 4.19.
Suppliers and Customers
65
Section 4.20.
Questionable Payments
65
Section 4.21.
Interested Party Transactions
65
Section 4.22.
Required Vote of Contura Stockholders
65
Section 4.23.
Opinion of Financial Advisor
65
Section 4.24.
Brokers; Certain Fees
66
Section 4.25.
No Other Representations; Disclaimer
66
 
 
 
ARTICLE 5
 
COVENANTS
 
 
 
 
Section 5.01.
Interim Undertakings of the Alpha Parties
66
Section 5.02.
Interim Undertakings of Contura
71
Section 5.03.
Alpha No Solicitation
74

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Section 5.04.
Preparation of SEC Documents; Listing
78
Section 5.05.
Stockholder Approvals
79
Section 5.06.
Access to Information
81
Section 5.07.
Commercially Reasonable Efforts; Consents and Governmental Approvals
82
Section 5.08.
Indemnification and Insurance
84
Section 5.09.
Employee Matters
86
Section 5.10.
Takeover Laws
87
Section 5.11.
Notification of Certain Matters
87
Section 5.12.
Financing Assistance
88
Section 5.13.
Press Releases
89
Section 5.14.
Stockholder Litigation
89
Section 5.15.
No Control of Other Party’s Business
90
Section 5.16.
Section 280G Matters
90
Section 5.17.
Tax Matters
90
 
 
 
ARTICLE 6
 
CONDITIONS TO CONSUMMATION OF THE MERGER
 
 
 
 
Section 6.01.
Conditions to Each Party’s Obligation to Effect the Mergers
95
Section 6.02.
Conditions to Obligations of Contura
96
Section 6.03.
Conditions to Obligations of the Alpha Parties
97
 
 
 
ARTICLE 7
 
TERMINATION; AMENDMENT; WAIVER
 
 
 
 
Section 7.01.
Termination
98
Section 7.02.
Effect of Termination
100
Section 7.03.
Fees and Expenses
100
Section 7.04.
Amendment
102
Section 7.05.
Extension; Waiver; Remedies
102
 
 
 
ARTICLE 8
 
MISCELLANEOUS
 
 
 
 
Section 8.01.
Representations and Warranties
103
Section 8.02.
Entire Agreement; Assignment
103
Section 8.03.
Jurisdiction; Venue
103
Section 8.04.
Validity; Specific Performance
103
Section 8.05.
Notices
104
Section 8.06.
Governing Law
105
Section 8.07.
Descriptive Headings
105
Section 8.08.
Parties in Interest
105
Section 8.09.
Interpretation
106
Section 8.10.
Counterparts
106
Section 8.11.
Certain Definitions
106

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Glossary of Defined Terms
Defined Term
 
Section
2017 Equity Plan
 
3.02(c)
Affiliate
 
8.11
Agreement
 
Preamble
Alpha Acquisition Proposal
 
5.03(h)(i)
Alpha Board Recommendations
 
3.03(d)(iv)
Alpha Cap Ex Budget
 
5.01(p)(i)
Alpha Capital Stock
 
3.02(b)(ii)
Alpha Director
 
1.04(c)
Alpha Director Designee
 
1.04(a)
Alpha Disclosure Schedule
 
Article 3
Alpha Environmental Permits
 
3.14
Alpha Improvements
 
3.16(c)(iv)
Alpha Intellectual Property
 
3.15(a)
Alpha Interested Party Agreement
 
3.21
Alpha Leased Real Property
 
3.16(a)(ii)
Alpha Lease
 
3.16(a)(ii)
Alpha Material Adverse Effect
 
8.11
Alpha Material Contract
 
3.17(a)(xiv)
Alpha New Acquisition
 
5.01(c)(ii)
Alpha New Acquisitions
 
5.01(c)(ii)
Alpha Notice Period
 
5.03(d)(A)
Alpha Owned Intellectual Property
 
3.15(b)(i)
Alpha Owned Real Property
 
3.16(a)(i)
Alpha Parties
 
Preamble
Alpha Party Shareholder
 
5.17(d)(ii)
Alpha Permit Applications
 
3.13(c)(i)
Alpha Permits
 
3.13(a)(i)
Alpha Real Property
 
3.16(a)(iii)
Alpha Securities
 
3.02(d)(iii)
Alpha Service Provider
 
3.08(h)
Alpha Special Meetings
 
5.05(a)
Alpha Stockholder Approvals
 
3.22(b)
Alpha Subsidiary Securities
 
3.02(e)(iii)
Alpha Superior Proposal
 
5.03(h)(ii)
Alpha Surety Bonds
 
3.13(d)
ANR
 
Preamble
ANR Board
 
3.03(c)
ANR Board Recommendation
 
3.03(d)(iv)
ANR Bylaws
 
3.01(b)
ANR Certificate of Incorporation
 
3.01(b)

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Defined Term
 
Section
ANR Certificate of Merger
 
1.02(b)
ANR Financial Advisor
 
3.24
ANR Merger
 
1.01
ANR Merger Consideration
 
1.05(b)(iii)
ANR Merger Surviving Corporation
 
1.01
ANR Plan
 
8.11
ANR RSU
 
2.03(b)
ANR Stockholder Approvals
 
3.22(b)
ANR Stock Option
 
2.03
Antitrust Law
 
5.07(a)
Appraisal Shares
 
1.07
beneficial ownership
 
8.11
Book-Entry Shares
 
2.01(b)(ii)
Business Day
 
8.11
Capitalization Date
 
3.02(a)
Certificates
 
2.01(b)(i)
Change of Alpha Board Recommendation
 
5.03(a)(iii)
Class C-1 Common Stock
 
3.02(b)(i)
Class C-2 Common Stock
 
3.02(b)(ii)
Closing
 
1.02(a)
Closing Date
 
1.02(a)
Code
 
Recitals
Computer Software
 
3.15(e)
Confidentiality Agreement
 
8.11
Contract
 
3.04(a)(iii)
Controlled Group Liability
 
8.11
Contura
 
Preamble
Contura Board
 
Recitals
Contura Bylaws
 
4.01(b)
Contura Cap Ex Budget
 
5.02(o)(i)
Contura Certificate of Incorporation
 
4.01(b)
Contura Charter Amendment
 
Recitals
Contura Common Stock
 
Recitals
Contura Disclosure Schedule
 
Article 4
Contura Environmental Permits
 
4.14
Contura Financial Advisor
 
4.23
Contura Improvements
 
4.16(c)(iv)
Contura Intellectual Property
 
4.15(a)
Contura Interested Party Agreement
 
4.21(iii)
Contura Lease
 
4.16(a)(ii)
Contura Leased Real Property
 
4.16(a)(ii)
Contura Material Adverse Effect
 
8.11

A-6


Defined Term
 
Section
Contura Material Contract
 
4.17(a)(x)
Contura New Acquisition
 
5.02(c)(ii)
Contura New Acquisitions
 
5.02(c)(ii)
Contura Owned Intellectual Property
 
4.15(b)(i)
Contura Owned Real Property
 
4.16(a)(i)
Contura Parties
 
4.03(a)
Contura Permit Applications
 
4.13(c)(i)
Contura Permits
 
4.13(a)(i)
Contura Plan
 
8.11
Contura Preferred Stock
 
4.02(a)(ii)
Contura Real Property
 
4.16(a)(iii)
Contura RSU
 
2.03(b)
Contura Sale Transaction
 
5.07(b)
Contura Securities
 
4.02(c)(iii)
Contura Service Provider
 
4.08(h)
Contura Stock Option
 
4.02(b)
Contura Stockholder Approval
 
4.22
Contura Subsidiary Securities
 
4.02(d)(iii)
Contura Surety Bonds
 
4.13(d)
Copyrights
 
3.15(e)
Current Employees
 
5.09
DGCL
 
1.01
Effective Time
 
1.02(b)
Environment
 
3.14(i)(i)
Environmental Claim
 
3.14(i)(ii)
Environmental Law
 
3.14(i)(iii)
ERISA
 
3.08(b)(ii)
ERISA Affiliate
 
8.11
Exchange Act
 
3.04(b)(ii)
Exchange Agent
 
2.01(a)
Exchange Fund
 
2.01(a)
Exchange Ratio
 
8.11
Excluded Intervening Event
 
8.11
Expense Reimbursement
 
7.03(d)
First Effective Time
 
1.02(b)
Form S-4
 
3.07(i)
Governmental Entity
 
3.04(b)
Hazardous Materials
 
3.14(i)(iv)
HSR Act
 
3.04(b)(i)
Holdings
 
Preamble
Holdings Board
 
3.03(a)
Holdings Board Recommendation
 
3.03(b)(iv)

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Defined Term
 
Section
Holdings Bylaws
 
3.01(b)
Holdings Certificate of Incorporation
 
3.01(b)
Holdings Certificate of Merger
 
1.02(b)
Holdings Common Stock
 
3.02(a)
Holdings Merger
 
1.01
Holdings Merger Consideration
 
1.05(a)(iii)
Holdings Merger Surviving Corporation
 
1.01
Holdings Preferred Stock
 
3.02(a)
Holdings Series A Preferred Stock
 
3.02(a)
Holdings Series B Preferred Stock
 
3.02(a)
Holdings Stockholder Approval
 
3.22(a)
Indebtedness
 
8.11
Indemnified Parties
 
5.08(b)
Indemnified Party
 
5.08(b)
Initial Alpha Director Designees
 
1.04(a)
Intellectual Property Rights
 
3.15(a)
Joint Proxy Statement
 
3.07(ii)
KESP
 
5.09(c)
knowledge
 
8.11
Law
 
3.04(a)(ii)
Lien
 
8.11
Materially Burdensome Conditions
 
5.07(a)
Merger Consideration
 
1.05(b)(iii)
MergerSub 1
 
Preamble
MergerSub 2
 
Preamble
New Option
 
2.03
NYSE
 
8.11
Outside Date
 
8.11
Permit
 
8.11
Permitted Liens
 
8.11
Person
 
8.11
Proceeding
 
3.10(a)
Release
 
3.14(i)(v)
Representatives
 
8.11
Required Nomination Period
 
1.04(b)
Reverse Termination Fee
 
7.03(g)
SEC
 
3.04(b)(ii)
Second Effective Time
 
1.02(b)
Secretary of State
 
1.02(b)
Section 262
 
1.07
Securities Act
 
3.07(i)
Subsidiary
 
8.11

A-8


Defined Term
 
Section
Surety Bonds
 
3.13(d)
Surviving Corporations
 
1.01
Takeover Laws
 
3.23
Tax
 
3.11(l)
Tax Certificate
 
5.17(d)(vi)
Taxing Authority
 
3.11(l)
Tax Return
 
3.11(l)
Termination Fee
 
7.03(d)
Treasury Regulations
 
8.11
WARN
 
3.09(d)


A-9

AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of April 29, 2018, by and between ANR, Inc., a Delaware corporation (“ ANR ”), Alpha Natural Resources Holdings, Inc., a Delaware corporation (“ Holdings ”, and together with ANR, the “ Alpha Parties ”), Contura Energy, Inc., a Delaware corporation (“ Contura ”), Prime Acquisition I, Inc., a Delaware corporation and wholly owned Subsidiary of Contura (“ MergerSub 1 ”), and Prime Acquisition II, Inc., a Delaware corporation and wholly owned Subsidiary of MergerSub 1 (“ MergerSub 2 ”).
RECITALS
WHEREAS, the respective Boards of Directors of each of Holdings, ANR, Contura, MergerSub 1 and MergerSub 2 have approved this Agreement and determined that the terms of this Agreement, including the consummation of the Mergers upon the terms and subject to the conditions set forth herein, are in the best interests of Holdings, ANR, Contura, MergerSub 1 or MergerSub 2, respectively, and their respective stockholders;
WHEREAS, the respective Boards of Directors of each of Holdings, ANR, MergerSub 1 and MergerSub 2 have declared the advisability of this Agreement, recommended adoption of this Agreement by their respective stockholders and directed that this Agreement be submitted to their respective stockholders for adoption;
WHEREAS, after the Holdings Merger, Holdings will be a wholly owned Subsidiary of Contura, and, after the ANR Merger, ANR will be a wholly owned Subsidiary of Holdings;
WHEREAS, the Board of Directors of Contura (the “ Contura Board ”) has resolved to recommend approval by the stockholders of Contura of the amendment of Contura’s certificate of incorporation in the form attached hereto as Exhibit A to, among other things, increase the number of authorized shares of common stock, par value $0.01 of Contura (“ Contura Common Stock ”), in connection with the transactions contemplated herein (the “ Contura Charter Amendment ”);
WHEREAS, promptly following the execution and delivery of this Agreement, the beneficial owners of a majority of the outstanding shares of Contura Common Stock shall execute and deliver a written consent approving the Contura Charter Amendment in the form attached hereto as Exhibit B , and the Contura Charter Amendment will become effective immediately prior to the First Effective Time;
WHEREAS, for United States federal income tax purposes, it is intended that each Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and this Agreement is intended to be and is adopted as a “plan of reorganization” for purposes of Sections 354 and 361 of the Code; and
WHEREAS, the parties hereto desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
THE MERGERS
Section 1.01.     The Mergers; Effects of the Mergers . Upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”), (a) at the First Effective Time, MergerSub 1 shall be merged with and into Holdings (the “ Holdings Merger ”) and as a result the separate corporate existence of MergerSub 1 shall cease and Holdings shall continue as the surviving corporation of the Holdings Merger (the “ Holdings Merger Surviving Corporation ”) and (b) at the Second Effective Time, MergerSub 2 shall be merged with and into ANR (the “ ANR Merger ” and together with the Holdings Merger, the “ Mergers ”) and as a result the separate corporate existence of MergerSub 2 shall cease and ANR shall continue as the surviving corporation of the ANR Merger (the “ ANR Merger Surviving Corporation ” and together with the Holdings Merger Surviving Corporation, the “ Surviving Corporations ”). The Mergers shall have the effects set forth herein and in the applicable provisions of the DGCL. Without limiting the generality of the foregoing and subject thereto, (i) at the First Effective Time, all the property, rights, privileges, immunities, powers and franchises of Holdings and MergerSub 1 shall vest in the Holdings Merger



Surviving Corporation and all debts, liabilities and duties of Holdings and MergerSub 1 shall become the debts, liabilities and duties of the Holdings Merger Surviving Corporation and (ii) at the Second Effective Time, all the property, rights, privileges, immunities, powers and franchises of ANR and MergerSub 2 shall vest in the ANR Merger Surviving Corporation and all debts, liabilities and duties of ANR and MergerSub 2 shall become the debts, liabilities and duties of the ANR Merger Surviving Corporation.
Section 1.02.     Consummation of the Mergers . (a) Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated hereby (the “ Closing, ” and the date on which the Closing occurs, the “ Closing Date ”) will take place at 10:00 a.m., New York time, as promptly as practicable, but in no event later than the fourth Business Day, after the satisfaction or, to the extent permitted by applicable Law, waiver (by the party entitled to grant such waiver) of the conditions set forth in ‎Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions at the Closing), at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, NY 10017 or at such other place or on such other date or time as the parties hereto may mutually agree in writing.
(b)    On the Closing Date and subject to the terms and conditions hereof, Contura and the Alpha Parties shall (i) cause the Holdings Merger to be consummated by filing with the Secretary of State of the State of Delaware (the “ Secretary of State ”) a duly executed certificate of merger (the “ Holdings Certificate of Merger ”), as required by the DGCL, and shall take all such further actions as may be required by Law to make the Holdings Merger effective, and immediately thereafter (ii) cause the ANR Merger to be consummated by filing with the Secretary of State a duly executed certificate of merger (the “ ANR Certificate of Merger ”), as required by the DGCL, and shall take all such further actions as may be required by Law to make the ANR Merger effective. The date and time of the filing of the Holdings Certificate of Merger with the Secretary of State (or such later date and time as shall be agreed to by the parties hereto and is specified in the Holdings Certificate of Merger) is referred to as the “ First Effective Time ” and the date and time of the filing of the ANR Certificate of Merger with the Secretary of State (or such later date and time as shall be agreed to by the parties hereto and is specified in the ANR Certificate of Merger) is referred to as the “ Second Effective Time ”.
Section 1.03.     Certificate of Incorporation; Bylaws . (a) (i) At the First Effective Time, the certificate of incorporation of MergerSub 1 shall, by virtue of the Holdings Merger, become the certificate of incorporation of the Holdings Merger Surviving Corporation, until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the Holdings Merger Surviving Corporation shall be amended to be Alpha Natural Resources Holdings, Inc.) and (ii) at the Second Effective Time, the certificate of incorporation of MergerSub 2 shall, by virtue of the ANR Merger, become the certificate of incorporation of the ANR Merger Surviving Corporation, until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the ANR Merger Surviving Corporation shall be amended to be ANR, Inc.).
(b)    (i) At the First Effective Time, the bylaws of MergerSub 1 shall, by virtue of the Holdings Merger, become the bylaws of the Holdings Merger Surviving Corporation until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the Holdings Merger Surviving Corporation shall be amended to be Alpha Natural Resources Holdings, Inc.) and (ii) at the Second Effective Time, the bylaws of MergerSub 2 shall, by virtue of the ANR Merger, become the bylaws of the ANR Merger Surviving Corporation, until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the ANR Merger Surviving Corporation shall be amended to be ANR, Inc.).
Section 1.04.     Directors and Officers . (a) Contura shall take all such actions as are necessary, in accordance with the Contura Certificate of Incorporation and Contura Bylaws, to, as of the Second Effective Time (i) cause the size of the Contura Board to be expanded to nine directors and (ii) cause to be appointed to the Contura Board four individuals (the “ Initial Alpha Director Designees ”), filling the vacancies created by the increase of the size of the Contura Board. The Initial Alpha Director Designees shall be John E. Lushefski, Daniel J. Geiger, David J. Stetson and Harvey L. Tepner; provided that, if John E. Lushefski, Daniel J. Geiger or Harvey L. Tepner fail to meet any Independence Standard as of the Closing, such individual shall not be appointed to the Contura Board. In the event that any such Initial Alpha Director Designee, at or prior to the Closing, is unable to or has declined to serve on the Contura Board (or is not appointed to the Contura Board pursuant to the proviso to the immediately preceding sentence), Contura shall cause to be appointed to the Contura Board, as of the Second Effective Time, an individual designated by ANR (following consultation with Contura and subject to the approval of the Contura Board, which shall not be unreasonably withheld, conditioned or delayed (provided

A-11


that the Contura Board may decline to approve any individual who fails to meet any Independence Standard in its reasonable discretion exercised in good faith)) to replace such Initial Alpha Director Designee on the Contura Board. Each Initial Alpha Designee and any other individual nominated or designated to serve as an Alpha Director is referred to herein as an “ Alpha Director Designee .” Contura acknowledges and agrees that, as of the date of this Agreement and based solely upon the information provided by the Alpha Parties to Contura prior to the date hereof, it has no reason to believe that any of Messrs. Lushefski, Geiger and Tepner would fail to meet any Independence Standard as of the date of this Agreement. At or prior to the Closing, Contura shall not adopt, implement or change any Independence Standard in a manner that would adversely affect the ability of any of Messrs. Lushefski, Geiger and Tepner to satisfy any Independence Standards, except to the extent required by the listing standards of the NYSE or NASDAQ, as applicable, or the rules and regulations of the SEC.
(b)     Following the Closing and through the completion of Contura’s annual meeting of its stockholders in 2019 (the “ Required Nomination Period ”), (i) the size of the Contura Board shall not be changed (except that the size may be reduced to fewer than nine directors in the event of any resignation or other cessation of service of one or more directors) and (ii) in connection with any annual meeting of Contura’s stockholders or any special meeting of Contura’s stockholders at which directors of the Contura Board are to be elected, the Contura Board shall (x) nominate for election to the Contura Board of, (y) unanimously recommend that Contura’s stockholders vote in favor of election to the Contura Board of, and (z) solicit proxies in favor of the election of, each of the Alpha Director Designees; provided, however, that the Contura Board will not be required to take any of the actions set forth in the preceding clauses (x), (y) and (z) if it reasonably determines, upon the advice of counsel and applying the same standards and principles with respect to all directors of Contura, that the taking of such action would reasonably be expected to constitute a violation of its fiduciary duties.
(c)    Each Alpha Director Designee who is elected or appointed to the Contura Board (each such individual, an “Alpha Director”) shall serve on the Contura Board, to hold office in accordance with the Contura Certificate of Incorporation and Contura Bylaws, until the earlier of his or her resignation or until his or her successor is duly elected and qualified, as the case may be.
(d)    Each Alpha Director shall be entitled to (i) compensation for services rendered to the Contura Board (including any committee of the Contura Board) at levels, and otherwise on terms, comparable to other members of the Contura Board who are not employees of Contura or its Subsidiaries and (ii) indemnification protection and liability insurance coverage on the same terms as other members of the Contura Board.
(e)    From and after the Closing, until successors are duly elected or appointed and qualified in accordance with applicable Law, unless otherwise determined by Contura prior to the Closing, (i) the directors of MergerSub 1 at the First Effective Time shall be the directors of the Holdings Merger Surviving Corporation, (ii) the directors of MergerSub 2 at the Second Effective Time shall be the directors of the ANR Merger Surviving Corporation, (iii) the officers of MergerSub 1 at the First Effective Time shall be the officers of the Holdings Merger Surviving Corporation and (iv) the officers of MergerSub 2 at the Second Effective Time shall be the officers of the ANR Merger Surviving Corporation.
Section 1.05.     Conversion of Shares .
(a)    At the First Effective Time, by virtue of the Holdings Merger and without any action on the part of the parties hereto or on the part of any holder of any shares of capital stock or other equity interests of the parties hereto:
(i)    Each share of common stock, par value $0.01, of MergerSub 1 issued and outstanding immediately prior to the First Effective Time shall be converted into and become one validly issued, fully paid and nonasessable share of common stock, par value $0.01, of the Holdings Merger Surviving Corporation.
(ii)    Each share of Holdings Common Stock that is directly owned by Holdings, including as treasury stock, immediately prior to the First Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(iii)    Subject to ‎Section 1.06, each share of Holdings Common Stock issued and outstanding immediately prior to the First Effective Time (other than shares to be canceled in accordance with ‎Section 1.05(a)(ii) and as provided in ‎Section 1.07 with respect to Appraisal Shares) shall be converted into the right to receive that number of fully paid and nonassessable shares of Contura Common Stock equal to the Exchange Ratio (the “ Holdings Merger Consideration ”). All such shares of Holdings Common Stock, when so

A-12


converted, shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder thereof shall cease to have any rights with respect thereto, except the right to receive the Holdings Merger Consideration as provided herein, any dividends or other distributions payable pursuant to ‎Section 2.01(c) and cash in lieu of fractional shares payable pursuant to ‎Section 1.06.
(b)    At the Second Effective Time, by virtue of the ANR Merger and without any action on the part of the parties hereto or on the part of any holder of any shares of capital stock or other equity interests of the parties hereto:
(i)    Each share of common stock, par value $0.01, of MergerSub 2 issued and outstanding immediately prior to the Second Effective Time shall be converted into and become one validly issued, fully paid and nonasessable share of common stock, par value $0.01, of the ANR Merger Surviving Corporation.
(ii)    Each share of Class C-1 Common Stock that is directly owned by ANR, including as treasury stock, immediately prior to the Second Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(iii)     Subject to ‎Section 1.06, each share of Class C-1 Common Stock issued and outstanding immediately prior to the Second Effective Time (other than shares to be canceled in accordance with ‎Section 1.05(b)(ii) and as provided in ‎Section 1.07 with respect to Appraisal Shares) shall be converted into the right to receive that number of fully paid and nonassessable shares of Contura Common Stock equal to the Exchange Ratio (the “ ANR Merger Consideration ” and together with the Holdings Merger Consideration, the “ Merger Consideration ”). All such shares of Class C-1 Common Stock, when so converted, shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder thereof shall cease to have any rights with respect thereto, except the right to receive the ANR Merger Consideration as provided herein, any dividends or other distributions payable pursuant to ‎Section 2.01(c) and cash in lieu of fractional shares payable pursuant to ‎Section 1.06.
(iv)    Each share of Class C-2 Common Stock issued and outstanding immediately prior to the Second Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
Section 1.06.     Fractional Shares . No fraction of a share of Contura Common Stock will be issued by virtue of either of the Mergers to holders of Holdings Common Stock or Class C-1 Common Stock, but in lieu thereof each holder of Holdings Common Stock or Class C-1 Common Stock who would otherwise be entitled to a fraction of a share of Contura Common Stock (after aggregating all shares of Contura Common Stock that otherwise would be received by such holder) shall, upon surrender of such holder’s Certificates or Book-Entry Shares in accordance with ‎Section 2.01, receive from Contura (through the amounts deposited with the Exchange Agent in accordance with Section 2.01) an amount of cash (rounded to the nearest whole cent), without interest, equal to the product of: (i) the fractional share interest (after aggregating all shares of Contura Common Stock that would otherwise be received by such holder) which such holder would otherwise receive, multiplied by (ii) the Per Contura Share Price.
Section 1.07.     Appraisal Rights . Notwithstanding anything in this Agreement to the contrary, shares (the “ Appraisal Shares ”) of Holdings Common Stock or Class C-1 Common Stock issued and outstanding immediately prior to the Closing that are held by any holder who is entitled to demand and properly demands appraisal of such shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“ Section 262 ”) shall not be converted into the right to receive the Merger Consideration as provided in ‎Section 1.05, but instead such holder shall be entitled to payment of the fair value of such shares in accordance with the provisions of Section 262. At the Closing, the Appraisal Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262 or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Appraisal Shares under Section 262 shall cease and such Appraisal Shares shall be deemed to have been converted at the Closing into, and shall have become, the right to receive the Merger Consideration as provided in ‎Section 1.05. The Alpha Parties shall give prompt notice to Contura of any demands for appraisal of any shares of Holdings Common Stock or Class C-1 Common Stock, withdrawals of such demands and any other instruments served pursuant to the DGCL received by

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the Alpha Parties, and Contura shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Closing, the Alpha Parties shall not, without the prior written consent of Contura, voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do or commit to do any of the foregoing.
Section 1.08.     Subsequent Actions . If at any time after the Closing, Contura shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to continue, vest, perfect or confirm of record or otherwise a Surviving Corporation’s right, title or interest in, to or under any of the rights, properties, privileges, franchises or assets of the applicable Alpha Party as a result of, or in connection with, the Mergers, or otherwise to carry out the intent of this Agreement, the officers and directors of such Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the applicable Alpha Party all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of the applicable Alpha Party or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties, privileges, franchises or assets in such Surviving Corporation or any of its Subsidiaries or otherwise to carry out the intent of this Agreement.
ARTICLE 2
EXCHANGE OF SHARES AND CERTIFICATES, EQUITY AWARDS
Section 2.01.     Exchange of Shares and Certificates; Procedures . (a) Prior to the Closing, Contura shall engage, or shall cause to be engaged, an institution selected by Contura and reasonably acceptable to the Alpha Parties to act as exchange agent in connection with the Mergers (the “ Exchange Agent ”). Immediately prior to the Closing, Contura will deposit with the Exchange Agent, in trust for the benefit of the holders of Holdings Common Stock and Class C-1 Common Stock immediately prior to the Closing, (x) the applicable number of shares of Contura Common Stock to be issued as Merger Consideration, (y) cash in an amount sufficient to make the payments in lieu of fractional shares pursuant to ‎Section 1.06 and (z) cash in an amount sufficient to make any dividends or distributions to which holders of Holdings Common Stock or Class C-1 Common Stock may be entitled pursuant to ‎Section 2.01(c)(i). All cash and shares of Contura Common Stock deposited with the Exchange Agent shall hereinafter be referred to as the “ Exchange Fund. ” The cash included in the Exchange Fund shall be invested by the Exchange Agent in such manner as Contura shall direct; provided that (i) no such investment or losses thereon shall affect the amounts payable to former holders of Holdings Common Stock or Class C-1 Common Stock after the Closing pursuant to this ‎Article 2, and (ii) such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest or income produced by such investments will be payable to Contura. The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Sections ‎1.05 and ‎1.06 and this ‎Section 2.01. Contura shall take all actions necessary to ensure that the Exchange Fund includes at all times cash sufficient to satisfy Contura’s obligations under Section ‎1.06 and this Article 2.
(b)    As soon as reasonably practicable after the Closing and in no event later than three Business Days following the Closing, Contura shall cause the Exchange Agent to mail to each record holder, as of the Closing, of (i) a certificate or certificates which immediately prior to the Closing represented outstanding shares of Holdings Common Stock or Class C-1 Common Stock (the “ Certificates ”) or (ii) Holdings Common Stock or Class C-1 Common Stock represented by book-entry (“ Book-Entry Shares ”), a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss, theft or destruction in lieu thereof meeting the requirements of Section 2.01(d)) to the Exchange Agent or, in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal (which shall be in customary form and contain such other provisions as are reasonably satisfactory to the Alpha Parties and Contura) and instructions for use in effecting the surrender of the Certificates or, in the case of Book-Entry Shares, the surrender of such Holdings Common Stock or Class C-1 Common Stock, in exchange for (x) whole shares of Contura Common Stock to be issued as Merger Consideration, (y) cash in lieu of any fractional shares pursuant to ‎Section 1.06 and (z) any dividends or other distributions payable pursuant to ‎Section 2.01(c). Following surrender to the Exchange Agent of a Certificate or Book-Entry Share, together with such letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry Share will be entitled to receive in exchange therefor, subject to the certificate requirements and discussion below in Section 5.17, (A) that number of whole shares of Contura Common Stock (after taking into account all Certificates or Book-Entry Shares

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surrendered by such holder) to be issued as Merger Consideration to which such holder is entitled pursuant to Sections ‎1.05 (or uncertificated shares in book entry form), (B) payment by cash or check in lieu of fractional shares which such holder is entitled to receive pursuant to ‎Section 1.06, and (C) any dividends or distributions payable pursuant to ‎Section 2.01(c), and the Certificates or book entries evidencing the Book-Entry Shares so surrendered shall forthwith be canceled. No interest will be paid or accrued on any amount payable pursuant to ‎Section 1.06 or ‎Section 2.01(c) upon the surrender of the Certificates or Book-Entry Shares. If payment is to be made to a Person other than the Person in whose name the Certificate or Book-Entry Share surrendered is registered, it will be a condition of payment that the Certificate or Book-Entry Share so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or established to the satisfaction of Contura that such Tax has been paid or is not applicable. Subject to Section 1.07, from and after the Closing and until surrendered in accordance with the provisions of this ‎Section 2.01, each Certificate or Book-Entry Share shall represent for all purposes solely the right to receive, in accordance with the terms hereof, the Merger Consideration (and any amounts to be paid pursuant to ‎Section 1.06 or ‎Section 2.01(c)) upon such surrender, without any interest thereon and subject to any applicable withholding Tax pursuant to Section 5.17.
(c)    No dividends or other distributions with respect to shares of Contura Common Stock with a record date after the Closing shall be paid to the holder of any unsurrendered Certificate or Book-Entry Share with respect to the shares of Contura Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to ‎Section 1.06, until such Certificate or Book-Entry Share has been surrendered in accordance with this ‎Section 2.01. Subject to applicable Law, following surrender of any such Certificate or Book-Entry Share, there shall be paid to the record holder thereof, without interest, (i) promptly after such surrender, the number of whole shares of Contura Common Stock issuable as Merger Consideration in exchange therefor pursuant to Sections ‎1.05, together with any cash payable in lieu of a fractional share of Contura Common Stock to which such holder is entitled pursuant to ‎Section 1.06 and the amount of dividends or other distributions with a record date after the Closing theretofore paid with respect to such whole shares of Contura Common Stock and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Closing and a payment date subsequent to such surrender payable with respect to such whole shares of Contura Common Stock.
(d)    If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Contura, the posting by such Person of a bond in such reasonable amount as Contura may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate such shares of Contura Common Stock to be issued as Merger Consideration as may be required pursuant to ‎Section 2.01(b), cash for fractional shares pursuant to ‎Section 1.06 and any dividends or distributions payable at such time pursuant to ‎Section 2.01(c) with respect to the Holdings Common Stock or Class C-1 Common Stock formerly represented thereby.
(e)    Any portion of the Exchange Fund that remains unclaimed by the former holders of Holdings Common Stock and Class C-1 Common Stock for 12 months after the Closing shall be paid to Contura. Any former holder of Holdings Common Stock or Class C-1 Common Stock that has not complied with this ‎Section 2.01 prior to the end of such 12-month period shall thereafter look only to Contura (subject to abandoned property, escheat or other similar Laws) but only as a general creditor thereof for payment of its claim for the Merger Consideration, any cash in lieu of fractional shares pursuant to ‎Section 1.06 and any dividends or distributions payable pursuant to ‎Section 2.01(c), without any interest thereon. All charges and expenses of the Exchange Agent incurred in connection with the exchange of Holdings Common Stock or Class C-1 Common Stock for the Merger Consideration, other than as provided in Section 5.17, shall be borne by Contura. Contura shall not be liable to any holder or former holder of Holdings Common Stock or Class C-1 Common Stock for any monies delivered from the Exchange Fund or otherwise to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been surrendered immediately prior to the date that such unclaimed funds would otherwise become subject to any abandoned property, escheat or similar Law, any unclaimed funds payable with respect to such Certificates or Book-Entry Shares shall, to the extent permitted by applicable Law, become the property of Contura, free and clear of all claims or interest of any Person previously entitled thereto.
(f)    All shares of Contura Common Stock issued upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this ‎Article 2 and any cash paid pursuant to ‎Section 1.06 or ‎Section 2.01(c) shall be deemed to have been issued (or paid) in full satisfaction of all rights pertaining to the Holdings Common Stock or Class C-1 Common Stock previously represented by such Certificates or Book-Entry Shares.

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Section 2.02.     Closing of Transfer Books . At the Closing, the stock transfer books of the ANR Parties shall be closed, and no transfer of Holdings Common Stock or Class C-1 Common Stock that were outstanding prior to the Closing shall thereafter be made. If, after the Closing, Certificates that were outstanding prior to the Closing are presented to Contura for transfer, they shall be cancelled and exchanged as provided in this ‎Article 2.
Section 2.03.     Treatment of ANR Equity Awards .
(a)     Treatment of ANR Stock Options. Except as set forth in Section 5.01(n) of the Alpha Disclosure Schedule, immediately prior to the Second Effective Time, each compensatory option to purchase shares of Class C-1 Common Stock (each, an “ ANR Stock Option ”) that is outstanding immediately prior to the Second Effective Time, whether or not then vested, shall be converted automatically into such number of shares of Class C-1 Common Stock equal to the applicable ANR Option New Share Amount.  ANR shall issue the applicable number of shares of Class C-1 Common Stock (the “ Deliverable Option Shares ”) to each holder of an ANR Stock Option as Book-Entry Shares, which shall be subject to applicable Tax withholding.  Each holder of an ANR Stock Option for whom there is a Tax withholding obligation shall be given the opportunity to elect, which election must be made not less than one Business Day prior to the beginning of the period during which the Per ANR Share Price will be measured, to satisfy the applicable Tax withholding on the Deliverable Option Shares (i) in cash delivered by such holder or (ii) by reduction in the number of Deliverable Option Shares, with such reduction calculated based on the Per ANR Share Price (and any shares of Class C-1 Common Stock used to satisfy such holder’s Tax withholding obligation shall not be issued to such holder or converted into shares of Contura Common Stock in accordance with ‎Section 1.05(b)(iii)); provided that if no election is timely made, such holder shall be deemed to have elected to pay the withholding Tax by reduction in the number of Deliverable Option Shares pursuant to clause (ii). If an ANR Stock Option holder elects to pay the applicable withholding Tax in cash pursuant to clause (i), such holder will be required to make, at least one Business Day prior to the Second Effective Time and as a condition to the issuance to such holder of such shares of Contura Common Stock, a cash payment to ANR in an amount equal to the applicable Tax withholding amount (as calculated by ANR with the approval of Contura, which shall not be unreasonably withheld, conditioned or delayed), and such holder shall be required to make an additional payment (or receive reimbursement) promptly following the Second Effective Time to the extent the actual Tax withholding obligation is different than the cash payment made. At the Second Effective Time, any shares of Class C-1 Common Stock issued to a holder of an ANR Stock Option in accordance with this ‎Section 2.03(a) shall be converted into shares of Contura Common Stock in accordance with ‎Section 1.05(b)(iii); provided that Contura shall use commercially reasonable efforts to establish procedures that facilitate the prompt issuance of the applicable number of shares of Contura Common Stock to each individual that had held an ANR Stock Option. Prior to the Second Effective Time, the ANR Board or the compensation committee of the ANR Board, as applicable, shall adopt any resolutions and take any actions (including obtaining any applicable consents) which are reasonably necessary to effectuate the provisions of this ‎Section 2.03(a).
(b)     Treatment of ANR RSUs. At the Second Effective Time, each outstanding restricted stock unit granted under any ANR Plan (each, an “ ANR RSU ”), whether or not then vested, shall be assumed by Contura and converted automatically into a restricted stock unit award (a “ Contura RSU ”) relating to a number of shares of Contura Common Stock equal to the product of (i) the number of ANR RSUs held by the holder thereof immediately prior to the Second Effective Time, multiplied by (ii) the Exchange Ratio, with any fractional shares rounded down to the nearest whole number of shares. Each Contura RSU shall otherwise have the same terms and conditions (including as to continued vesting) as were applicable to an ANR RSU immediately prior to the Second Effective Time.
Section 2.04.     Adjustments . If at any time during the period between the date of this Agreement and the Closing, any change in the outstanding shares of capital stock, or securities convertible or exchangeable into or exercisable for shares of capital stock, of either Alpha Party or Contura shall occur as a result of any reclassification, recapitalization, stock split (including a reverse stock split) or subdivision or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, the Exchange Ratio shall be equitably adjusted, without duplication, to reflect such change; provided that nothing in this ‎Section 2.04 shall be construed to permit either Alpha Party or Contura to take any action with respect to its respective securities that is prohibited by the terms of this Agreement.
Section 2.05.     Withholding Taxes. Notwithstanding any other provision of this Agreement, Contura shall be entitled to deduct and withhold from the consideration or other amounts otherwise payable pursuant to the Mergers or this Agreement in accordance with ‎Section 5.17 and ‎Section 2.03(a), as applicable.

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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ALPHA PARTIES
Except as disclosed in the correspondingly numbered section of the disclosure letter dated the date of this Agreement and delivered by ANR to Contura with respect to this Agreement immediately prior to the execution of this Agreement (the “ Alpha Disclosure Schedule ”) (provided, however, that a matter disclosed in the Alpha Disclosure Schedule with respect to one representation or warranty shall also be deemed to be disclosed with respect to each other representation or warranty to the extent it is reasonably apparent from the text of such disclosure that such disclosure applies to or qualifies such other representation or warranty), each Alpha Party represents and warrants to Contura as follows:
Section 3.01.     Organization and Qualification . (a) Each Alpha Party is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, with all requisite corporate power and authority to own its properties and conduct its business as currently conducted. Each Subsidiary of the Alpha Parties is a duly organized and validly existing entity in good standing (where applicable) under the Laws of its jurisdiction of organization, with all requisite entity power and authority to own its properties and conduct its business as currently conducted. Each Alpha Party and each of their respective Subsidiaries is duly qualified and in good standing as a foreign corporation or entity authorized to do business in each of the jurisdictions in which the character of the properties owned or held under lease by it or the nature of the business transacted by it makes such qualification necessary, except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)    ANR has heretofore made available to Contura true, correct and complete copies of (i) the certificate of incorporation and bylaws of ANR as in effect on the date hereof, including all amendments thereto (respectively, the “ ANR Certificate of Incorporation ” and “ ANR Bylaws ”) and (ii) the certificate of incorporation and bylaws of Holdings as in effect on the date hereof, including all amendments thereto (respectively, the “ Holdings Certificate of Incorporation ” and “ Holdings Bylaws ”).
(c)    Holdings does not own any assets or properties other than 4,223,400 shares of Class C-2 Common Stock, and Holdings does not have, and has never had, any employees, has not engaged in any activities or business and has incurred no liabilities or obligations, in each case, other than those incident to its ownership of Class C-2 Common Stock.
Section 3.02.     Capitalization . (a) The authorized capital stock of Holdings consists of (i) 5,000,000 shares of common stock, par value $0.01 per share, of Holdings (“ Holdings Common Stock ”) (ii) 6,500,000 shares of Series A Preferred Stock, par value $0.01 per share, of Holdings (“ Holdings Series A Preferred Stock ”), and (iii) 300,000 shares of Series B Preferred Stock, par value $0.01 per share, of Holdings (“ Holdings Series B Preferred Stock ”, and together with Holdings Series A Preferred Stock, “ Holdings Preferred Stock ”). As of the close of business on April 20, 2018 (the “ Capitalization Date ”), (A) 4,223,290 shares of Holdings Common Stock and no shares of Holdings Preferred Stock were issued and outstanding, (B) no shares of Holdings Common Stock were held in Holdings’ treasury, (C) 6,500,000 shares of Holdings Series A Preferred Stock were held in Holdings’ treasury, and (D) 300,000 shares of Holdings Series B Preferred Stock were held in Holdings’ treasury. All of the outstanding shares of Holdings Common Stock have been duly authorized and, as applicable, validly issued and are fully paid, nonassessable and free of preemptive rights.
(b)    The authorized capital stock of ANR consists of (i) 50,000,000 shares of Class C-1 common stock, par value $0.01 per share, of ANR (“ Class C-1 Common Stock ”) and (ii) 4,223,400 shares of Class C-2 Common Stock, par value $0.01 per share, of ANR (the “ Class C-2 Common Stock ”, and together with Holdings Common Stock and Class C-1 Common Stock, “ Alpha Capital Stock ”). As of the close of business on the Capitalization Date, (A) 15,907,752 shares of Class C-1 Common Stock and 4,223,400 shares of Class C-2 Common Stock were issued and outstanding, (B) no shares of Class C-1 Common Stock and no shares of Class C-2 Common Stock were held in ANR’s treasury, and (C) 2,000,000 shares of Class C-1 Common Stock and no shares of Class C-2 Common Stock were issuable under ANR Plans. All of the outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. Holdings owns 4,223,400 shares of Class C-2 Common Stock free and clear of any Liens.
(c)    Section 3.02(c) of the Alpha Disclosure Schedule contains a true, correct and complete list, as of the Capitalization Date, of each outstanding ANR Stock Option and ANR RSU outstanding, the number of shares of Class C-1 Common Stock issuable thereunder or to which such award pertains, the expiration date, and the exercise or conversion price, if applicable, related thereto and, if applicable, the ANR Plan pursuant to which each such ANR Stock Option and ANR RSU

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was granted. Since the Capitalization Date, no Alpha Party has issued any capital stock (other than issuances permitted by ‎Section 5.01 or upon the exercise of ANR Stock Options or settlement of ANR RSUs outstanding on the Capitalization Date in accordance with their terms), granted any other Alpha Securities or entered into any other agreements or commitments to issue any Alpha Securities, and has not split, combined or reclassified any shares of its capital stock. All of the outstanding ANR Stock Options and ANR RSUs have been issued under, and are subject to the terms and conditions of, the ANR, Inc. 2017 Equity Incentive Plan (the “ 2017 Equity Plan ”).
(d)    Except as set forth in ‎Section 3.02(a) and ‎(b) and except for ANR Stock Options and ANR RSUs set forth in Section 3.02(c) of the Alpha Disclosure Schedule, there are no outstanding (i) securities of any Alpha Party or any of their respective Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in any Alpha Party, (ii) options, restricted stock warrants, rights or other agreements or commitments to acquire from any Alpha Party or any of their respective Subsidiaries, or obligations of any Alpha Party or any of their respective Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) any Alpha Party, or bonds, debentures, notes or other evidences of Indebtedness having the right to vote on any matters on which stockholders of any Alpha Party may vote, (iii) obligations (contingent or otherwise) of any Alpha Party or any of their respective Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Alpha Security (the items in clauses ‎(i), ‎(ii) and ‎(iii), together with the capital stock of the Alpha Parties, being referred to collectively as “ Alpha Securities ”), or (iv) obligations (contingent or otherwise) of any Alpha Party or any of their respective Subsidiaries to make any payments directly or indirectly based (in whole or in part) on the price or value of any Alpha Securities. There are no outstanding obligations, commitments or arrangements, contingent or otherwise, of any Alpha Party or any of their Subsidiaries to purchase, redeem or otherwise acquire any Alpha Securities. There are no voting trusts or other agreements or understandings to which any Alpha Party or any of their respective Subsidiaries is a party (or, to the knowledge of any Alpha Party, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of any Alpha Party.
(e)    Section 3.02(e) of the Alpha Disclosure Schedule sets forth a complete and accurate list of the Subsidiaries of ANR. ANR, alone or together with one or more of its wholly owned Subsidiaries, is the record and beneficial owner of all the equity interests of each of its Subsidiaries, in each case free and clear of any Lien (other than Liens arising under applicable securities Laws). With respect to each Subsidiary of ANR, there are no outstanding (i) securities of any Alpha Party or any of their respective Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in any Subsidiary of ANR, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from any Alpha Party or any of their respective Subsidiaries, or obligations of any Alpha Party or any of their respective Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) any Subsidiary of ANR, (iii) obligations of any Alpha Party or any of their respective Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of ANR (the items in clauses ‎(i), ‎(ii) and ‎(iii), together with the capital stock or other equity interests of such Subsidiaries, being referred to collectively as “ Alpha Subsidiary Securities ”), or (iv) obligations of any Alpha Party or any of their respective Subsidiaries to make any payment directly or indirectly based (in whole or in part) on the price or value of any Alpha Subsidiary Securities. There are no outstanding obligations, contingent or otherwise, of any Alpha Party or any of their respective Subsidiaries to purchase, redeem or otherwise acquire any outstanding Alpha Subsidiary Securities. There are no voting trusts or other agreements or understandings to which any Alpha Party or any of their respective Subsidiaries is a party (or, to the knowledge of any Alpha Party, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of any Subsidiary of ANR. Prior to the date hereof, ANR has made available to Contura complete and accurate copies of the charter and bylaws or other organizational documents of each Subsidiary of ANR.
(f)    ANR does not control, directly or indirectly, or have any direct or indirect equity participation or similar interest in any entity which is not a Subsidiary of ANR.
Section 3.03.     Authority for this Agreement; Board Action . (a) Holdings has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby to which Holdings is a party. The execution and delivery of this Agreement by Holdings and the consummation by Holdings of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Holdings (the “ Holdings Board ”),

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including the adoption by the Holdings Board of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the Holdings Merger, and no other corporate proceedings on the part of Holdings are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, other than, with respect to completion of the Holdings Merger, the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement by the Holdings Stockholder Approval prior to the consummation of the Holdings Merger and the filing of the Holdings Certificate of Merger with the Secretary of State as required by the DGCL. This Agreement has been duly and validly executed and delivered by Holdings and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(b)    The Holdings Board (at a meeting or meetings duly called and held) has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Holdings Merger, are advisable and fair to, and in the best interests of, Holdings and its stockholders, (ii) adopted and approved this Agreement and the transactions contemplated hereby, including the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the Holdings Merger, (iii) subject to the last sentence of ‎Section 5.05(a), directed that the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this Agreement be submitted to the stockholders of Holdings for adoption, and (iv) subject to Sections ‎5.03(d) and ‎(e), resolved to recommend the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this Agreement by the stockholders of Holdings (the “ Holdings Board Recommendation ”), which actions and resolutions, subject to Sections ‎5.03(d) and ‎(e), have not been subsequently rescinded, modified or withdrawn in any way.
(c)    ANR has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby to which ANR is a party. The execution and delivery of this Agreement by ANR and the consummation by ANR of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of ANR (the “ ANR Board ”), including the adoption by the ANR Board of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the ANR Merger, and no other corporate proceedings on the part of ANR are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, other than, with respect to completion of the ANR Merger, the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement by the ANR Stockholder Approval prior to the consummation of the ANR Merger and the filing of the ANR Certificate of Merger with the Secretary of State as required by the DGCL. This Agreement has been duly and validly executed and delivered by ANR and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of ANR, enforceable against ANR in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(d)    The ANR Board (at a meeting or meetings duly called and held) has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the ANR Merger, are advisable and fair to, and in the best interests of, ANR and its stockholders, (ii) adopted and approved this Agreement and the transactions contemplated hereby, including the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the ANR Merger, (iii) subject to the last sentence of ‎Section 5.05(a), directed that the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement be submitted to the stockholders of ANR for adoption, and (iv) subject to Sections ‎5.03(d) and ‎(e), resolved to recommend the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement by the stockholders of ANR (the “ ANR Board Recommendation ”, and together with the Holdings Board Recommendation, the “ Alpha Board Recommendations ”), which actions and resolutions, subject to Sections ‎5.03(d) and ‎(e), have not been subsequently rescinded, modified or withdrawn in any way.
Section 3.04.     Consents and Approvals; No Violation . (a) Neither the execution and delivery of this Agreement by any Alpha Party nor the consummation of the transactions contemplated hereby by any Alpha Party will (i) violate or conflict with or result in any breach of any provision of the ANR Certificate of Incorporation, the Holdings Certificate of Incorporation, the ANR Bylaws or the Holdings Bylaws, (ii) assuming all consents, approvals and authorizations contemplated by clauses ‎(i) through ‎(iv) of ‎Section 3.04(b) have been obtained, and all filings described in such clauses have been made, in any material respect conflict with or violate any order, writ, injunction, decree, judgment, determination,

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requirement, award, stipulation, statute, rule or regulation of any Governmental Entity (“ Law ”) applicable to any Alpha Party or any of their respective Subsidiaries or by which any of their respective assets are bound, (iii) violate, conflict with or result in a breach of, or require any consent, waiver or approval under, or result in a default or give rise to any right of termination, cancellation, modification or acceleration (or an event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under, any of the terms, conditions or provisions of any note, bond, mortgage, lease, license, agreement, contract, indenture or other instrument or obligation (“ Contract ”) to which any Alpha Party or any of their respective Subsidiaries is a party or by which any Alpha Party or any of their respective Subsidiaries or any of their respective assets are bound, or (iv) result (or, with the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Lien on any asset of any Alpha Party or any of their respective Subsidiaries, except in the case of clauses ‎(iii) and ‎(iv), as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)    The execution, delivery and performance of this Agreement by the Alpha Parties and the consummation of the transactions contemplated hereby do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any foreign, federal, state or local government or subdivision thereof, or governmental, judicial, legislative, executive, administrative or regulatory authority, agency, commission, tribunal or body (a “ Governmental Entity ”), except (i) the pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), (ii) the filing with the Securities and Exchange Commission (the “ SEC ”) of the Form S-4 and such other reports and filings as are required under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and regulations promulgated thereunder, (iii) the filing of the Certificates of Merger with the Secretary of State as required by the DGCL, (iv) such governmental consents, qualifications or filings as are customarily obtained or made in connection with the transfer of interests or the change of control of ownership in coal mining properties, including notices and consents relating to or in connection with mining, reclamation, nuclear material, radio communications and environmental Permits, in each case under the applicable Laws of West Virginia, Pennsylvania, Virginia, Kentucky, Utah, Tennessee, Illinois, Indiana and the United States of America and (v) any such consent, approval, authorization, permit, filing, or notification the failure of which to make or obtain would not have or reasonably be expected to be material.
Section 3.05.     Financial Statements . (a) All of the Subsidiaries of ANR are consolidated for accounting purposes. ANR has delivered to Contura the audited consolidated financial statements (including the related notes thereto) of ANR for the fiscal year ended December 31, 2017 (the “ Balance Sheet Date ”) (the “ Alpha Financial Statements ”), and the Alpha Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of ANR and its Subsidiaries as of their respective dates, and the consolidated income, stockholders’ equity, results of operations and changes in consolidated financial position or cash flows for the periods presented therein.
(b)    The records, systems, controls, data and information of ANR and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of ANR or its accountants (including all means of access thereto and therefrom), except for any nonexclusive ownership and nondirect control that has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the system of internal accounting controls described below in this Section. ANR has implemented and maintain a system of internal controls that is designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements for external purposes in accordance with GAAP, and such system of internal controls is effective. ANR has disclosed, based on its most recent evaluation of its system of internal controls prior to the date of this Agreement, to their outside auditors and the audit committees of the ANR Board (A) any significant deficiencies and material weaknesses in the design or operation of its internal controls reporting that would reasonably be expected to adversely affect ANR’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in ANR’s internal controls over financial reporting. Prior to the date hereof, a true, correct and complete summary of any such disclosures made to ANR’s auditors and the audit committee of the ANR Board has been provided to Contura.
(c)    Since July 26, 2016, neither ANR nor any of its Subsidiaries or, to the knowledge of ANR, any director, officer, employee, auditor, accountant or representative of ANR or its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of ANR or its Subsidiaries or their respective internal accounting

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controls, including any material complaint, allegation, assertion or claim that ANR or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and no attorney representing ANR or any of its Subsidiaries, whether or not employed by ANR or any of its Subsidiaries, has reported evidence of a material violation of securities Law, breach of fiduciary duty or similar violation by ANR or any of its Subsidiaries or any of its officers, directors, employees or agents to the ANR Board or any committee thereof or to any director or officer of ANR or any of its Subsidiaries.
(d)    No Alpha Party nor any of their respective Subsidiaries has any liabilities of any nature, whether accrued, absolute, fixed, contingent or otherwise, known or unknown, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP, other than liabilities (i) as and to the extent reflected or reserved against on the consolidated balance sheet of ANR dated as of the Balance Sheet Date included in the Alpha Financial Statements, (ii) incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date, or (iii) that would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
Section 3.06.     Absence of Certain Changes . (a) Since the Balance Sheet Date, the Alpha Parties and their respective Subsidiaries have conducted their business only in the ordinary course consistent with past practice, and no Alpha Party nor any of their respective Subsidiaries has taken any action since the Balance Sheet Date that, if taken after the date of this Agreement without the prior written consent of Contura, would constitute a breach of ‎Section 5.01.
(b)    Since the Balance Sheet Date, there has not been any change, effect, event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
Section 3.07.     Information Supplied; Joint Proxy Statement . None of the information supplied or to be supplied in writing by or on behalf of any Alpha Party for inclusion or incorporation by reference in (i) the registration statement on Form S-4 to be filed with the SEC by Contura in connection with the issuance of Contura Common Stock for the Mergers (including any amendments or supplements, the “ Form S-4 ”) will, at the time the Form S-4 becomes effective under the Securities Act of 1933, as amended (the “ Securities Act ”), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the joint proxy statement relating to the Alpha Special Meetings (such proxy statement, as amended or supplemented from time to time, the “ Joint Proxy Statement ”) will, at the date such Joint Proxy Statement is first mailed to the stockholders of the Alpha Parties or at the time of the Alpha Special Meetings, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing provisions of this ‎Section 3.07, no representation or warranty is made by the Alpha Parties with respect to information or statements made or incorporated by reference in the Form S-4 or the Joint Proxy Statement that were not supplied in writing by or on behalf of the Alpha Parties.
Section 3.08.     Employee Benefits Matters . (a) Section 3.08(a) of the Alpha Disclosure Schedule contains a true, correct and complete list of all ANR Plans in effect on the date hereof. Prior to the date of this Agreement, ANR has provided or made available to Contura true, correct and complete copies as in effect on the date hereof of each of the following with respect to each such ANR Plan, as applicable: (i) the plan document or agreement or, with respect to any ANR Plan that is not in writing, a description of the material terms thereof; (ii) any summary plan description required to be furnished to participants pursuant to ERISA; (iii) the most recent annual report, actuarial report, financial report and/or communication to the U.S. Department of Labor or the Pension Benefits Guarantee Corporation, if any; (iv) all amendments or modifications to any such documents; (v) the most recent determination letter received from the Internal Revenue Service with respect to each ANR Plan that is intended to be a “qualified plan” under Section 401 of the Code; and (vi) the most recent required Internal Revenue Service Form 5500, including all schedules thereto.
(b)    Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, with respect to each ANR Plan, (i) since July 26, 2016, all expenses, contributions, premiums or payments required to be made to, under or with respect to such ANR Plan have been timely made and all amounts properly accrued to date or as of the Closing as liabilities of any Alpha Party or any of their respective Subsidiaries which are not yet due have been properly recorded on the books of the Alpha Parties and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Alpha Parties, (ii) since July 26, 2016, each such ANR Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)) and intended to qualify under Section 401 of the Code has received a favorable determination letter

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from the Internal Revenue Service with respect to such qualification, and, to the knowledge of any Alpha Party, nothing has occurred since the date of such letter that has affected, or would reasonably be expected to adversely affect, such qualification, (iii) since July 26, 2016, with respect to any ANR Plan maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied, (iv)  there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of any Alpha Party, threatened or anticipated with respect to such ANR Plan, any fiduciaries of such ANR Plan with respect to their duties to any ANR Plan, or against the assets of such ANR Plan or any trust maintained in connection with such ANR Plan, (v) since July 26, 2016, such ANR Plan has been operated and administered in compliance in all material respects with its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of any Alpha Party there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the posting of security with respect to a ANR Plan or the imposition of any pledge, lien, security interest or encumbrance on the assets of any Alpha Party or any of their respective Subsidiaries or any of their respective ERISA Affiliates under ERISA, the Pension Protection Act or the Code, or similar Laws of foreign jurisdictions.
(c)    No Alpha Party or any of their respective Subsidiaries or any of their ERISA Affiliates, (i) has, since July 26, 2016, sponsored, maintained or contributed to, or has ever had any obligation to contribute to, (A) any “employee benefit plan” within the meaning of Section 3(3) of ERISA that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code or (B) a “multiemployer plan” within the meaning of Section 3(37) and 4001(a)(3) of ERISA or a “multiple employer plan” within the meaning of Sections 4063/4064 of ERISA or Section 413(c) of the Code, or (ii) has, since July 26, 2016, incurred or reasonably expects to incur any direct or indirect liability pursuant to Title IV of ERISA (including any Controlled Group Liability).
(d)    To the knowledge of any Alpha Party, no ANR Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(e)    Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of any Alpha Party or any of their respective Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(f)    To the knowledge of any Alpha Party, all ANR Stock Options and ANR RSUs have been granted in compliance with the terms of the applicable ANR Plans, with applicable Law, and with the applicable provisions of the Alpha Certificate of Incorporation or the Alpha Bylaws as in effect at the applicable time.
(g)    Each ANR Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with applicable Law, including Section 409A of the Code.
(h)    No Alpha Party has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, consultant, director or individual independent contractor of any Alpha Party (each, an “ Alpha Service Provider ”) for any Tax incurred by such individual, including under Section 280G, 409A or 4999 of the Code.
(i)    No Alpha Party has any current or projected liability for, and no ANR Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any Alpha Service Provider (other than coverage mandated by applicable Law, including COBRA).
Section 3.09.     Employees . (a) Section 3.09(a) of the Alpha Disclosure Schedule sets forth, (i) for each current Alpha Service Provider who is classified as an employee, such employee’s name, employer, title, supervisor, hire date, years of service, location, whether full- or part-time, whether active or on leave (and, if on leave, the nature of the leave and the expected return date), whether exempt from the Fair Labor Standards Act, annual salary or wage rate, most recent annual, bi-annual, quarterly or monthly bonus received and current annual, bi-annual, quarterly or monthly bonus opportunity, retention incentives, and total compensation amount, including fringe benefits and (ii) for each current Alpha Service Provider who is

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classified as an independent contractor, such individual’s name, engaging entity, title, supervisor, engagement date, location, whether active or on leave (and, if on leave, the nature of the leave and the expected return date), annual wage rate, most recent annual or quarterly bonus received and current annual or quarterly bonus opportunity.
(b)    Section 3.09(b) of the Alpha Disclosure Schedule sets forth each collective bargaining agreement or any labor union contract with respect to employees in the United States to or by which any of the Alpha Parties or their respective Subsidiaries is a party or bound. A true and correct copy of each such agreement has been provided to Contura, together with a true and correct copy of all recall panels. There are, and since July 26, 2016 there have been, no actual or, to the knowledge of any Alpha Party, threatened, labor strikes, disputes, walkouts, work stoppages, slowdowns, or lockouts with respect to employees of any Alpha Party or any of their respective Subsidiaries. No material or class action labor grievance or arbitration demand or proceeding, or unfair labor practice charge or proceeding, whether or not filed pursuant to a collective bargaining agreement, has been filed since July 26, 2016, is pending or, to the knowledge of any Alpha Party, is threatened against any Alpha Party or their respective Subsidiaries.
(c)    Each Alpha Party and each of their respective Subsidiaries are, and since July 26, 2016 have been, in all material respects compliance with all applicable local, state, federal and foreign Laws relating to labor and employment, including but not limited to Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations. There are, and since July 26, 2016 there have been, no material complaints, lawsuits, arbitrations, administrative proceedings, or other Proceedings pending or, to the knowledge of any Alpha Party, threatened against any Alpha Party or any of their respective Subsidiaries brought by or on behalf of or material settlements entered into by an Alpha Party with any applicant for employment, any current or former Alpha Service Provider, any person alleging to be a current or former Alpha Service Provider, any class of the foregoing, or any Governmental Entity, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment or engagement, or alleging any other discriminatory, wrongful or tortuous conduct in connection with the employment or service relationship.
(d)    Since July 26, 2016, no Alpha Party or any of their current Subsidiaries has incurred any liability or obligation which remains unsatisfied under the Worker Adjustment and Retraining Notification Act or any state or local Laws regarding the termination or layoff of employees (“ WARN ”).
Section 3.10.     Litigation . (a) There is no claim, action, suit, proceeding, arbitration or mediation by or before any Governmental Entity (each, a “ Proceeding ”) pending (or, to the knowledge of any Alpha Party, threatened), nor, to the knowledge of any Alpha Party, is any investigation by any Governmental Entity pending or threatened (other than any such Proceeding or governmental investigation that challenges or seeks to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby), to which any Alpha Party or any of their respective Subsidiaries is a party or against any Alpha Party or any of their respective Subsidiaries or any of its or their properties or assets that (i) involves an amount in controversy in excess of $500,000, (ii) seeks injunctive or other non-monetary relief, or (iii) would have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect. As of the date hereof, there are no Proceedings pending or, to the knowledge of any Alpha Party, threatened, nor, to the knowledge of any Alpha Party, are there any investigations by any Governmental Entity pending or threatened, against any Alpha Party or any of their respective Subsidiaries challenging or seeking to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby. No Alpha Party nor any of their respective Subsidiaries nor any of their respective properties or assets is subject to any outstanding order, writ, injunction or decree of any Governmental Entity, except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)    Section 3.10(b) of the Alpha Disclosure Schedule sets forth an accurate and complete list of each Proceeding or governmental investigation resolved or settled since July 26, 2016 and prior to the date of this Agreement and requiring payment by any Alpha Party or any of their respective Subsidiaries in excess of $500,000 or involving the imposition on any Alpha Party or any of their respective Subsidiaries of injunctive or other nonmonetary relief.
(c)    Section 3.10(c) of the Alpha Disclosure Schedule sets forth an accurate and complete list of each Proceeding to which any Alpha Party or any of their respective Subsidiaries is a party or effecting any Alpha Party or any of their respective Subsidiaries or any of its or their properties or assets, in each case arising from or relating to the bankruptcy

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cases commenced in the United States Bankruptcy Court for the Eastern District of Virginia (“ Bankruptcy Court ”) under chapter 11 of the Bankruptcy Code and captioned as In re Alpha Natural Resources, Inc., et al., No. 15-33896 (KRH) (Bankr. E.D. Va.) (the “ Bankruptcy Cases ”).
(d)    To the knowledge of any Alpha Party, (i) no officer or director of any Alpha Party or any of their respective Subsidiaries is a defendant in any Proceeding or governmental investigation in connection with his or her status as an officer or director of any Alpha Party or any of their respective Subsidiaries, and (ii) no such Proceeding or governmental investigation is threatened in writing.
Section 3.11.     Tax Matters . (a) All material Tax Returns required by applicable Law to be filed with any Taxing Authority by or with respect to the Alpha Parties or any of their Subsidiaries since July 26, 2016 have been filed when due (taking into account extensions validly obtained) and all such Tax Returns are, or shall be at the time of filing, true, correct and complete in all material respects.
(b)    The Alpha Parties and their Subsidiaries have paid (or have had paid on their behalf) or have withheld and remitted to the appropriate Taxing Authority all material Taxes attributable to Holdings that were due and payable since July 26, 2016 or where payment is not yet due, have established an adequate accrual, in accordance with GAAP and past custom and practice of the Alpha Parties and their Subsidiaries, for all Taxes through the end of the last period for which the Alpha Parties and their Subsidiaries ordinarily record items on their respective books and records.
(c)     There is no audit, investigation, claim, suit, proceeding or assessment in respect of Taxes or material Tax assets now pending or, to the knowledge of an Alpha Party, threatened in writing against an Alpha Party or any of its Subsidiaries.
(d)     There are no agreements or arrangements in effect to extend the period of limitations for the assessment or collection of any Tax for which an Alpha Party or any of its Subsidiaries may be liable, and there is no currently effective “closing agreement” pursuant to Section 7121 of the Code (or any similar provision of foreign, state or local Law).
(e)    No claim has been made since July 26, 2016 by any Taxing Authority in a jurisdiction where neither an Alpha Party nor any of its Subsidiaries has filed Tax Returns that an Alpha Party or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(f)    ‎Section 3.11(f) of the Alpha Disclosure Schedule contains a list of all jurisdictions (whether foreign or domestic) in which an Alpha Party or any of its Subsidiaries currently file Tax Returns.
(g)    During the five-year period ending on the date hereof, no Alpha Party or any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(h)    None of the Alpha Parties nor any of their Subsidiaries has engaged in a “listed transaction” (as defined in Treasury Regulation Section 1.6011-4).
(i)    The Alpha Parties and their Subsidiaries have withheld from payments to their employees, independent contractors, creditors, stockholders and any other applicable person (and timely paid to the appropriate Taxing Authority) all material amounts required by applicable Tax Law to be withheld and paid for all periods since July 26, 2016 through the date of this Agreement, except with respect to amounts that are being contested in good faith by appropriate proceedings, and have complied in all material respects with all applicable Laws relating to information reporting.
(j)    None of the Alpha Parties nor any of their Subsidiaries have taken or agreed to take any action, or are aware of any fact or circumstance, that would reasonably be expected to prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(k)    Section 3.11(k) of the Alpha Disclosure Schedule contains a list of all Tax sharing and Tax indemnification agreements entered into after July 26, 2016 and currently in effect as to which any Person other than an Alpha Party or any of its Subsidiaries is a party. There is no claim now pending or, to the knowledge of an Alpha Party, threatened in writing against an Alpha Party or any of its Subsidiaries for payment or indemnification in respect of Taxes pursuant to any such Tax sharing or Tax indemnification agreement. For purposes of this representation, commercial agreements or Contracts not primarily related to Taxes shall not be considered Tax sharing or Tax indemnification agreements

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(l)    For purposes of this Agreement: “ Tax ” means (i) any tax, governmental fee or other like assessment or charge of any kind whatsoever (including withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority (a “ Taxing Authority ”) responsible for the imposition of any such tax (domestic or foreign), and any liability for any of the foregoing as transferee, and (ii)  liability for the payment of any amount of the type described in clause (i) as a result of being or having been before the First Effective Time a member of an affiliated, consolidated, combined or unitary group for Tax purposes. “ Tax Return ” means any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information.
Section 3.12.     Compliance with Law . Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Subsidiary and each of their respective Subsidiaries is and has been since July 26, 2016 in compliance with all Laws applicable to the conduct of the business of any Alpha Party or any of their respective Subsidiaries or by which any assets of any Alpha Party or any of their respective Subsidiaries are bound or affected.
Section 3.13.     Permits; Surety Bonds . (a) Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect:
(i)    Each Alpha Party and each of their respective Subsidiaries have all Permits required under applicable Laws to own, lease, develop or operate their real properties and assets or to conduct their businesses as conducted on the date hereof (including Permits relating to underground mining, surface mining, highwall mining and auger mining, processing, sale or transporting of coal and coal byproducts, or activities defined under the Surface Mining Control and Reclamation Act of 1977, as amended, as “surface coal mining operations”) (collectively, the “ Alpha Permits ”) and each Alpha Permit is in full force and effect;
(ii)    each Alpha Party and each of their respective Subsidiaries is and since July 26, 2016 has been in compliance with the terms and conditions of the Alpha Permits; and
(iii)    since July 26, 2016, no Alpha Party or any of their respective Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw, modify in any adverse respect or limit any of the Alpha Permits and, to the knowledge of any Alpha Party, there are no circumstances or conditions providing grounds for any suspension, revocation, withdrawal, adverse modification or limitation on any of the Alpha Permits.
(b)    Since July 26, 2016, no Alpha Party or any of their respective Subsidiaries has been notified in writing by the Federal Office of Surface Mining or the agency of any state administering the Surface Mining Control and Reclamation Act of 1977, as amended (or any comparable state statute) that it is (i) ineligible to receive additional surface mining Permits or (ii) under investigation to determine whether its eligibility to receive such Permits should be “permit blocked.”
(c)    Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect:
(i)    there are no applications for new Permits (for the avoidance of doubt, not including amendments, renewals, extensions or other modifications of existing Alpha Permits) other than those set forth in Section 3.13(c) of the Alpha Disclosure Schedule (the “ Alpha Permit Applications ”);
(ii)    each of the Alpha Permit Applications has been made in accordance with applicable Laws, subject to such changes as may be requested by a Governmental Entity as part of the permit review process; and
(iii)    except for changes requested by a Governmental Entity as part of the permit review process, which changes can be readily implemented by the Alpha Parties or their Subsidiaries, as applicable, no Alpha Party or any of their respective Subsidiaries has received any written notice from any Governmental Entity indicating that any of the Alpha Permit Applications will not be granted.

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(d)    Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Party and their respective Subsidiaries have posted all deposits, letters of credit, trust funds, bid bonds, performance bonds, reclamation bonds and surety bonds (and all such similar undertakings) (collectively, the “ Surety Bonds ”) required to be posted in connection with their operations and pursuant to the Alpha Permits. All Surety Bonds posted by each Alpha Party and their respective Subsidiaries in connection with its respective operations are defined as the “ Alpha Surety Bonds. ” Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Party and their respective Subsidiaries is in compliance with all Alpha Surety Bonds applicable to it.
(e)    Without limiting the generality of the foregoing, the operation of the coal mining and processing operations of each Alpha Party and their respective Subsidiaries and the state of reclamation with respect to each of their Alpha Permits is “current” with respect to the reclamation obligations required by the Alpha Permits and otherwise are in compliance with the Alpha Permits and all applicable mining, reclamation and other similar Laws, except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
Section 3.14.     Environmental Matters . (a) Except as would not reasonably be expected to be material, individually or in the aggregate, each Alpha Party and their respective Subsidiaries (x) is and since July 26, 2016 has been in compliance with applicable Environmental Laws, (y) holds and is and since July 26, 2016 has been in compliance with all Permits required under Environmental Laws for the conduct of its business and activities as currently conducted (the “ Alpha Environmental Permits ”) and (z) is and since July 26, 2016 has been in compliance with the EPA Consent Decree and all other agreements or commitments entered into with any governmental authority. All Alpha Environmental Permits are in full force and effect, and all applications, notices or other documents have been timely filed to effect timely renewal, issuance or reissuance of such Alpha Environmental Permits.
(b)    No Alpha Party or any of their respective Subsidiaries is the subject of any Environmental Claim, and no Environmental Claim is pending or, to the knowledge of any Alpha Party, threatened against any Alpha Party or any of their respective Subsidiaries or against any Person whose liability for the Environmental Claim was retained or assumed by Contract or by operation of Law or pursuant to any order issued by any Governmental Entity, in each case, by any Alpha Party or any of their respective Subsidiaries.
(c)    No Hazardous Materials are present at, on, under or emanating from any properties or facilities currently leased, operated or used or, to the knowledge of any Alpha Party, previously owned, leased, operated or used, in circumstances that would reasonably be expected to form the basis for an Environmental Claim against, or a requirement for investigation pursuant to applicable Environmental Law by, any Alpha Party or any of their respective Subsidiaries.
(d)    To the knowledge of any Alpha Party, no property presently owned, leased or operated by any Alpha Party or any of their respective Subsidiaries contains any (x) landfills, surface impoundments, disposal areas or radioactive materials (except to the extent such land use or material is allowed pursuant to applicable Permits), (y) underground storage tanks or aboveground storage tanks or (z) asbestos or asbestos-containing material, polychlorinated biphenyls, and no such property is listed or proposed for listing on the National Priorities List or any similar list issued by a Governmental Entity of sites where remedial action is or is reasonably expected to be necessary.
(e)    No Alpha Party or any of their respective Subsidiaries has Released, disposed of, or arranged to dispose of, any Hazardous Materials in a manner, or to a location, that would reasonably be expected to result in an Environmental Claim.
(f)    No material Lien imposed by any Governmental Entity having jurisdiction pursuant to any Environmental Law is currently outstanding as to any assets owned, leased or operated by any Alpha Party or any of their respective Subsidiaries except for Liens imposed in connection with any Alpha Surety Bonds.
(g)    Except for Alpha Surety Bonds posted in the ordinary course of business and the surety agreements related thereto, no financial assurance obligation is in force as to any property or facility owned, leased or operated by any Alpha Party or any of their respective Subsidiaries.
(h)    Each Alpha Party and their respective Subsidiaries have no obligation or liability by Contract relating to or arising under Environmental Law.

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(i)    For purposes of the Agreement:
(i)    “ Environment ” means any ambient, workplace or indoor air, surface water, drinking water, groundwater, land surface (whether below or above water), subsurface strata, sediment, plant or animal life, natural resources, and the sewer, septic and waste treatment, storage and disposal systems servicing real property or physical buildings or structures.
(ii)    “ Environmental Claim ” means any claim, cause of action, investigation (other than an investigation voluntarily conducted or commissioned by the subject of such investigation) or notice by any Person, including any Governmental Entity having jurisdiction, alleging potential liability (including potential liability for investigatory costs, cleanup or remediation costs, governmental or third party response costs, natural resource damages, property damage, personal injuries, or fines or penalties) based on or resulting from (A) the presence or Release of, or exposure to, any Hazardous Materials at any location, or (B) any Environmental Law, including the alleged or actual violation thereof.
(iii)    “ Environmental Law ” means any Law (including common law) or any binding Contract, memorandum of understanding or commitment letter issued or entered by or with any Governmental Entity or Person relating to: (A) the Environment, including pollution, contamination, cleanup, preservation, protection and reclamation of the Environment, (B) the protection of human health or the exposure of employees or third parties to any Hazardous Materials, (C) any Release or threatened Release of any Hazardous Materials, including investigation, assessment, testing, monitoring, containment, removal, remediation and cleanup of any such Release or threatened Release, (D) the management of any Hazardous Materials, including the use, labeling, processing, disposal, storage, treatment, transport, or recycling of any Hazardous Materials, or (E) the presence of Hazardous Materials in any building, physical structure, product or fixture.
(iv)    “ Hazardous Materials ” means all materials, chemicals, wastes, compounds and substances in any form defined as Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.5, toxic mold, or otherwise regulated or defined as hazardous, toxic or words of similar import under any Environmental Law.
(v)    “ Release ” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor Environment, or into or out of any property, including movement through air, soil, surface water, groundwater or property.
Section 3.15.     Intellectual Property . (a) Each Alpha Party and their respective Subsidiaries own or possess, or are validly licensed or otherwise have the right to obtain ownership or possession and to currently use, any and all patents, patent rights, inventions and discoveries (whether or not patentable or reduced to practice), trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, Copyrights, trade secrets, licenses and all other confidential or proprietary information and know-how, whether or not reduced to writing or any other tangible form, and any and all other proprietary intellectual property rights arising under the Laws of the United States (including any state or territory), any other country or group of countries or any political subdivision of any of the foregoing, whether registered or unregistered, and registrations and applications for registration of any of the foregoing (collectively, “ Intellectual Property Rights ”) used or held for use in, or otherwise reasonably necessary for, the conduct of the business of any Alpha Party or any of their respective Subsidiaries (the “ Alpha Intellectual Property ”).
(b)    Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, (i) the Alpha Parties and their respective Subsidiaries are the sole and exclusive owners of all Intellectual Property Rights owned or purported to be owned by any Alpha Party or by a Subsidiary of any Alpha Party (collectively, “ Alpha Owned Intellectual Property ”) and no such Alpha Owned Intellectual Property (A) is the subject of any pending or, to the knowledge of any Alpha Party, threatened interference, opposition or other Proceeding or (B) has been adjudged invalid or unenforceable in whole or part, (ii) the conduct of the business of the Alpha Parties or their respective Subsidiaries does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any third party, and (iii) the execution, delivery and performance of this Agreement by the Alpha Parties and the consummation of the transactions contemplated hereby will not cause the forfeiture or termination or give rise to a right of forfeiture or termination of any of the Alpha Intellectual Property, impair the right of any Alpha Party or a Subsidiary of any Alpha Party to make, use, sell, license, dispose of or otherwise exploit, or to bring any

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action for the infringement, misappropriation or other violation of, any Alpha Owned Intellectual Property, or impair the right of any Alpha Party or any of their respective Subsidiaries to use the Alpha Owned Intellectual Property in the conduct of their businesses as currently conducted.
(c)    The Alpha Parties and their respective Subsidiaries have used commercially reasonable efforts to maintain, protect, defend and enforce all material Alpha Owned Intellectual Property; provided that, without limiting Section 5.01, nothing herein shall be deemed to have required an Alpha Party or Subsidiary thereof to register or apply to register or to maintain, protect, defend or enforce any Alpha Owned Intellectual Property, except where the failure to do so would result in an Alpha Material Adverse Effect.
(d)    No Alpha Party or any of their respective Subsidiaries is experiencing any material defects in the Computer Software or hardware used in its business as it is currently conducted, including any material error or omission in the processing of any transactions.
(e)    For the purposes of this Agreement, “ Computer Software ” means all computer software (including programs and applications, object and source code, databases, algorithms, and documentation therefor, in each case including all Copyrights therefor), and “ Copyrights ” means all works of authorship, whether copyrightable or not, copyrights, and mask works, and registrations and applications for registration of any of the foregoing.
Section 3.16.     Real Property; Personal Property . (a) For the purpose of the Agreement:
(i)    “ Alpha Owned Real Property ” means all real property and other right, title and other interests in land, including coal, mineral, mining, water and surface rights, easements, rights of way and options, owned by any Alpha Party or any of their respective Subsidiaries, together with all improvements and fixtures located thereon or appurtenant thereto;
(ii)    “ Alpha Leased Real Property ” means all real property and other right, title and other interests in land, including coal, mineral, mining, water and surface rights, easements, rights of way and options, leased, subleased, licensed or otherwise used by any Alpha Party or any of their respective Subsidiaries as lessee, licensee or grantee (each such lease, sublease, license or other use agreement, an “ Alpha Lease ”), together with all improvements and fixtures located thereon or appurtenant thereto; and
(iii)    “ Alpha Real Property ” means the Alpha Owned Real Property and the Alpha Leased Real Property.
(b)    ‎Section 3.16(b) of the Alpha Disclosure Schedule sets forth a true, accurate and complete list of all Alpha Owned Real Property with a value of $1,000,000 or more. (i) The Alpha Real Property includes all of the land, buildings, structures and fixtures located thereon and all easements, rights of way, options, coal, mineral, mining, water, surface and other rights and interests appurtenant thereto necessary for the use by any Alpha Party and their respective Subsidiaries in the conduct of their business as currently conducted in all material respects; (ii) an Alpha Party or one of their Subsidiaries has good and marketable title to, or has a valid leasehold interest in, all Alpha Real Property (subject in all cases to Permitted Liens), except where the failure to have such title or interest could not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect; (iii) all Alpha Owned Real Property is owned by an Alpha Party or one of their Subsidiaries, free and clear of all Liens other than Permitted Liens or any other Liens that would not have, individually or in the aggregate, an Alpha Material Adverse Effect; (iv) an Alpha Party or one of their Subsidiaries has a valid leasehold interest in or easement or other property interest in, and to, and enjoys peaceful and undisturbed possession of all Alpha Leased Real Property on which it is currently conducting operations and, except where the failure to have such possession would not have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Party and their respective Subsidiaries has complied with all of its obligations under such leases and all such Leases are in full force and effect and are free and clear of all Liens other than Permitted Liens; and (v) an Alpha Party or one of their Subsidiaries has adequate rights of ingress and egress to all Alpha Real Property on which it is currently conducting operations, except where the failure to have such access would not have, individually or in the aggregate, an Alpha Material Adverse Effect, sufficient to access and exercise its rights with respect to such Alpha Real Property.
(c)    With respect to the Alpha Real Property:

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(i)    to the knowledge of any Alpha Party, there are no pending or threatened Proceedings to take all or any portion of the Alpha Real Property or any interest therein by eminent domain or any condemnation proceeding or any sale or disposition in lieu thereof;
(ii)    there are no outstanding options, rights of reverter, rights of first offer, rights of first refusal or contracts granted by any Alpha Party or any of their respective Subsidiaries to purchase or lease any material portion of such Alpha Real Property (other than such options or rights granted in the ordinary course of business);
(iii)    there are no leases or other contracts granting to any Person (other than any Alpha Party or any of their respective Subsidiaries) the right of use or occupancy of any material portion of any Alpha Real Property, other than those granted or incurred in the ordinary course of business, that do not, in the aggregate, interfere in any material respect with the ordinary conduct of the business of the Alpha Parties or their respective Subsidiaries at the Alpha Real Property affected thereby;
(iv)    all material buildings, structures, fixtures, building systems and equipment included in the Alpha Real Property that are currently in use (the “ Alpha Improvements ”) are in operating condition in all material respects, subject to reasonable wear and tear, and, to the knowledge of any Alpha Party, there are no facts or conditions affecting any of the Alpha Improvements that would materially and adversely interfere with the use or occupancy of the Alpha Improvements or any portion thereof in the operation of the business of the Alpha Parties and their respective Subsidiaries as presently conducted thereon;
(v)    to the knowledge of any Alpha Party, the present use of the Alpha Real Property (including the Alpha Improvements) is, and the Alpha Improvements themselves are, in substantial conformity with all recorded deeds, restrictions of record and other agreements affecting such Alpha Real Property, and to the knowledge of any Alpha Party there are no material violations thereof;
(vi)    to the knowledge of any Alpha Party, there are no currently proposed or pending assessments materially and adversely affecting the Alpha Real Property, whether for public improvements or otherwise;
(vii)    there are no outstanding Contracts or other obligations (including options) entered into by any Alpha Party or any of their respective Subsidiaries for the sale, exchange, encumbrance or transfer of any of the Alpha Real Property, or any portion of it, that are material to the Alpha Parties and their respective Subsidiaries taken as a whole; and
(viii)    to the knowledge of any Alpha Party, with respect to each Alpha Real Property on which significant surface Alpha Improvements are located, there are no rights or claims of parties in possession not shown by the public records, encroachments, overlaps, boundary line disputes or other matters which would be disclosed by an accurate survey or inspection of the premises except as could not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(d)    To the knowledge of any Alpha Party, the coal reserves currently mined by the Alpha Parties and their respective Subsidiaries that are owned or leased by any of them are not subject to the mining rights of any other Person with respect to such coal reserves and no Alpha Party or any of their respective Subsidiaries has received a notice of claim to such effect, and the Alpha Parties have sufficient rights to access and mine such coal reserves.
(e)    The Alpha Parties and their Subsidiaries are in possession of and have good and marketable title to, or have valid leasehold interests in, all tangible personal property used in the business of the Alpha Parties and their Subsidiaries, except as could not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect. All such tangible personal property is owned by an Alpha Party or one of their Subsidiaries, free and clear of all Liens other than Permitted Liens, or, to the knowledge of any Alpha Party, is leased under a valid and subsisting lease and, in each case, is in operating condition, ordinary wear and tear excepted.
Section 3.17.     Material Contracts . (a) Section 3.17(a) of the Alpha Disclosure Schedule lists, and ANR has made available to Contura prior to the date of this Agreement, true, correct and complete copies of, any of the following

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Contracts to which any Alpha Party or any of their respective Subsidiaries is a party or by which any Alpha Party, any of their respective Subsidiaries or any of their respective assets is bound, as of the date hereof:
(i)    that would be required to be filed by any Alpha Party as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act if such Alpha Party were subject to the filing or disclosure requirements under Regulation S-K under the Securities Act, or that would be required to be disclosed by any Alpha Party on a Current Report on Form 8-K if such Alpha Party were subject to the disclosure requirements under the Exchange Act;
(ii)    that contains covenants that limit the ability of any Alpha Party or any of their respective Subsidiaries (or which, following the consummation of the transactions contemplated by this Agreement, could reasonably be expected to restrict the ability of Contura or any of its Affiliates) to compete in any business or with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that would reasonably be expected to be material;
(iii)    that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation or control of any partnership or joint venture or similar entity or arrangement (other than any partnership or limited liability company operating agreement of a direct or indirect wholly-owned Subsidiary of any Alpha Party) or pursuant to which any Alpha Party or any of their respective Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(iv)    that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case, that is material to the business of the Alpha Parties and their respective Subsidiaries, taken as a whole;
(v)    that relates to (A) Indebtedness under which any Alpha Party and/or any of their respective Subsidiaries has outstanding obligations in excess of $1,000,000 or (B) conditional or similar sale arrangements in connection with which the aggregate actual or contingent obligations of the Alpha Parties and their Subsidiaries under such Contract are greater than $1,000,000;
(vi)    under which (A) to the knowledge of any Alpha Party, any Person has guaranteed any liabilities or obligations of any Alpha Party or their respective Subsidiaries (other than any such guarantees by any Alpha Party or their respective Subsidiaries), in case of each such liability or obligation, in an amount in excess of $1,000,000, or (B) any Alpha Party or any of their respective Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than any Alpha Party or any of their respective Subsidiaries);
(vii)    for the purchase and sale of coal under which (x) the aggregate amounts to be paid by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period;
(viii)    under which (x) the aggregate amounts to be paid by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period, in each case, other than (1) the Alpha Material Contracts described in Section ‎3.17(a)(vii) and (2) purchase orders for the purchase of goods or services in the ordinary course of business;
(ix)    any Alpha Interested Party Agreement;

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(x)    that relates to the ownership, lease or use of space at ANR’s headquarters located at 636 Shelby Street, 3rd Floor, Bristol, Tennessee;
(xi)    any Alpha Lease involving royalty payments of $500,000 or more per year;
(xii)    which is (i) a written employment agreement with any Alpha Service Provider that is not terminable on sixty (60) days' notice or less without penalty, liability or premium (including severance due upon a termination of employment) or (ii) a change in control, transaction bonus, retention bonus or other similar agreement with any Alpha Service Provider that requires a payment as a result, either alone or in combination with any other event, of the completion of the transactions contemplated hereby;
(xiii)    under which any Alpha Party or any Subsidiary thereof has granted or received a license or sublicense with respect to any Intellectual Property Right that is material to the operation of the business of such Alpha Party or such Subsidiary, and for this purpose, specifically excluding any (A) non-exclusive, end-user license for computer software that is generally commercially available (except if the failure of such Alpha Party or such Subsidiary to have such non-exclusive end-user license would result in an Alpha Material Adverse Effect) and (B) non-exclusive license or sublicense granted by any Alpha Party or any Subsidiary thereof in the ordinary course of business consistent with past practice;
(xiv)    that is otherwise material to the Alpha Parties or their Subsidiaries; or
(xv)    that would or would reasonably be expected to prevent or materially delay any Alpha Party’s ability to consummate the transactions contemplated by this Agreement.
Each Contract of the type described in clauses ‎(i) through ‎(xv) is referred to herein as an “Alpha Material Contract.”
(b)    Each Alpha Material Contract is valid and binding on any Alpha Party and any of their respective Subsidiaries that is a party thereto and, to the knowledge of any Alpha Party, each other party thereto and is in full force and effect. There is no default under any Alpha Material Contract by any Alpha Party or any of their respective Subsidiaries or, to the knowledge of any Alpha Party, by any other party, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by any Alpha Party or any of their respective Subsidiaries or, to the knowledge of any Alpha Party, by any other party, in each case except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(c)    No Alpha Party or any of their respective Subsidiaries is party to any Contract that prohibits any Alpha Party from providing to Contura the information described in ‎Section 5.03(c).
(d)    The information set forth under Section 3.17(d) of the Alpha Disclosure Schedule is true and correct in all material respects.
Section 3.18.     Insurance . The Alpha Parties and their respective Subsidiaries are covered by valid and currently effective insurance policies issued in favor of the Alpha Parties and their respective Subsidiaries that are customary and adequate for companies of similar size in the industries and locales in which the Alpha Parties and their Subsidiaries operate. Section 3.18 of the Alpha Disclosure Schedule sets forth, as of the date hereof, a true, correct and complete list of all material insurance policies issued in favor of any Alpha Party, or pursuant to which any Alpha Party or any of their respective Subsidiaries is a named insured or otherwise a beneficiary, as well as any historic incurrence-based policies still in force. With respect to each such insurance policy, (i) the policy is in full force and effect and all premiums due thereon have been paid, (ii) no Alpha Party is in material breach or default, and no Alpha Party or any of their respective Subsidiaries has taken any action or failed to take any action which with notice or the lapse of time would constitute such a material breach or default, or permit termination or modification of, any such policy, and (iii) to the knowledge of any Alpha Party as of the date hereof, no insurer on any such policy has been declared insolvent or placed in receivership, conservatorship or liquidation, and no written notice of cancellation or termination has been received with respect to any such policy.
Section 3.19.     Suppliers and Customers . Section 3.19 of the Alpha Disclosure Schedule sets forth the names of the 10 largest suppliers of the Alpha Parties and their Subsidiaries (as measured by aggregate cost of items or services purchased for the twelve-month period ended on the Balance Sheet Date). To the knowledge of any Alpha Party, no Alpha

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Party or any of their respective Subsidiaries (a) has been notified in writing of any dispute with any such supplier or with any of the 10 largest customers of the Alpha Parties and their Subsidiaries (as measured by revenue for the twelve-month period ended on the Balance Sheet Date) or (b) has been notified in writing by any such customer or supplier that it intends or is threatening to terminate or otherwise adversely alter the terms of its business with any Alpha Party or any of their respective Subsidiaries.
Section 3.20.     Questionable Payments . No Alpha Party or any of their respective Subsidiaries (nor, to the knowledge of any Alpha Party, any of their respective directors, executives, representatives, agents or employees) (a) is using or since July 26, 2016 has used any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) is using or since July 26, 2016 has used any corporate funds for any direct or indirect unlawful payments to any foreign or domestic government officials or employees, (c) is violating or since July 26, 2016 has violated, in any material respect, any provision of the Foreign Corrupt Practices Act of 1977, as amended, (d) since July 26, 2016, has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties, or (e) since July 26, 2016, has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.
Section 3.21.     Interested Party Agreements . As of the date hereof, there are no Contracts between any Alpha Party or any of their respective Subsidiaries, on the one hand, and (i) any holder of equity interests in any Alpha Party, (ii) any current or former director, officer or employee of any Alpha Party or any of their respective Affiliates, other than Contracts relating to compensation or benefits pursuant to any ANR Plan or (iii) any Affiliate or any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any Person described in the foregoing clauses (i) and (ii), on the other hand (each such Contract, an “ Alpha Interested Party Agreement ”).
Section 3.22.     Required Vote of Stockholders . (a) The only vote of the holders of securities of Holdings required by the Holdings Certificate of Incorporation, the Holdings Bylaws, by Law or otherwise to complete the Holdings Merger is the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this Agreement by the affirmative vote of the holders of not less than a majority of the outstanding shares of Holdings Common Stock, voting together as a single class. The adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this Agreement by the vote described in the previous sentence is referred to as the “ Holdings Stockholder Approval. ”
(b)    The only vote of the holders of securities of ANR required by the ANR Certificate of Incorporation, the ANR Bylaws, by Law or otherwise to complete the ANR Merger is the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement by the affirmative vote of the holders of outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock, voting together as a single class, representing a majority of the votes entitled to be cast by all outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock. The adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement by the vote described in the previous sentence is referred to as the “ ANR Stockholder Approval ”, and together with the Holdings Stockholder Approval is referred to as the “ Alpha Stockholder Approvals ”.
Section 3.23.     Takeover Laws, Etc . The Holdings Board and ANR Board have taken appropriate action so that the restrictions on “business combinations” set forth in Section 203 of the DGCL or any other “moratorium,” “control share,” “fair price,” “takeover” or “interested stockholder” Law (any such laws, “ Takeover Laws ”) will not apply with respect to, or as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
Section 3.24.     Opinions of Financial Advisors . Prior to the execution of this Agreement, (i) Moelis & Company (the “ ANR Financial Advisor ”) has delivered to the ANR Board its opinion, to the effect that, as of the date of such opinion and based upon and subject to the assumptions, limitations, qualifications and other matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to the holders of Class C-1 Common Stock and (ii) Berkeley Research Group, LLC (the “ Holdings Financial Advisor ”) has delivered to the Holdings Board its written opinion, dated the date of this Agreement, to the effect that, as of such date and based upon and subject to the assumptions, limitations, qualifications and other matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to the stockholders of Holdings.

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Promptly following receipt of the opinion by the Holdings Board and the ANR Board, a true, correct and complete copy of each opinion will be delivered to Contura for informational purposes only.
Section 3.25.     Brokers; Certain Fees . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by and on behalf of the Alpha Parties or any of their respective Subsidiaries, except as provided in the letter agreements between the applicable Alpha Party and the ANR Financial Advisor or the Holdings Financial Advisor, as applicable, complete and correct copies of which were delivered to Contura prior to the date of this Agreement.
Section 3.26.     Qualified Buyer . Each Alpha Party has determined, in accordance with the terms of the Bankruptcy Plan, that Contura constitutes a Qualified Buyer (as such term is defined in the Bankruptcy Plan), including for all purposes under Section IV.G of the Bankruptcy Plan.
Section 3.27.     No Other Representations; Disclaimer . (a) Except for the representations and warranties made by the Alpha Parties in this Agreement, no Alpha Party or any other Person makes any express or implied representation or warranty with respect to the Alpha Parties or their respective Subsidiaries or their respective business, operations, assets, liabilities, condition (financial or otherwise) or prospects, and the Alpha Parties hereby disclaim any such other representations or warranties, including any representation or warranty regarding merchantability or fitness for a particular purpose. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by the Alpha Parties in this Agreement, no Alpha Party nor any other Person makes or has made any representation or warranty to Contura or any of its Affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to any Alpha Party, any of their respective Subsidiaries or their respective businesses, or (ii) any oral or written information presented to Contura or any of its Affiliates or representatives in the course of their due diligence investigation of the Alpha Parties, the negotiation of this Agreement or in the course of the transactions contemplated hereby.
(b)    Notwithstanding anything contained in this Agreement to the contrary, each Alpha Party acknowledges and agrees that neither Contura nor any other Person has made or is making any representations or warranties whatsoever, express or implied, beyond those expressly given by Contura in this Agreement, including any implied representation or warranty as to the accuracy or completeness of any information regarding Contura furnished or made available to the Alpha Parties, or any of their representatives or any representation or warranty regarding merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, each Alpha Party acknowledges that, except for the representations and warranties made by Contura in this Agreement, no representations or warranties are made by Contura or any other Person with respect to any projections, forecasts, estimates, budgets or prospect information that may have been made available to any Alpha Party or any of their representatives.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CONTURA
Except as disclosed in the correspondingly numbered section of the disclosure letter dated the date of this Agreement and delivered by Contura to ANR with respect to this Agreement immediately prior to the execution of this Agreement (the “ Contura Disclosure Schedule ”) (provided, however, that a matter disclosed in the Contura Disclosure Schedule with respect to one representation or warranty shall also be deemed to be disclosed with respect to each other representation or warranty to the extent it is reasonably apparent from the text of such disclosure that such disclosure applies to or qualifies such other representation or warranty), Contura represents and warrants to each Alpha Party as follows:
Section 4.01.     Organization and Qualification. (a) Contura is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, with all requisite corporate power and authority to own its properties and conduct its business as currently conducted. Each Subsidiary of Contura is a duly organized and validly existing entity in good standing (where applicable) under the Laws of its jurisdiction of organization, with all requisite entity power and authority to own its properties and conduct its business as currently conducted. Contura and each Subsidiary of Contura is duly qualified and in good standing as a foreign corporation or entity authorized to do business in each of the jurisdictions in which the character of the properties owned or held under lease by it or the nature of the business transacted by it makes such qualification necessary, except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.

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(b)    Contura has heretofore made available to ANR true, correct and complete copies of the restated certificate of incorporation and bylaws of Contura as in effect on the date hereof, including all amendments thereto (respectively, the “ Contura Certificate of Incorporation ” and “ Contura Bylaws ”).
(c)    MergerSub 1 is a direct, wholly owned Subsidiary of Contura, does not own any assets other than the capital stock of MergerSub 2 and has been organized solely for the purpose of consummating the transactions contemplated herein. MergerSub 1 does not have, and has never had, any employees, and does not conduct, and has never conducted, any activities, business or other operations, and has incurred no liabilities or obligations, in each case other than those incident to its incorporation and organization and ownership of MergerSub 2’s capital stock and its obligations hereunder. MergerSub 2 is a direct, wholly owned Subsidiary of MergerSub 1, does not own any assets and has been organized solely for the purpose of consummating the transactions contemplated herein. MergerSub 2 does not have, and has never had, any employees, and does not conduct, and has never conducted, any activities, business or other operations, and has incurred no liabilities or obligations, in each case other than those incident to its incorporation and organization and its obligations hereunder.
Section 4.02.     Capitalization . (a) The authorized capital stock of Contura consists of (i) (A) as of the date hereof, 20,000,000 shares of Contura Common Stock and (B) if Contura’s stockholders approve the Contura Charter Amendment, as of the Closing Date, 55,000,000 shares of Contura Common Stock; and (ii) (A) 2,000,000 shares of preferred stock, par value $0.01 per share, of Contura (the “ Contura Preferred Stock ”), of which no Contura Preferred Stock have been designated as to series and (B) if Contura’s stockholders approve the Contura Charter Amendment, as of the Closing Date, 5,000,000 shares of Contura Preferred Stock. As of the close of business on the Capitalization Date, (A) 9,870,350 shares of Contura Common Stock and no shares of Contura Preferred Stock were issued and outstanding, (B) 911,848 shares of Contura Common Stock and no shares of Contura Preferred Stock were held in Contura’s treasury, and (C) 71,968 shares of Contura Common Stock and no shares of Contura Preferred Stock were issuable under the Contura Plans. All of the outstanding shares of Contura Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. As of the close of business on the Capitalization Date, there are 922,280 shares of Contura Common Stock subject to issuance upon exercise of outstanding warrants to purchase shares of Contura Common Stock.
(b)    Section 4.02(b) of the Contura Disclosure Schedule contains a true, correct and complete list, as of the Capitalization Date, of each outstanding option to purchase shares of Contura Common Stock granted pursuant to a Contura Plan (a “ Contura Stock Option ”) and other equity-based award (including under any deferred compensation plan or arrangement) outstanding, the number of shares of Contura Common Stock issuable thereunder or to which such award pertains, the expiration date, and the exercise or conversion price, if applicable, related thereto and, if applicable, the Contura Plan pursuant to which each such Contura Stock Option or other equity-based award was granted. Since the Capitalization Date, Contura has not issued any shares of Contura Common Stock (other than the issuance of Contura Common Stock permitted by Section 5.02 or upon the exercise of Contura Stock Options outstanding on the Capitalization Date in accordance with their terms), has not granted any other Contura Securities or entered into any other agreements or commitments to issue any Contura Securities, and has not split, combined or reclassified any shares of its capital stock.
(c)    Except as set forth in Section 4.02(a) and except for the Contura Stock Options and other equity-based awards set forth in Section 4.02(b) of the Contura Disclosure Schedule, there are no outstanding (i) securities of Contura or any of its Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in Contura, (ii) options, restricted stock warrants, rights or other agreements or commitments to acquire from Contura or any of its Subsidiaries, or obligations of Contura or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) Contura, or bonds, debentures, notes or other evidences of Indebtedness having the right to vote on any matters on which stockholders of Contura may vote, (iii) obligations (contingent or otherwise) of Contura or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in Contura (the items in clauses (i), (ii) and (iii), together with the capital stock of Contura, being referred to collectively as “ Contura Securities ”), or (iv) obligations (contingent or otherwise) of Contura or any of its Subsidiaries to make any payments directly or indirectly based (in whole or in part) on the price or value of any Contura Securities. There are no outstanding obligations, commitments or arrangements, contingent or otherwise, of Contura or any of its Subsidiaries to purchase, redeem or otherwise acquire any Contura Securities. There are no voting trusts or other agreements or understandings to which Contura or any of its Subsidiaries is a party (or, to the knowledge of Contura, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of Contura.

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(d)    Section 4.02(d) of the Contura Disclosure Schedule sets forth a complete and accurate list of the Subsidiaries of Contura. Contura, alone or together with one or more of its wholly owned Subsidiaries, is the record and beneficial owner of all the equity interests of each of its Subsidiaries, in each case free and clear of any Lien (other than Liens arising under applicable securities Laws). With respect to each Subsidiary of Contura, there are no outstanding (i) securities of Contura or any of its Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in any Subsidiary of Contura, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from Contura or any of its Subsidiaries, or obligations of Contura or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) any Subsidiary of Contura, (iii) obligations of Contura or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of Contura (the items in clauses (i), (ii) and (iii), together with the capital stock or other equity interests of such Subsidiaries, being referred to collectively as “ Contura Subsidiary Securities ”), or (iv) obligations of Contura or any of its Subsidiaries to make any payment directly or indirectly based (in whole or in part) on the price or value of any Contura Subsidiary Securities. There are no outstanding obligations, contingent or otherwise, of Contura or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Contura Subsidiary Securities. There are no voting trusts or other agreements or understandings to which Contura or any of its Subsidiaries is a party (or, to the knowledge of Contura, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of any Subsidiary of Contura. Prior to the date hereof, Contura has made available to ANR complete and accurate copies of the charter and bylaws or other organizational documents of each Subsidiary of Contura.
(e)    Contura does not control, directly or indirectly, or have any direct or indirect equity participation or similar interest in any entity which is not a Subsidiary of Contura.
Section 4.03.     Authority for this Agreement; Board Action . (a) Contura, MergerSub 1 and MergerSub 2 (the “ Contura Parties ”) have all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby to which Contura is a party. The execution and delivery of this Agreement by the Contura Parties and the consummation by the Contura Parties of the transactions contemplated hereby have been duly and validly authorized by the board of directors of each Contura Party, as applicable, and no other corporate proceedings on the part of any Contura Party are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, other than the approval of the Contura Charter Amendment. This Agreement has been duly and validly executed and delivered by each Contura Party and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of each Contura Party, enforceable against such Contura Party in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(b)    The board of directors of each Contura Party has (i) determined that this Agreement and the transactions contemplated hereby are advisable and fair to, and in the best interests of, each Contura Party, as applicable, and their respective stockholders, as applicable, and (ii) adopted and approved this Agreement and the transactions contemplated hereby.
Section 4.04.     Consents and Approvals; No Violation . (a) Neither the execution and delivery of this Agreement by the Contura Parties nor the consummation of the transactions contemplated hereby by the Contura Parties will (i) violate or conflict with or result in any breach of any provision of the Contura Certificate of Incorporation or the Contura Bylaws or the certificate of incorporation or bylaws of any other Contura Party, (ii) assuming all consents, approvals and authorizations contemplated by clauses (i) through (iv) of Section 4.04(b) have been obtained, and all filings described in such clauses have been made, in any material respect conflict with or violate any Law applicable to Contura or any of its Subsidiaries or by which any of their respective assets are bound, (iii) violate, conflict with or result in a breach of, or require any consent, waiver or approval under, or result in a default or give rise to any right of termination, cancellation, modification or acceleration (or an event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under, any of the terms, conditions or provisions of any Contract to which Contura or any of its Subsidiaries is a party or by which Contura or any of its Subsidiaries or any of their respective assets are bound, or (iv) result (or, with the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Lien on any asset of Contura or any of its Subsidiaries, except in the case of clauses (iii) and (iv), as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.

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(b)    The execution, delivery and performance of this Agreement by the Contura Parties and the consummation of the transactions contemplated hereby do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except (i) the pre-merger notification requirements under the HSR Act, (ii) the filing with the SEC of the Form S-4 and such other reports and filings as are required under the Exchange Act and the rules and regulations promulgated thereunder, (iii) the filing of the Certificates of Merger and the Contura Charter Amendment with the Secretary of State as required by the DGCL, (iv) such governmental consents, qualifications or filings as are customarily obtained or made in connection with the transfer of interests or the change of control of ownership in coal mining properties, including notices and consents relating to or in connection with mining, reclamation, nuclear material, radio communications and environmental Permits, in each case under the applicable Laws of Virginia, West Virginia, Pennsylvania, Wyoming and the United States of America, and (v) any such consent, approval, authorization, permit, filing, or notification the failure of which to make or obtain would not have or reasonably be expected to be material.
Section 4.05.     Reports; Financial Statements . (a) All of the Subsidiaries of Contura are consolidated for accounting purposes. Contura has delivered to ANR the audited consolidated financial statements (including the related notes thereto) of Contura for the fiscal year ended December 31, 2017 (the “ Contura Financial Statements ”), and the Contura Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Contura and its Subsidiaries as of their respective dates, and the consolidated income, stockholders’ equity, results of operations and changes in consolidated financial position or cash flows for the periods presented therein.
(b)    The records, systems, controls, data and information of Contura and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Contura or their accountants (including all means of access thereto and therefrom), except for any nonexclusive ownership and nondirect control that has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the system of internal accounting controls described below in this Section. Contura has implemented and maintain a system of internal controls that is designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements for external purposes in accordance with GAAP, and such system of internal controls is effective. Contura has disclosed, based on its most recent evaluation of its system of internal controls prior to the date of this Agreement, to their outside auditors and the audit committee of the Contura Board (A) any significant deficiencies and material weaknesses in the design or operation of its internal controls that would reasonably be expected to adversely affect Contura’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Contura’s internal controls over financial reporting. Prior to the date hereof, a true, correct and complete summary of any such disclosures made to Contura’s auditors and the audit committee of the Contura Board has been provided to ANR.
(c)    Since July 26, 2016, neither Contura nor any of its Subsidiaries nor, to the knowledge of Contura, any director, officer, employee, auditor, accountant or representative of Contura or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of Contura or any of their Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Contura or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and no attorney representing Contura or any of its Subsidiaries, whether or not employed by Contura or any of its Subsidiaries, has reported evidence of a material violation of securities Law, breach of fiduciary duty or similar violation by Contura or any of its Subsidiaries or any of its officers, directors, employees or agents to the Contura Board or any committee thereof or to any director or officer of Contura or any of its Subsidiaries.
(d)    Neither Contura nor any of its Subsidiaries has any liabilities of any nature, whether accrued, absolute, fixed, contingent or otherwise, known or unknown, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP, other than liabilities (i) as and to the extent reflected or reserved against on the consolidated balance sheet of Contura dated as of the Balance Sheet Date included in the Contura Financial Statements, (ii) incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date, or (iii) that would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.

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Section 4.06.     Absence of Certain Changes . (a) Since the Balance Sheet Date, Contura and its Subsidiaries have conducted their business only in the ordinary course consistent with past practice, and neither Contura nor any of its Subsidiaries has taken any action since the Balance Sheet Date that, if taken after the date of this Agreement without the prior written consent of Alpha, would constitute a breach of Section 5.02.
(b)    Since the Balance Sheet Date, there has not been any change, effect, event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
Section 4.07.     Information Supplied; Joint Proxy Statement . None of the information supplied or to be supplied in writing by or on behalf of Contura for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Joint Proxy Statement will, at the date such Joint Proxy Statement is first mailed to the Alpha Parties’ stockholders or at the time of the Alpha Special Meetings, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing provisions of this Section 4.07, no representation or warranty is made by Contura with respect to information or statements made or incorporated by reference in the Form S-4 or the Joint Proxy Statement that were not supplied in writing by or on behalf of Contura.
Section 4.08.     Employee Benefits Matters . (a) Section 4.08(a) of the Contura Disclosure Schedule contains a true, correct and complete list of all Contura Plans in effect on the date hereof. Prior to the date of this Agreement, Contura has provided or made available to Alpha true, correct and complete copies as in effect on the date hereof of each of the following with respect to each such Contura Plan, as applicable: (i) the plan document or agreement or, with respect to any Contura Plan that is not in writing, a description of the material terms thereof; (ii) any summary plan description required to be furnished to participants pursuant to ERISA (iii) the most recent annual report, actuarial report, financial report and/or communication to the U.S. Department of Labor or the Pension Benefit Guaranty Corporation, if any; (iv) all amendments or modifications to any such documents; (v) the most recent determination letter received from the Internal Revenue Service with respect to each Contura Plan that is intended to be a “qualified plan” under Section 401 of the Code; and (vi) the most recent required Internal Revenue Service Form 5500, including all schedules thereto.
(b)    Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, with respect to each Contura Plan, (i) since July 26, 2016, all expenses, contributions, premiums or payments required to be made to, under or with respect to such Contura Plan have been timely made and all amounts properly accrued to date or as of the Closing as liabilities of Contura or any of its Subsidiaries which are not yet due have been properly recorded on the books of Contura and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of Contura, (ii) since July 26, 2016, each such Contura Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) and intended to qualify under Section 401 of the Code has received a favorable determination letter from the Internal Revenue Service with respect to such qualification, and, to the knowledge of Contura, nothing has occurred since the date of such letter that has affected, or would reasonably be expected to adversely affect, such qualification, (iii) since July 26, 2016, with respect to any Contura Plan maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied, (iv) there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of Contura, threatened or anticipated with respect to such Contura Plan, any fiduciaries of such Contura Plan with respect to their duties to any Contura Plan, or against the assets of such Contura Plan or any trust maintained in connection with such Contura Plan, (v) since July 26, 2016, such Contura Plan has been operated and administered in compliance in all material respects with its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of Contura there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the posting of security with respect to an Contura Plan or the imposition of any pledge, lien, security interest or encumbrance on the assets of Contura or any of its Subsidiaries or any of their respective ERISA Affiliates under ERISA or the Code, or similar Laws of foreign jurisdictions.
(c)    Neither Contura nor any of its Subsidiaries nor any of their ERISA Affiliates, (i) has, since July 26, 2016, sponsored, maintained or contributed to, or has ever had any obligation to contribute to, (A) any “employee benefit plan” within the meaning of Section 3(3) of ERISA that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code or (B) a “multiemployer plan” within the meaning of Section 3(37) and 4001(a)(3) of ERISA or a “multiple employer plan” within the meaning of Sections 4063/4064 of ERISA or Section 413(c) of the Code, or (ii) has, since July 26, 2016, incurred

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or reasonably expects to incur any direct or indirect liability pursuant to Title IV of ERISA (including any Controlled Group Liability).
(d)    To the knowledge of Contura, no Contura Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(e)    Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of Contura or any of its Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(f)    To the knowledge of Contura, all options have been granted in compliance with the terms of the applicable Contura Plans, with applicable Law, and with the applicable provisions of the Contura Certificate of Incorporation or Contura Bylaws as in effect at the applicable time.
(g)    Each Contura Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with applicable Law, including Section 409A of the Code.
(h)    Contura has no obligation to gross-up, indemnify or otherwise reimburse any current or former Contura employee, consultant, director or individual independent contractor (each, a “ Contura Service Provider ”) for any Tax incurred by such individual, including under Section 409A or 4999 of the Code.
(i)    Contura has no current or projected liability for, and no Contura Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any Contura Service Provider (other than coverage mandated by applicable Law, including COBRA).
Section 4.09.     Employees . (a) Section 4.09(a) of the Contura Disclosure Schedule sets forth each collective bargaining agreement or any labor union contract with respect to employees in the United States to or by which Contura or its Subsidiaries is a party or bound. A true and correct copy of each such agreement has been provided to ANR, together with a true and correct copy of all recall panels. There are, and since July 26, 2016 there have been no actual or, to the knowledge of Contura, threatened, labor strikes, disputes, walkouts, work stoppages, slowdowns, or lockouts with respect to employees of Contura or its Subsidiaries. No material or class action labor grievance or arbitration demand or proceeding, or unfair labor practice charge or proceeding, whether or not filed pursuant to a collective bargaining agreement, has been filed since July 26, 2016, is pending or, to the knowledge of Contura, is threatened against Contura or its Subsidiaries.
(b)    Contura and its Subsidiaries are, and since July 26, 2016 have been, in all material respects in compliance with all applicable local, state, federal and foreign Laws relating to labor and employment, including but not limited to Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations. There are, and since July 26, 2016 there have been, no material complaints, lawsuits, arbitrations, administrative proceedings, or other Proceedings pending or, to the knowledge of Contura, threatened against Contura or any of its Subsidiaries brought by or on behalf of or material settlements entered into by Contura with any applicant for employment, any current or former Contura Service Provider, any person alleging to be a current or former Contura Service Provider, any class of the foregoing, or any Governmental Entity, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment or engagement, or alleging any other discriminatory, wrongful or tortuous conduct in connection with the employment or service relationship.
(c)    Since July 26, 2016, neither Contura nor any of its current Subsidiaries has incurred any liability or obligation which remains unsatisfied under WARN.

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Section 4.10.     Litigation . (a) There is no Proceeding pending (or, to the knowledge of Contura, threatened), nor, to the knowledge of Contura, is any investigation by any Governmental Entity pending or threatened (other than any such Proceeding or governmental investigation that challenges or seeks to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby), to which Contura or any of its Subsidiaries is a party or against Contura or any of its Subsidiaries or any of its or their properties or assets that (i) involves an amount in controversy in excess of $500,000, (ii) seeks injunctive or other non-monetary relief, or (iii) would have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect. As of the date hereof, there are no Proceedings pending or, to the knowledge of Contura, threatened, nor, to the knowledge of Contura, are there any investigations by any Governmental Entity pending or threatened, against Contura or any of its Subsidiaries challenging or seeking to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby. Neither Contura nor any of its Subsidiaries nor any of their respective properties or assets is subject to any outstanding order, writ, injunction or decree of any Governmental Entity, except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(b)    Section 4.10(b) of Contura Disclosure Schedule sets forth an accurate and complete list of each Proceeding or governmental investigation resolved or settled since July 26, 2016 and prior to the date of this Agreement and requiring payment by Contura or any of its Subsidiaries in excess of $500,000 or involving the imposition on Contura or any of its Subsidiaries of injunctive or other non-monetary relief.
(c)    To the knowledge of Contura, (i) no officer or director of Contura or any of its Subsidiaries is a defendant in any Proceeding or governmental investigation in connection with his or her status as an officer or director of Contura or any of its Subsidiaries, and (ii) no such Proceeding or governmental investigation is threatened in writing.
Section 4.11.     Tax Matters . (a) All material Tax Returns required by applicable Law to be filed with any Taxing Authority by or with respect to Contura or any of its Subsidiaries since July 26, 2016 have been filed when due (taking into account extensions validly obtained) and all such Tax Returns are, or shall be at the time of filing, true, correct and complete in all material respects.
(b)    Contura and its Subsidiaries have paid (or have had paid on their behalf) or have withheld and remitted to the appropriate Taxing Authority all material Taxes attributable to Contura or any of its Subsidiaries that were due and payable since July 26, 2016 or where payment is not yet due, have established an adequate accrual, in accordance with GAAP and past customs and practice of Contura and its Subsidiaries, for all Taxes through the end of the last period for which the Contura and its Subsidiaries ordinarily record items on their respective books and records.
(c)    There is no audit, investigation, claim, suit, proceeding or assessment in respect of Taxes or material Tax assets now pending or, to the knowledge of Contura, threatened in writing against Contura or any of its Subsidiaries.
(d)    There are no agreements or arrangements in effect to extend the period of limitations for the assessment or collection of any Tax for which Contura or any of its Subsidiaries may be liable, and there is no currently effective “closing agreement” pursuant to Section 7121 of the Code (or any similar provision of foreign, state or local Law).
(e)    Since July 26, 2016, no claim has been made by any Taxing Authority in a jurisdiction where neither Contura nor any of its Subsidiaries has filed Tax Returns that Contura or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(f)    Section 4.11(f) of the Contura Disclosure Schedule contains a list of all jurisdictions (whether foreign or domestic) in which Contura or any of its Subsidiaries currently file Tax Returns.
(g)    During the five-year period ending on the date hereof, neither Contura nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(h)    Neither Contura nor any of its Subsidiaries has engaged in a “listed transaction” (as defined in Treasury Regulation Section 1.6011-4).
(i)    Contura and its Subsidiaries have withheld from payments to their employees, independent contractors, creditors, stockholders and any other applicable person (and timely paid to the appropriate Taxing Authority) all material amounts required by applicable Tax Law to be withheld and paid for all periods since July 26, 2016 through the date of this

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Agreement, except with respect to amounts that are being contested in good faith by appropriate proceedings, and have complied in all material respects with all applicable Laws relating to information reporting.
(j)    Neither Contura nor any of its Subsidiaries has taken or agreed to take any action, or are aware of any fact or circumstance, that would reasonably be expected to prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(k)    Section 4.11(k) of the Contura Disclosure Schedule contains a list of all Tax sharing and Tax indemnification agreements entered into after July 26, 2016 and currently in effect as to which any Person other than Contura or any of its Subsidiaries is a party.  There is no claim now pending or, to the knowledge of an Contura Party, threatened in writing against Contura or any of its Subsidiaries for payment or indemnification in respect of Taxes pursuant to any such Tax sharing or Tax indemnification agreement.  For purposes of this representation, commercial agreements or Contracts not primarily related to Taxes shall not be considered Tax sharing or Tax indemnification agreements.
Section 4.12.     Compliance with Law . Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, Contura and each of its Subsidiaries is and has been since July 26, 2016 in compliance with all Laws applicable to the conduct of the business of Contura or any of its Subsidiaries or by which any assets of Contura or any of its Subsidiaries are bound or affected.
Section 4.13.     Permits; Surety Bonds . (a) Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect:
(i)    Contura and each of its Subsidiaries have all Permits required under applicable Laws to own, lease, develop or operate their real properties and assets or to conduct their businesses as conducted on the date hereof (including Permits relating to underground mining, surface mining, highwall mining and auger mining, processing, sale or transporting of coal and coal byproducts, or activities defined under the Surface Mining Control and Reclamation Act of 1977, as amended, as “surface coal mining operations”) (collectively, the “ Contura Permits ”) and each Contura Permit is in full force and effect;
(ii)    each of Contura and each of its Subsidiaries is and since July 26, 2016 has been in compliance with the terms and conditions of the Contura Permits; and
(iii)    since July 26, 2016, neither Contura nor any of its Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw, modify in any adverse respect or limit any of the Contura Permits and, to the knowledge of Contura, there are no circumstances or conditions providing grounds for any suspension, revocation, withdrawal, adverse modification or limitation on any of the Contura Permits.
(b)    Since July 26, 2016, neither Contura nor any of its Subsidiaries has been notified in writing by the Federal Office of Surface Mining or the agency of any state administering the Surface Mining Control and Reclamation Act of 1977, as amended (or any comparable state statute) that it is (i) ineligible to receive additional surface mining Permits or (ii) under investigation to determine whether its eligibility to receive such Permits should be “permit blocked.”
(c)    Except as would not have or reasonably be expected to have, individually or in the aggregate, an Contura Material Adverse Effect:
(i)    there are no applications for new Permits (for the avoidance of doubt, not including amendments, renewals, extensions or other modifications of existing Contura Permits) other than those set forth in Section 4.13(c) of the Contura Disclosure Schedule (the “ Contura Permit Applications ”);
(ii)    each of the Contura Permit Applications has been made in accordance with applicable Laws, subject to such changes as may be requested by a Governmental Entity as part of the permit review process; and
(iii)    except for changes requested by a Governmental Entity as part of the permit review process, which changes can be readily implemented by Contura or its Subsidiaries, as applicable, neither Contura nor any of its Subsidiaries has received any written notice from any Governmental Entity indicating that any of the Contura Permit Applications will not be granted.

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(d)    Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, Contura and its Subsidiaries have posted all Surety Bonds required to be posted in connection with their operations and pursuant to the Contura Permits. All Surety Bonds posted by each of Contura and its Subsidiaries in connection with its respective operations are defined as the “ Contura Surety Bonds. ” Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, each of Contura and its Subsidiaries is in compliance with all Contura Surety Bonds applicable to it.
(e)    Without limiting the generality of the foregoing, the operation of the coal mining and processing operations of Contura and its Subsidiaries and the state of reclamation with respect to each of their Contura Permits is “current” with respect to the reclamation obligations required by the Contura Permits and otherwise are in compliance with the Contura Permits and all applicable mining, reclamation and other similar Laws, except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
Section 4.14.     Environmental Matters . (a) Except as would not reasonably be expected to be material, individually or in the aggregate, each of Contura and its Subsidiaries (x) is and since July 26, 2016 has been in compliance with applicable Environmental Laws and (y) holds and is and since July 26, 2016 has been in compliance with all Permits required under Environmental Laws for the conduct of its business and activities as currently conducted (the “ Contura Environmental Permits ”). All Contura Environmental Permits are in full force and effect, and all applications, notices or other documents have been timely filed to effect timely renewal, issuance or reissuance of such Contura Environmental Permits.
(b)    Neither Contura nor any of its Subsidiaries is the subject of any Environmental Claim, and no Environmental Claim is pending or, to the knowledge of Contura, threatened against Contura or any of its Subsidiaries or against any Person whose liability for the Environmental Claim was retained or assumed by Contract or by operation of Law or pursuant to any order issued by any Governmental Entity, in each case, by Contura or any of its Subsidiaries.
(c)    No Hazardous Materials are present at, on, under or are emanating from any properties or facilities currently leased, operated or used or, to the knowledge of Contura, previously owned, leased, operated or used, in circumstances that would reasonably be expected to form the basis for an Environmental Claim against, or a requirement for investigation pursuant to applicable Environmental Law by, Contura or any of its Subsidiaries.
(d)    To the knowledge of Contura, no property presently owned, leased or operated by Contura or any of its Subsidiaries contains any (x) landfills, surface impoundments, disposal areas or radioactive materials (except to the extent such land use or material is allowed pursuant to applicable Permits), (y) underground storage tanks or aboveground storage tanks or (z) asbestos or asbestos-containing material, polychlorinated biphenyls, and no such property is listed or proposed for listing on the National Priorities List or any similar list issued by a Governmental Entity of sites where remedial action is or is reasonably expected to be necessary.
(e)    Neither Contura nor its Subsidiaries has Released, disposed of, or arranged to dispose of, any Hazardous Materials in a manner, or to a location, that would reasonably be expected to result in an Environmental Claim.
(f)    No material Lien imposed by any Governmental Entity having jurisdiction pursuant to any Environmental Law is currently outstanding as to any assets owned, leased or operated by Contura or any of its Subsidiaries except for Liens imposed in connection with any Contura Surety Bonds.
(g)    Except for Contura Surety Bonds posted in the ordinary course of business and the surety agreements related thereto, no financial assurance obligation is in force as to any property or facility owned, leased or operated by Contura or any of its Subsidiaries.
(h)    Contura and its Subsidiaries have no obligation or liability by Contract relating to or arising under Environmental Law.
Section 4.15.     Intellectual Property .
(a)    Contura and its Subsidiaries own or possess, or are validly licensed or otherwise have the right to obtain ownership or possession and to currently use, all Intellectual Property Rights used or held for use in, or otherwise reasonably necessary for, the conduct of the business of Contura or any of its Subsidiaries (the “ Contura Intellectual Property ”).

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(b)    Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, (i) Contura and its Subsidiaries are the sole and exclusive owners of all Intellectual Property Rights owned or purported to be owned by Contura or by a Subsidiary of Contura (collectively, “ Contura Owned Intellectual Property ”) and no such Contura Owned Intellectual Property (A) is the subject of any pending or, to the knowledge of Contura, threatened interference, opposition or other Proceeding or (B) has been adjudged invalid or unenforceable in whole or part, (ii) the conduct of the business of Contura or their respective Subsidiaries does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, any Intellectual Property Rights of any third party, and (iii) the execution, delivery and performance of this Agreement by Contura and the consummation of the transactions contemplated hereby will not cause the forfeiture or termination or give rise to a right of forfeiture or termination of any of the Contura Intellectual Property, impair the right of Contura or a Subsidiary of Contura to make, use, sell, license, dispose of or otherwise exploit, or to bring any action for the infringement, misappropriation or other violation of, any Contura Owned Intellectual Property, or impair the right of Contura or any of its Subsidiaries to use the Contura Owned Intellectual Property in the conduct of their businesses as currently conducted.
(c)    Contura and its Subsidiaries have used commercially reasonable efforts to maintain, protect, defend and enforce all material Contura Owned Intellectual Property; provided that, without limiting Section 5.02, nothing herein shall be deemed to have required Contura or its Subsidiaries to register or apply to register or to maintain, protect, defend or enforce any Contura Owned Intellectual Property, except where the failure to do so would result in a Contura Material Adverse Effect.
(d)    Neither Contura nor any of its Subsidiaries is experiencing any material defects in the Computer Software or hardware used in its business as it is currently conducted, including any material error or omission in the processing of any transactions.
Section 4.16.     Real Property; Personal Property . (a) For the purpose of the Agreement:
(i)    “ Contura Owned Real Property ” means all real property and other right, title and interests in land, including coal, mineral, mining, water and surface rights, easements, rights of way and options, owned by Contura or any of its Subsidiaries, together with all improvements and fixtures located thereon or appurtenant thereto;
(ii)    “ Contura Leased Real Property ” means all real property and other right, title and interests in land, including coal, mineral, mining water and surface rights, easements, rights of way and options, leased, subleased, licensed or otherwise used by Contura or any of its Subsidiaries as lessee, licensee or grantee (each such lease, sublease, license or other use agreement, a “ Contura Lease ”); and
(iii)    “ Contura Real Property ” means the Contura Owned Real Property and the Contura Leased Real Property.
(b)    Section 4.16(b) of the Contura Disclosure Schedule sets forth a true, accurate and complete list of all Contura Owned Real Property with a value of $1,000,000 or more. (i) The Contura Real Property includes all of the land, buildings, structures and fixtures located thereon and all easements, rights of way, options, coal, mineral, mining, water, surface and other rights and interests appurtenant thereto necessary for the use by Contura and its Subsidiaries in the conduct of their business as currently conducted in all material respects; (ii) Contura or one of its Subsidiaries has good and marketable title to, or has a valid leasehold interest in, all Contura Real Property (subject in all cases to Permitted Liens), except where the failure to have such title or interest could not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect; (iii) all Contura Owned Real Property is owned by Contura or one of its Subsidiaries, free and clear of all Liens other than Permitted Liens or any other Liens that would not have, individually or in the aggregate, a Contura Material Adverse Effect; (iv) Contura or one of its Subsidiaries has a valid leasehold interest in or easement or other property interest in, and to, and enjoys peaceful and undisturbed possession of all Contura Leased Real Property on which it is currently conducting operations and, except where the failure to have such possession would not have, individually or in the aggregate, a Contura Material Adverse Effect, Contura has complied with all of its obligations under such leases, and all such Leases are in full force and effect and are free and clear of all Liens other than Permitted Liens; and (v) Contura or one of its Subsidiaries has adequate rights of ingress and egress to all Contura Real Property on which it is currently conducting operations, except where the failure to have such access would not have, individually or in the

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aggregate, a Contura Material Adverse Effect, sufficient to access and exercise its rights with respect to such Contura Real Property.
(c)    With respect to the Contura Real Property:
(i)    to the knowledge of Contura, there are no pending or threatened Proceedings to take all or any portion of the Contura Real Property or any interest therein by eminent domain or any condemnation proceeding or any sale or disposition in lieu thereof;
(ii)    there are no outstanding options, rights of reverter, rights of first offer, rights of first refusal or contracts granted by Contura or any of its Subsidiaries to purchase or lease any material portion of such Contura Real Property (other than such options or rights granted in the ordinary course of business);
(iii)    there are no leases or other contracts granting to any Person (other than Contura or any of its Subsidiaries) the right of use or occupancy of any material portion of any Contura Real Property, other than those granted or incurred in the ordinary course of business, that do not, in the aggregate, interfere in any material respect with the ordinary conduct of the business of Contura or its Subsidiaries at the Contura Real Property affected thereby;
(iv)    all material buildings, structures, fixtures, building systems and equipment included in the Contura Real Property that are currently in use (the “ Contura Improvements ”) are in operating condition in all material respects, subject to reasonable wear and tear, and, to the knowledge of Contura, there are no facts or conditions affecting any of the Contura Improvements that would materially and adversely interfere with the use or occupancy of the Contura Improvements or any portion thereof in the operation of the business of Contura and its Subsidiaries as presently conducted thereon;
(v)    to the knowledge of Contura, the present use of the Contura Real Property (including the Contura Improvements) is, and the Contura Improvements themselves are, in substantial conformity with all recorded deeds, restrictions of record and other agreements affecting such Contura Real Property, and to the knowledge of Contura there are no material violations thereof;
(vi)    to the knowledge of Contura, there are no currently proposed or pending assessments materially and adversely affecting the Contura Real Property, whether for public improvements or otherwise;
(vii)    there are no outstanding Contracts or other obligations (including options) entered into by Contura or any of its Subsidiaries for the sale, exchange, encumbrance or transfer of any of the Contura Real Property, or any portion of it, that are material to Contura and its Subsidiaries taken as a whole; and
(viii)    to the knowledge of Contura, with respect to each Contura Real Property on which significant surface Contura Improvements are located, there are no rights or claims of parties in possession not shown by the public records, encroachments, overlaps, boundary line disputes or other matters which would be disclosed by an accurate survey or inspection of the premises except as could not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(d)    To the knowledge of Contura, the coal reserves currently mined by Contura and its Subsidiaries that are owned or leased by any of them are not subject to the mining rights of any other Person with respect to such coal reserves and none of Contura or its Subsidiaries has received a notice of claim to such effect, and Contura has sufficient rights to access and mine such coal reserves.
(e)    Contura and its Subsidiaries are in possession of and have good and marketable title to, or have valid leasehold interests in, all tangible personal property used in the business of Contura and its Subsidiaries, except as could not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect. All such tangible personal property is owned by Contura or one of its Subsidiaries, free and clear of all Liens other than Permitted Liens, or, to the knowledge of Contura, is leased under a valid and subsisting lease and, in each case, is in operating condition, ordinary wear and tear excepted.

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Section 4.17.     Material Contracts . (a) Section 4.17(a) of Contura Disclosure Schedule lists, and Contura has made available to ANR prior to the date of this Agreement, true, correct and complete copies of, any of the following Contracts to which Contura or any of its Subsidiaries is a party or by which Contura, any of its Subsidiaries or any of their respective assets is bound, as of the date hereof:
(i)    that would be required to be filed by Contura as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act if Contura were subject to the filing or disclosure requirements under Regulation S-K under the Securities Act, or that would be required to be disclosed by Contura on a Current Report on Form 8-K if Contura were subject to the disclosure requirements under the Exchange Act;
(ii)    that contains covenants that limit the ability of Contura or any of its Subsidiaries to compete in any business or with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that would reasonably be expected to be material;
(iii)    that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation or control of any partnership or joint venture or similar entity or arrangement (other than any partnership or limited liability company operating agreement of a direct or indirect wholly-owned Subsidiary of Contura) or pursuant to which Contura or any of its Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(iv)    that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case, that is material to the business of Contura and its Subsidiaries, taken as a whole;
(v)    that relates to (A) Indebtedness under which Contura and/or any of its Subsidiaries has outstanding obligations in excess of $1,000,000 or (B) conditional or similar sale arrangements in connection with which the aggregate actual or contingent obligations of Contura and its Subsidiaries under such Contract are greater than $1,000,000;
(vi)    under which (A) to the knowledge of Contura, any Person has guaranteed any liabilities or obligations of Contura or its Subsidiaries (other than any such guarantees by Contura or its Subsidiaries), in case of each such liability or obligation, in an amount in excess of $1,000,000, or (B) Contura or any of its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than Contura or any of its Subsidiaries);
(vii)    for the purchase and sale of coal under which (x) the aggregate amounts to be paid by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period;
(viii)    under which (x) the aggregate amounts to be paid by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period, in each case, other than (A) the Contura Material Contracts described in Section 4.17(a)(vii) and (B) purchase orders for the purchase of goods or services in the ordinary course of business;
(ix)    any Contura Interested Party Agreement;
(x)    that relates to the ownership, lease or use of space at Contura’s headquarters at 340 Martin Luther King Jr. Blvd., Bristol, TN 37620;

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(xi)    any Contura Lease involving royalty payments of $500,000 or more per year;
(xii)    which is (i) a written employment agreement with any Contura Service Provider that is not terminable on sixty (60) days' notice or less without penalty, liability or premium (including severance due upon a termination of employment) or (ii) a change in control, transaction bonus, retention bonus or other similar agreement with any Contura Service Provider that requires a payment as a result, either alone or in combination with any other event, of the completion of the transactions contemplated hereby;
(xiii)    under which Contura or any Subsidiary thereof has granted or received a license or sublicense with respect to any Intellectual Property Right that is material to the operation of the business of Contura or such Subsidiary, and for this purpose, specifically excluding any (A) non-exclusive, end-user license for computer software that is generally commercially available (except if the failure of Contura or such Subsidiary to have such non-exclusive end-user license would result in a Contura Material Adverse Effect) and (B) non-exclusive license or sublicense granted by Contura or any Subsidiary thereof in the ordinary course of business consistent with past practice;
(xiv)    that is otherwise material to Contura and its Subsidiaries; or
(xv)    that would or would reasonably be expected to prevent or materially delay Contura’s ability to consummate the Mergers or the other transactions contemplated by this Agreement.
Each Contract of the type described in clauses (i) through (xv) is referred to herein as an “ Contura Material Contract. ”
(b)    Each Contura Material Contract is valid and binding on Contura and any Subsidiary of Contura that is a party thereto and, to the knowledge of Contura, each other party thereto and is in full force and effect. There is no default under any Contura Material Contract by Contura or any of its Subsidiaries or, to the knowledge of Contura, by any other party, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Contura or any of its Subsidiaries or, to the knowledge of Contura, by any other party, in each case except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
Section 4.18.     Insurance . Contura and its Subsidiaries are covered by valid and currently effective insurance policies issued in favor of Contura and its Subsidiaries that are customary and adequate for companies of similar size in the industries and locales in which Contura and its Subsidiaries operate. Section 4.18 of the Contura Disclosure Schedule sets forth, as of the date hereof, a true, correct and complete list of all material insurance policies issued in favor of Contura, or pursuant to which Contura or any of its Subsidiaries is a named insured or otherwise a beneficiary, as well as any historic incurrence-based policies still in force. With respect to each such insurance policy, (i) the policy is in full force and effect and all premiums due thereon have been paid, (ii) Contura is not in material breach or default, and neither Contura nor any of its Subsidiaries has taken any action or failed to take any action which with notice or the lapse of time would constitute such a material breach or default, or permit termination or modification of, any such policy, and (iii) to the knowledge of Contura as of the date hereof, no insurer on any such policy has been declared insolvent or placed in receivership, conservatorship or liquidation, and no notice of cancellation or termination has been received with respect to any such policy.
Section 4.19.     Suppliers and Customers . Section 4.19 of the Contura Disclosure Schedule sets forth the names of the 10 largest suppliers of Contura and its Subsidiaries (as measured by aggregate cost of items or services purchased for the twelve-month period ended on the Balance Sheet Date). To the knowledge of Contura, neither Contura nor any of its Subsidiaries (a) has been notified in writing of any dispute with any such supplier or with any of the 10 largest customers of Contura and its Subsidiaries (as measured by revenue for the twelve-month period ended on the Balance Sheet Date) or (b) has been notified in writing by any such customer or supplier that it intends or is threatening to terminate or otherwise adversely alter the terms of its business with Contura or any of its Subsidiaries.
Section 4.20.     Questionable Payments . Neither Contura nor any of its Subsidiaries (nor, to the knowledge of Contura, any of their respective directors, executives, representatives, agents or employees) (a) is using or since July 26, 2016 has used any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) is using or since July 26, 2016 has used any corporate funds for any direct or indirect unlawful payments to any foreign or domestic government officials or employees, (c) is violating or since July 26, 2016 has violated, in any material respect, any provision of the Foreign Corrupt Practices Act of 1977, as amended, (d) since July 26, 2016, has established or

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maintained, or is maintaining, any unlawful fund of corporate monies or other properties, or (e) since July 26, 2016, has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.
Section 4.21.     Interested Party Transactions . As of the date hereof, there are no Contracts between Contura or any of its Subsidiaries, on the one hand, and (i) any holder of equity interests in Contura, (ii) any current or former director, officer or employee of Contura or any of its Affiliates, other than Contracts relating to compensation or benefits pursuant to any Contura Plan or (iii) any Affiliate or any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any Person described in the foregoing clauses (i) and (ii), on the other hand (each such Contract, a “ Contura Interested Party Agreement ”).
Section 4.22.     Required Vote of Contura Stockholders . The only vote of the holders of securities of Contura required by the Contura Certificate of Incorporation, the Contura Bylaws, by Law or otherwise to complete the transactions contemplated by this Agreement is the approval of the Contura Charter Amendment by the holders of not less than a majority of the outstanding shares of Contura Common Stock. The approval of the Contura Charter Amendment as described in the previous sentence is referred to as the “ Contura Stockholder Approval. ”
Section 4.23.     Opinion of Financial Advisor . Prior to the execution of this Agreement, Ducera Securities LLC has delivered to the Contura Board its written opinion, dated the date of this Agreement, to the effect that, as of such date and based upon and subject to the assumptions, limitations, qualifications and other matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to Contura. Promptly following receipt of the opinion by the Contura Board, a true, correct and complete copy of the opinion will be delivered to ANR for informational purposes only.
Section 4.24.     Brokers; Certain Fees . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by and on behalf of Contura or any of its Subsidiaries, except as provided in the letter agreements (i) between Contura and Ducera Securities LLC and (ii) between Contura and Jefferies LLC, in each case relating to the Mergers.
Section 4.25.     No Other Representations; Disclaimer . (a) Except for the representations and warranties made by Contura in this Agreement, neither Contura nor any other Person makes any express or implied representation or warranty with respect to Contura or its Subsidiaries or their respective business, operations, assets, liabilities, condition (financial or otherwise) or prospects, and Contura hereby disclaims any such other representations or warranties, including any representation or warranty regarding merchantability or fitness for a particular purpose. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by Contura in this Agreement, neither Contura nor any other Person makes or has made any representation or warranty to any Alpha Party or any of their Affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to Contura, any of its Subsidiaries or their respective businesses, or (ii) any oral or written information presented to any Alpha Party or any of their Affiliates or representatives in the course of their due diligence investigation of Contura, the negotiation of this Agreement or in the course of the transactions contemplated hereby.
(b)    Notwithstanding anything contained in this Agreement to the contrary, Contura acknowledges and agrees that no Alpha Party or any other Person has made or is making any representations or warranties whatsoever, express or implied, beyond those expressly given by the Alpha Parties in this Agreement, including any implied representation or warranty as to the accuracy or completeness of any information regarding any Alpha Party furnished or made available to Contura or any of its representatives or any representation or warranty regarding merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, Contura acknowledges that, except for the representations and warranties made by any Alpha Party in this Agreement, no representations or warranties are made by any Alpha Party or any other Person with respect to any projections, forecasts, estimates, budgets or prospect information that may have been made available to Contura or any of its representatives.
ARTICLE 5
COVENANTS
Section 5.01.     Interim Undertakings of the Alpha Parties . Except as expressly permitted or required by this Agreement or as otherwise required by applicable Law or as set forth in Section 5.01 of the Alpha Disclosure Schedule or as consented to in writing by Contura (such consent not to be unreasonably withheld, delayed or conditioned), during the period

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from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, each Alpha Party shall, and shall cause each of their respective Subsidiaries to, conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and, to the extent consistent therewith, each Alpha Party shall, and shall cause each of their respective Subsidiaries to, use its commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of its current officers and key employees, and to preserve the goodwill of and maintain satisfactory relationships with those Persons having material business relationships with any Alpha Party or any of their respective Subsidiaries. Without limiting the generality of the foregoing and except as otherwise expressly permitted or required in this Agreement or as otherwise required by applicable Law or as set forth in Section 5.01 of the Alpha Disclosure Schedule, during the period from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, without the prior written consent of Contura (such consent not to be unreasonably withheld, delayed or conditioned), each Alpha Party will not and will not permit any of their respective Subsidiaries to:
(a)    propose to stockholders or adopt any amendments to the Holdings Certificate of Incorporation, the Holdings Bylaws, the ANR Certificate of Incorporation, the ANR Bylaws or the articles of incorporation, bylaws or other governing documents of any Subsidiary of any Alpha Party, other than amendments or changes to any such documents of the Subsidiaries of the Alpha Parties in the ordinary course of business consistent with past practice;
(b)    issue, sell, grant options or rights to acquire, pledge, or propose the issuance, sale, grant of options or rights to acquire or pledge of, any Alpha Securities or Alpha Subsidiary Securities (other than the issuance of shares or other equity interests or rights by a wholly-owned Subsidiary of an Alpha Party to an Alpha Party or another wholly-owned Subsidiary of an Alpha Party), or grant any awards or bonuses that may be settled in, or the value of which is linked directly or indirectly to the price or value of, any Alpha Securities or securities of any Subsidiary of any Alpha Party, except (i) to the extent required under any ANR Plan and (ii) issuances of shares of Class C-1 Common Stock upon the exercise of ANR Stock Options or upon the vesting of ANR RSUs, in each case outstanding on the date hereof and in accordance with their terms;
(c)    acquire or agree or offer to acquire, by merger, consolidation or through any other business combination, or by purchasing any equity interest in or any security convertible into or exchangeable for any equity interest in or all or a portion of the assets of, any Person, except for (i) any merger or business combination of any wholly-owned Subsidiary of ANR into or with any other wholly-owned Subsidiary of ANR and (ii) any other mergers, consolidations, business combinations or purchases of securities or assets involving consideration (including assumed Indebtedness) not in excess of $2,000,000 in the aggregate for all such mergers, consolidations, business combinations or purchases of securities or assets (each such merger, consolidation, business combination or purchase of securities or assets under this clause ‎(ii), an “ Alpha New Acquisition ” and collectively, the “Alpha New Acquisitions ”); provided that the Alpha Parties may take the foregoing actions with respect to Alpha New Acquisitions if and only if each such Alpha New Acquisition (and all such Alpha New Acquisitions collectively) (A) involves only cash consideration (including the assumption of Indebtedness), (B) involves any business or business activity conducted by an Alpha Party or any of their Subsidiaries on the date hereof or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto, (C) would not reasonably be expected to prevent or materially delay the consummation of the Mergers, (D) would not reasonably be likely to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code, (E) would not materially delay the SEC review and approval process relating to the Form S-4 (whether by requiring any additional financial information to be included in the Form S-4 or otherwise), (F) would not materially adversely affect or materially delay obtaining the approvals and clearances under Antitrust Laws required in connection with the consummation of the Mergers and (G) would not require approval of any Alpha Party’s stockholders; it being understood that, notwithstanding anything to the contrary contained in this Agreement, any Alpha New Acquisition that is not permitted by the foregoing clauses ‎(A) through ‎(G) shall require the consent of Contura (which may be withheld, delayed or conditioned in Contura’s sole and absolute discretion);
(d)    split, combine or reclassify its capital stock or other equity interests or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) in respect of its capital stock or other equity interests (other than dividends or distributions paid by a direct or indirect wholly-owned Subsidiary of ANR to its stockholders), or acquire or redeem, directly or indirectly, or amend the rights or terms of any Alpha Securities or Alpha Subsidiary Securities;
(e)    adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Alpha Party or any of their respective Subsidiaries;

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(f)    make or offer to make any acquisition, by means of a merger or otherwise, of any business, assets or securities, or any sale, lease or other disposition of any business, assets or securities, except for (i) purchases or sales, leases or dispositions of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice (except for any Contract for the sale of coal having a term in excess of one year that does not contain a price re-opener or price adjustment provision without a specified collar, which shall require the consent of Contura in accordance with the introductory paragraph of this ‎Section 5.01), (ii) capital expenditures permitted by ‎Section 5.01(p) and (iii) Alpha New Acquisitions expressly permitted pursuant to, and subject to the terms and conditions of, ‎Section 5.01(c);
(g)    make any loans, advances (other than advances pursuant to commercial transactions in the ordinary course of business consistent with past practice) or capital contributions to, or investments in, any other Person in excess of $1,000,000 in the aggregate for all such loans, advances, capital contributions and investments, other than any transaction solely between ANR and a direct or indirect wholly-owned Subsidiary of ANR or between direct or indirect wholly-owned Subsidiaries of ANR;
(h)    except (i) the entry into Contracts for purchases, sales, leases or dispositions of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice to the extent permitted pursuant to ‎Section 5.01(f) or (ii) in connection with an Alpha New Acquisition permitted pursuant to ‎Section 5.01(c), enter into, amend in any material respect, renew, terminate, or grant any release or relinquishment of material rights under any Alpha Material Contract (or Contract that would be an Alpha Material Contract if entered into prior to the date hereof), except, with respect to any collective bargaining or labor agreements, as required by Law (provided that notwithstanding the foregoing provisions of this clause ‎(h), entry into any Contract for the sale of coal having a term in excess of one year that does not contain a price re-opener or price adjustment provision without a specified collar shall require the consent of Contura in accordance with the introductory paragraph of this ‎Section 5.01);
(i)    incur, create, assume or otherwise become liable for, or repay or prepay, any Indebtedness (including the issuance of any debt security), or amend, modify or refinance any existing Indebtedness, in each case except for the incurrence or repayment of Indebtedness that is (i) incurred or repaid in accordance with the agreements or instruments listed in Section 5.01(i)(i) of the Alpha Disclosure Schedule, provided that for the avoidance of doubt such Indebtedness shall not be prepaid; (ii) in the form of a letter of credit or surety bond (A) provided in replacement of any letter of credit or surety bond set forth in Section 5.01(i)(iii) of the Alpha Disclosure Schedule or (B) provided in the ordinary course of business consistent with past practice, to the extent required by applicable Law; or (iii) solely between ANR and a direct or indirect wholly-owned Subsidiary of ANR or between direct or indirect wholly-owned Subsidiaries of ANR;
(j)    except in connection with an Alpha New Acquisition permitted pursuant to ‎Section 5.01(c), assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except direct or indirect wholly-owned Subsidiaries of ANR, in each case, other than any transaction solely between ANR and a direct or indirect wholly-owned Subsidiary of ANR or between direct or indirect wholly-owned Subsidiaries of ANR;
(k)    except in connection with an Alpha New Acquisition permitted pursuant to ‎Section 5.01(c), mortgage, pledge or otherwise encumber any of its assets (tangible or intangible) that are, individually or in the aggregate, material to the Alpha Parties, or create, assume or suffer to exist any Liens thereupon other than Permitted Liens;
(l)    materially change any of the financial accounting methods, principles or practices used by it, except as necessary to conform to changes in statutory or regulatory accounting rules, GAAP or regulatory requirements with respect thereto;
(m)    (i) make or change any material Tax election; (ii) change any annual Tax accounting period; (iii) adopt or change any material method of Tax accounting; (iv) enter into any material closing agreement with respect to Taxes; or (v) settle or surrender any material Tax claim, audit or assessment;
(n)    except to the extent required under existing ANR Plans as in effect on the date hereof, as required by Law or as set forth in Section 5.01(n) of the Alpha Disclosure Schedule, (i) enter into any new, or amend, terminate or renew any existing, employment, severance, change of control, indemnification, termination, severance, consulting, incentive award, salary continuation or similar agreements or arrangements with or for the benefit of any current or former Alpha Service Provider, or grant any increases in the compensation, perquisites or benefits to any current or former Alpha Service Provider,

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except for increases in base compensation or wages in the ordinary course of business and consistent with past practice of up to 3% in the aggregate for non-officer employees whose base salary or annual wage rate is less than $175,000 and whose title is director or below; (ii) accelerate the vesting or payment of the compensation payable or the benefits provided or to become payable or provided to any current or former Alpha Service Providers, or otherwise pay any amounts not due to any such individual under applicable Law or the terms of any ANR Plan, including with respect to severance; or (iii) fund or make any contribution to any ANR Plan or trust not required to be funded or contributed to;
(o)    except as permitted by the preceding clause ‎(n), establish, adopt, enter into, amend in any material respect (other than as required by applicable Law) or terminate any ANR Plan, or adopt or enter into any other employee benefit plan or arrangement that would be considered an ANR Plan if it were in existence on the date of this Agreement;
(p)    make or agree to make any capital expenditure, or enter into any binding agreements or arrangements providing for any capital expenditure except (i) in accordance with the capital expenditure budget set forth in Section 5.01(p) of the Alpha Disclosure Schedule (the “ Alpha Cap Ex Budget ”), and (ii) in respect of any capital expenditures or arrangements that are not set forth in the Alpha Cap Ex Budget that do not exceed $5,000,000 in the aggregate for all such expenditures not included in the Alpha Cap Ex Budget (it being understood that in no event shall Alpha New Acquisitions be permitted other than in accordance with and subject to the terms and conditions of ‎Section 5.01(c) or ‎(f)), or enter into any new line of business outside of its existing business segments;
(q)    compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages not in excess of $1,000,000 individually or $5,000,000 in the aggregate (other than any such immaterial non-monetary remedies agreed to in the ordinary course of business), in any case without the imposition of equitable relief on, or the admission of wrongdoing by, any Alpha Party or any of their respective Subsidiaries;
(r)    take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or
(s)    commit or agree to take, or authorize the taking of, any of the foregoing actions.
Section 5.02.     Interim Undertakings of Contura . Except as expressly permitted or required by this Agreement or as otherwise required by applicable Law or as set forth in Section 5.02 of the Contura Disclosure Schedule or as consented to in writing by ANR (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, Contura shall, and shall cause each of its Subsidiaries to, conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and, to the extent consistent therewith, Contura shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of its current officers and key employees, and to preserve the goodwill of and maintain satisfactory relationships with those Persons having material business relationships with Contura or any of its Subsidiaries. Without limiting the generality of the foregoing and except as otherwise expressly permitted or required in this Agreement or as otherwise required by applicable Law or as set forth in Section 5.02 of the Contura Disclosure Schedule, during the period from the date of this Agreement to the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, without the prior written consent of ANR (such consent not to be unreasonably withheld, delayed or conditioned), Contura will not and will not permit any of its Subsidiaries to:
(a)    propose to stockholders or adopt any amendments to the Contura Certificate of Incorporation or the Contura Bylaws or the articles of incorporation, bylaws or other governing documents of any Subsidiary of Contura, other than the Contura Charter Amendment and amendments or changes to any such documents of the Subsidiaries of Contura in the ordinary course of business consistent with past practice;
(b)    issue, sell, grant options or rights to acquire, pledge, or propose the issuance, sale, grant of options or rights to acquire or pledge of, any Contura Securities or Contura Subsidiary Securities (other than the issuance of shares or other equity interests or rights by a wholly-owned Subsidiary of Contura to Contura or another wholly-owned Subsidiary), or grant any awards or bonuses that may be settled in, or the value of which is linked directly or indirectly to the price or value of, any Contura Securities or securities of any Subsidiary of Contura, except (i) to the extent required under any Contura Plan and

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(ii) issuances of shares of Contura Common Stock upon the exercise, vesting or settlement of Contura Stock Options or other Contura Securities, in each case outstanding on the date hereof and in accordance with their terms.
(c)    acquire or agree or offer to acquire, by merger, consolidation or through any other business combination, or by purchasing any equity interest in or any security convertible into or exchangeable for any equity interest in or all or a portion of the assets of, any Person, except for (i) any merger or business combination of any wholly-owned Subsidiary of Contura into or with any other wholly-owned Subsidiary of Contura and (ii) any other mergers, consolidations, business combinations or purchases of securities or assets involving consideration (including assumed Indebtedness) not in excess of $2,000,000 in the aggregate for all such mergers, consolidations, business combinations or purchases of securities or assets (each such merger, consolidation, business combination or purchase of securities or assets under this clause ‎(ii), a “ Contura New Acquisition ” and collectively, the “ Contura New Acquisitions ”); provided that Contura may take the foregoing actions with respect to Contura New Acquisitions if and only if each such Contura New Acquisition (and all such Contura New Acquisitions collectively) (A) involves only cash consideration (including the assumption of Indebtedness), (B) involves any business or business activity conducted by Contura or any of its Subsidiaries on the date hereof, or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto, (C) would not reasonably be expected to prevent or materially delay the consummation of the Mergers, (D) would not reasonably be likely to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code, (E) would not materially delay the SEC review and approval process relating to the Form S-4 (whether by requiring any additional financial information to be included in the Form S-4 or otherwise), (F) would not materially adversely affect or materially delay obtaining the approvals and clearances under Antitrust Laws required in connection with the consummation of the Mergers and (G) would not require approval of Contura’s stockholders; it being understood that, notwithstanding anything to the contrary contained in this Agreement, any Contura New Acquisition that is not permitted by the foregoing clauses ‎(A) through ‎(G) shall require the consent of ANR (which may be withheld, delayed or conditioned in ANR’s sole and absolute discretion);
(d)    split, combine or reclassify its capital stock or other equity interests or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) in respect of its capital stock or other equity interests (other than dividends or distributions paid by a direct or indirect wholly-owned Subsidiary of Contura to its stockholders), or acquire or redeem, directly or indirectly, or amend the rights or terms of any Contura Securities or Contura Subsidiary Securities;
(e)    adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Contura or any of its Subsidiaries;
(f)    make or offer to make any acquisition, by means of a merger or otherwise, of any business, assets or securities, or any sale, lease or other disposition of any material business, assets or securities, except for (i) purchases or sales, leases or dispositions of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice, (ii) capital expenditures permitted by ‎Section 5.02(o) and (iii) Contura New Acquisitions expressly permitted pursuant to, and subject to the terms and conditions of, ‎Section 5.02(c);
(g)    make any loans, advances (other than advances pursuant to commercial transactions in the ordinary course of business consistent with past practice) or capital contributions to, or investments in, any other Person in excess of $1,000,000 in the aggregate for all such loans, advances, capital contributions and investments, other than any transaction solely between Contura and a direct or indirect wholly-owned Subsidiary of Contura or between direct or indirect wholly-owned Subsidiaries of Contura;
(h)    except in the ordinary course of business consistent with past practice or in connection with an Contura New Acquisition permitted pursuant to ‎Section 5.02(c), enter into, amend in any material respect, renew, terminate, or grant any release or relinquishment of material rights under any Contura Material Contract (or Contract that would be an Contura Material Contract if entered into prior to the date hereof), except, with respect to any collective bargaining or labor agreements, as required by Law;
(i)    incur, create, assume or otherwise become liable for, or repay or prepay, any Indebtedness (including the issuance of any debt security), or amend, modify or refinance any existing Indebtedness, in each case except for the incurrence or repayment of Indebtedness that is (i) incurred or repaid in accordance with the agreements or instruments listed in Section 5.02(i)(i) of the Contura Disclosure Schedule, provided that for the avoidance of doubt such Indebtedness shall not be prepaid; (ii) in the form of a letter of credit or surety bond (A) provided in replacement of any letter of credit or surety

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bond set forth in Section 5.02(i)(iii) of the Contura Disclosure Schedule or (B) provided in the ordinary course of business consistent with past practice, to the extent required by applicable Law; or (iii) solely between Contura and a direct or indirect wholly-owned Subsidiary of Contura or between direct or indirect wholly-owned Subsidiaries of Contura;
(j)    except in connection with an Contura New Acquisition permitted pursuant to ‎Section 5.02(c), assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except direct or indirect wholly-owned Subsidiaries of Contura, in each case, other than any transaction solely between Contura and a direct or indirect wholly-owned Subsidiary of Contura or between direct or indirect wholly-owned Subsidiaries of Contura;
(k)    except in connection with an Contura New Acquisition permitted pursuant to ‎Section 5.02(c), mortgage, pledge or otherwise encumber any of its assets (tangible or intangible) that are, individually or in the aggregate, material to Contura, or create, assume or suffer to exist any Liens thereupon other than Permitted Liens;
(l)    materially change any of the financial accounting methods, principles or practices used by it, except as necessary to conform to changes in statutory or regulatory accounting rules, GAAP or regulatory requirements with respect thereto;
(m)    (i) make or change any material Tax election; (ii) change any annual Tax accounting period; (iii) adopt or change any material method of Tax accounting; (iv) enter into any material closing agreement with respect to Taxes; or (v) settle or surrender any material Tax claim, audit or assessment;
(n)    establish, adopt, enter into, amend in any material respect (other than as required by applicable Law) or terminate any Contura Plan, or adopt or enter into any other employee benefit plan or arrangement that would be considered a Contura Plan if it were in existence on the date of this Agreement;
(o)    make or agree to make any capital expenditure, or enter into any binding agreements or arrangements providing for any capital expenditure except (i) in accordance with the capital expenditure budget set forth in Section 5.02(p) of the Contura Disclosure Schedule (the “ Contura Cap Ex Budget ”) and (ii) in respect of any capital expenditures or arrangements that are not set forth in the Contura Cap Ex Budget that do not exceed $5,000,000 in the aggregate for all such expenditures not included in the Contura Cap Ex Budget (it being understood that in no event shall Contura New Acquisitions be permitted other than in accordance with and subject to the terms and conditions of ‎Section 5.02(c) or ‎(f)), or enter into any new line of business outside of its existing business segments;
(p)    compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages not in excess of $1,000,000 individually or $5,000,000 in the aggregate (other than any such immaterial non-monetary remedies agreed to in the ordinary course of business), in any case without the imposition of equitable relief on, or the admission of wrongdoing by, Contura or any of its Subsidiaries;
(q)    take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or
(r)    commit or agree to take, or authorize the taking of, any of the foregoing actions.
Section 5.03.     Alpha No Solicitation. (a) Subject to Sections ‎5.03(b), ‎(d), ‎(e) and ‎(g), each Alpha Party shall not, and shall cause their respective Subsidiaries not to, and each Alpha Party shall direct its and its Subsidiaries’ Representatives not to, directly or indirectly: (i) initiate, solicit or knowingly encourage (including by way of providing non-public information relating to the Alpha Parties or any of their Subsidiaries) the submission of any inquiries, proposals or offers that constitute or may reasonably be expected to lead to, any Alpha Acquisition Proposal or engage in any discussions or negotiations with respect thereto (except to disclose the existence of the provisions of this ‎Section 5.03) or otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, offers, proposals, discussions or negotiations, (ii) approve or recommend, or publicly propose to approve or recommend, an Alpha Acquisition Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to an Alpha Acquisition Proposal or enter into any letter of intent, agreement or agreement in principle requiring any Alpha Party (whether or not subject to conditions)

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to abandon, terminate or fail to consummate the transactions contemplated hereby or breach any of its obligations hereunder, (iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Contura, either of the Alpha Board Recommendations (a “ Change of Alpha Board Recommendation ”), or (iv) take any action to exempt any Person (other than Contura and its Affiliates) from the restrictions contained in any Takeover Law or otherwise cause such restrictions not to apply. Each Alpha Party shall, shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Persons (other than the parties to this Agreement and their respective Representatives in their capacities as such) conducted theretofore by any Alpha Party, their respective Subsidiaries or any of its Representatives with respect to any Alpha Acquisition Proposal. Each Alpha Party shall promptly request each Person (other than the parties to this Agreement and their respective Representatives in their capacities as such) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Alpha Acquisition Proposal to return or destroy all confidential information provided to such Person by or on behalf of any Alpha Party or any of their respective Subsidiaries to any such Person, to the extent required by, and in accordance with, the terms of the applicable confidentiality agreement. Any breach of this Section 5.03(a) by any Representative of any Alpha Party or any of their Subsidiaries (as if each such Representative were bound hereby) will be treated as a breach by the Alpha Parties for all purposes hereunder.
(b)    Notwithstanding anything to the contrary contained in ‎Section 5.03(a) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to obtaining the Alpha Stockholder Approvals, (i) an Alpha Party has received a written, bona fide Alpha Acquisition Proposal that did not result from a breach of ‎Section 5.03(a), and (ii) the Holdings Board and ANR Board determine in good faith, after consultation with the Alpha Parties’ financial advisors and outside counsel, that such Alpha Acquisition Proposal constitutes or would reasonably be likely to lead to an Alpha Superior Proposal, then the Alpha Parties and their Representatives may, subject to clauses (x) and (y) below, (A) furnish information with respect to the Alpha Parties and their Subsidiaries to the Person making such Alpha Acquisition Proposal (and its Representatives) and provide access to the Alpha Parties’ books, records, facilities, properties, personnel and Representatives to such Person and its Representatives, including this Agreement but excluding all other agreements and documents relating to the Mergers or the other transactions contemplated herein and all information of Contura and its Subsidiaries covered by the Confidentiality Agreement and (B) participate in discussions or negotiations with the Person making such Alpha Acquisition Proposal (and its Representatives) regarding such Alpha Acquisition Proposal; provided that (x) the Alpha Parties will not, and will instruct their Representatives not to, disclose any non-public information to such Person unless the Alpha Parties have entered into a confidentiality agreement with such Person not less restrictive in any material respect on such Person than the Confidentiality Agreement and which does not restrict any Alpha Party from providing the information or access required to be provided to be provided pursuant to clause (y), and (y) the Alpha Parties will promptly provide or make available to Contura or its Representatives any non-public information concerning the Alpha Parties or their Subsidiaries provided or made available to such other Person which was not previously provided or made available to Contura or its Representatives.
(c)    The Alpha Parties shall promptly (and in any event within 24 hours) notify Contura in the event that any Alpha Party (including through any of their respective Subsidiaries or Representatives) receives (i) any Alpha Acquisition Proposal, (ii) any request for non-public information relating to any Alpha Party or any of their respective Subsidiaries other than requests for information in the ordinary course of business of the Alpha Parties or any requests made that are unrelated to an Alpha Acquisition Proposal, or (iii) any request for discussions or negotiations regarding any Alpha Acquisition Proposal. The Alpha Parties shall provide Contura promptly (and in any event within such 24-hour period) with the identity of such Person and a copy of such Alpha Acquisition Proposal or request (or, where such Alpha Acquisition Proposal or request is not in writing, a description of the material terms and conditions thereof). The Alpha Parties shall keep Contura reasonably informed in writing on a current basis (and in any event no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Alpha Acquisition Proposal or request (including the material terms and conditions thereof and of any material modification thereto). The Alpha Parties shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person that would restrict the Alpha Parties’ ability to provide such information to Contura.
(d)    Notwithstanding anything in ‎Section 5.03(a) to the contrary, if either of the Alpha Parties receives a written, bona fide Alpha Acquisition Proposal that did not result from a breach of ‎Section 5.03(a), and the Holdings Board and the ANR Board conclude in good faith after consultation with outside counsel and financial advisors, after giving effect to all of the adjustments to the terms of this Agreement proposed in writing by Contura in response to such Alpha Acquisition

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Proposal, that (i) such Alpha Acquisition Proposal constitutes an Alpha Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with their fiduciary duties under applicable Law, each Alpha Party, the Holdings Board and the ANR Board may (and may resolve or agree to), at any time prior to obtaining the Alpha Stockholder Approvals, effect a Change of Alpha Board Recommendation; provided, however, that neither the Holdings Board nor ANR Board may effect such a Change of Alpha Board Recommendation under this Section 5.03(d) unless (A) the Alpha Parties shall have provided prior written notice to Contura, at least four Business Days in advance (the “ Alpha Notice Period ”), of its intention to take such action with respect to such Alpha Superior Proposal, which notice shall specify the material terms and conditions of any such Alpha Superior Proposal (including the identity of the party making such Alpha Superior Proposal), (B) prior to taking such action, at the request of Contura, the Alpha Parties shall, and shall direct their respective financial and legal advisors to, during such Alpha Notice Period, negotiate in good faith any adjustments in the terms and conditions of this Agreement proposed in writing by Contura during such Alpha Notice Period, and (C) following any negotiation described in the immediately preceding clause (B), such Alpha Acquisition Proposal continues to constitute an Alpha Superior Proposal. In the event of any revisions to the terms of an Alpha Superior Proposal that are material to such Alpha Superior Proposal after the start of the Alpha Notice Period, the Alpha Parties shall be required to deliver a new written notice to Contura satisfying the requirements of clause ‎(A) of the preceding sentence and to comply with the requirements of this ‎Section 5.03(d) with respect to such new written notice, and the Alpha Notice Period shall be deemed to have re-commenced on the date of such new notice; provided, however, that such additional Alpha Notice Period shall expire at the later of (x) the Alpha Notice Period and (y) the end of the second Business Day following the date on which the Alpha Parties deliver such new written notice.
(e)    Notwithstanding anything in ‎Section 5.03(a) to the contrary, at any time prior to obtaining the Alpha Stockholder Approvals, the Holdings Board and the ANR Board may effect a Change of Alpha Board Recommendation, if the Holdings Board and the ANR Board (i) determine in good faith, after consultation with outside counsel, that based on a material event or change in circumstances that was not known, or if known, the consequences of which were not known or reasonably foreseeable, by the Alpha Parties as of the date hereof, the failure to make such Change of Alpha Board Recommendation would reasonably be expected to be inconsistent with their fiduciary duties under applicable Law, and (ii) determine in good faith that the reasons for making such Change of Alpha Board Recommendation are independent of any pending Alpha Acquisition Proposal; provided, however, that the Holdings Board and the ANR Board may not effect such a Change of Alpha Board Recommendation pursuant to this ‎Section 5.03(e) (A) as a result of any Excluded Intervening Event and (B) unless (x) the Alpha Parties shall have provided prior written notice to Contura, at least four Business Days in advance, of its intention to make such Change of Alpha Board Recommendation, which notice shall specify the material facts and information constituting the basis for such contemplated determination, and (y) prior to taking such action, at the request of Contura, the Alpha Parties shall, and shall direct their respective financial and legal advisors to, during such four Business Day period, negotiate in good faith any adjustments in the terms and conditions of this Agreement proposed in writing by Contura during such four Business Day period which would allow each of the Holdings Board and the ANR Board not to make such Change of Alpha Board Recommendation consistent with its fiduciary duties.
(f)    The Alpha Parties agree that any violations of the restrictions set forth in this ‎Section 5.03 by any of their or their Subsidiaries’ Representatives, including any violation by a Representative of a direction given to a Representative pursuant to the first sentence of ‎Section 5.03(a) shall be deemed to be a breach of this Agreement (including this ‎Section 5.03) by the Alpha Parties.
(g)    Nothing contained in this ‎Section 5.03 shall prohibit the Holdings Board or the ANR Board from (x) taking and disclosing to the stockholders of the Alpha Parties a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer, in each case, to the extent legally required) or (y) making any disclosure to the Alpha Parties’ respective stockholders if in the good faith judgment of the Holdings Board and the ANR Board, after consultation with outside counsel, failure to make such disclosure would be reasonably likely to be inconsistent with their fiduciary duties under applicable Law or that such disclosure is otherwise required by Law; provided that any such disclosure that has the substantive effect of withdrawing or adversely modifying the Alpha Board Recommendations shall be deemed to be a Change of Alpha Board Recommendation for purposes of ‎Section 7.01(g); provided further that the issuance by the Alpha Parties, the Holdings Board or the ANR Board of a “stop, look and listen” communication (or any similar communication) as contemplated by Rule 14d-9(f) promulgated under the Exchange Act in which the Alpha Parties have not indicated that the Holdings Board and the ANR Board has changed the Alpha Board Recommendations shall not constitute a Change of Alpha Board Recommendation.

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(h)    For purposes of this Agreement, (i) “ Alpha Acquisition Proposal ” means any inquiry, offer or proposal made by a Person or group (other than Contura or any of its Affiliates) at any time after the date hereof relating to a transaction or potential transaction which is structured to permit such Person or group to acquire beneficial ownership of at least 20% of the assets or businesses of, either of the Alpha Parties and its Subsidiaries, or at least 20% of the equity or any class of equity of either of the Alpha Parties or any of its Subsidiaries, pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or other transaction, including any single or multi-step transaction or series of related transactions, in each case other than the Mergers, and (ii) “ Alpha Superior Proposal ” means any bona fide Alpha Acquisition Proposal (except the references in the definition thereof to “20%” shall be replaced by “more than 50%”) made in writing after the date hereof that the Holdings Board and the ANR Board have determined in good faith (after consultation with the Alpha Parties’ financial advisors and outside counsel) is more favorable from a financial point of view to the holders of Alpha Capital Stock than the Mergers, taking into account all of the terms and conditions of such Alpha Acquisition Proposal, including all legal, financial, regulatory, likelihood and timing of consummation and other aspects of such Alpha Acquisition Proposal as the Holdings Board and the ANR Board deem relevant.
Section 5.04.     Preparation of SEC Documents; Listing . (a) As promptly as reasonably practicable following the date of this Agreement, Contura and the Alpha Parties shall prepare and Contura shall file with the SEC the Form S-4, in which the Joint Proxy Statement will be included; provided that the parties acknowledge that their goal is to file the Form S-4 within 30 Business Days after the date of this Agreement and that if they do not file the Form S-4 within such period, the appropriate senior executive officers of Contura and the Alpha Parties shall discuss the reasons for the failure to meet such goal. Each of the Alpha Parties and Contura shall obtain and furnish the information concerning itself and its Affiliates as may be reasonably requested in connection with the preparation, filing and distribution of the Form S-4 and the Joint Proxy Statement. Each of the Alpha Parties and Contura shall use its reasonable best efforts to (A) have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and (B) keep the Form S-4 effective for so long as necessary to complete the Mergers. The Alpha Parties shall cause the Joint Proxy Statement to be mailed to the Alpha Parties’ stockholders, as applicable, as promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act, and in any event, not less than 20 days prior to the date of the Alpha Special Meetings. The Joint Proxy Statement shall notify the stockholders of the Alpha Parties of the availability of appraisal rights in connection with the transactions contemplated by this Agreement in accordance with Section 262 of the DGCL. Contura shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance and reservation of shares of Contura Common Stock in the Mergers, and the Alpha Parties shall furnish all information concerning the Alpha Parties and the holders of Alpha Capital Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by Contura or the Alpha Parties, as applicable, without the other’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed) and without providing the other the opportunity to review and comment thereon. Contura will advise ANR promptly after it receives oral or written notice of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order (in which case, Contura will use reasonable best efforts to obtain the withdrawal of such order as soon as reasonably possible), the suspension of the qualification of the Contura Common Stock issuable in connection with the Mergers for offering or sale in any jurisdiction, or any oral or written request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information and will promptly provide ANR with copies of any written communication from the SEC or any state securities commission. Contura and the Alpha Parties shall use their respective reasonable best efforts, after consultation with each other, to resolve all such requests or comments with respect to the Form S-4 as promptly as reasonably practicable after receipt thereof. If at any time prior to the Closing any information relating to Contura or the Alpha Parties, or any of their respective Affiliates, officers or directors, should be discovered by Contura or any Alpha Party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the respective stockholders of the Alpha Parties.
(b)    Contura shall use reasonable best efforts to (i) cause the shares of Contura Common Stock to be issued in connection with the Mergers to be approved for listing on the NYSE or NASDAQ, subject to official notice of issuance, prior

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to the Closing, and, in connection therewith to be registered under Section 12(b) of the Exchange Act and (ii) to arrange for at least one market maker to register with the Financial Industry Regulatory Authority, Inc. as such with respect to the Contura Common Stock.
Section 5.05.     Stockholder Approvals . (a) Each Alpha Party shall, in accordance with applicable Law, the Holdings Certificate of Incorporation, the Holdings Bylaws, the ANR Certificate of Incorporation and the ANR Bylaws, call a meeting of its stockholders (in the case of Holdings, the “ Holdings Special Meeting ”, in the case of ANR, the “ ANR Special Meeting ” and together, the “ Alpha Special Meetings ”) to be held as promptly as reasonably practicable after the Form S-4 becomes effective, subject to compliance with applicable Law and provided that the Holdings Special Meeting shall be held prior to the ANR Special Meeting, for the purpose of obtaining the Alpha Stockholder Approvals in connection with this Agreement and the Mergers, and shall use its commercially reasonable efforts to cause each such meeting to occur as promptly as reasonably practicable after the Form S-4 becomes effective, subject to compliance with applicable Law and provided that the Holdings Special Meeting shall be held immediately prior to the ANR Special Meeting. Subject to Sections ‎5.03(d) and ‎5.03(e), the Joint Proxy Statement shall include the recommendation of the Holdings Board and the ANR Board that the Alpha Parties’ stockholders adopt the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement with respect to the Holdings Merger and the ANR Merger, as applicable. Unless this Agreement is validly terminated by the Alpha Parties or Contura in accordance with its terms pursuant to ‎Article 7 and subject to Sections ‎5.03(d) and ‎5.03(e), each Alpha Party shall use its commercially reasonable efforts to obtain from its stockholders the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement with respect to the Holdings Merger and the ANR Merger, as applicable, as required to consummate the Mergers, including by soliciting proxies in favor of such adoption and taking all other reasonable actions necessary or advisable to secure the vote of the holders of Alpha Capital Stock required by applicable Law to obtain such adoption. Holdings will not sell, transfer or assign, or allow any Lien to exist with respect to, its shares of Class C-2 Common Stock, and shall cause its shares of Class C-2 Common Stock to be counted as present at the ANR Special Meeting for purposes of calculating a quorum and, if the “agreement of merger” contained in this Agreement with respect to the Holdings Merger is adopted at the Holdings Special Meeting by the holders of Holdings Common Stock required by applicable Law to obtain such adoption, shall vote all such shares of Class C-2 Common Stock in favor of the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement with respect to the ANR Merger as required to consummate the ANR Merger. Unless this Agreement is validly terminated by the Alpha Parties or Contura in accordance with its terms pursuant to ‎Article 7 prior to the date of the Alpha Special Meetings, each Alpha Party shall submit the “agreement of merger” (as such term is used in Section 251 of the DGCL) with respect to the Holdings Merger and the ANR Merger, as applicable, contained in this Agreement to its stockholders for adoption at the Alpha Special Meetings even if the Holdings Board and/or the ANR Board shall have effected a Change of Alpha Board Recommendation.
(b)    The Alpha Parties shall coordinate to cause the Holdings Special Meeting and the ANR Special Meeting to occur on the same date and during substantially the same time period. If, on the date of the Alpha Special Meetings, either Alpha Party has not received proxies representing a sufficient number of shares of Alpha Capital Stock to obtain the Alpha Stockholder Approvals, each Alpha Party shall at its election or upon written request of Contura adjourn the applicable Alpha Special Meeting until such date as shall be mutually agreed upon by the Alpha Parties and Contura, which date shall not be less than five days nor more than 10 days after the date of adjournment, and subject to the terms and conditions of this Agreement shall continue to use its reasonable best efforts, together with its proxy solicitor, to assist in the solicitation of proxies from stockholders relating to the Alpha Stockholder Approvals. No Alpha Party may adjourn its Alpha Special Meeting except in accordance with this ‎Section 5.05(b) and shall not adjourn its Alpha Special Meeting more than one time pursuant to this ‎Section 5.05(b) unless mutually agreed by the Alpha Parties and Contura.
(c)    No later than (i) the third Business Day following the date of this Agreement, Contura shall deliver to the Alpha Parties a written certificate signed on behalf of Contura by its Chief Executive Officer or Chief Financial Officer certifying whether the Contura Charter Amendment has been approved by the beneficial owners of a majority of the outstanding shares of Contura Common Stock and (ii) the twentieth Business Day following the date of this Agreement, Contura shall deliver to the Alpha Parties a written certificate signed on behalf of Contura by its Chief Executive Officer or Chief Financial Officer certifying whether the Contura Charter Amendment has been approved by the record holders of a majority of the outstanding shares of Contura Common Stock.
Section 5.06.     Access to Information . (a) Subject to the Confidentiality Agreement and the restrictions imposed by the HSR Act and applicable Law, from and after the date of this Agreement through the earlier of the Closing and the

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termination of this Agreement in accordance with its terms, each of the Alpha Parties and Contura will (i) give the other party and its respective Representatives (and their counsel and advisors) reasonable access (during regular business hours upon reasonable notice), consistent with applicable Law, to all employees, offices and other facilities and to all books, Contracts, commitments and records of it and its Subsidiaries and cause it and its Subsidiaries’ respective Representatives to provide access to its work papers and such other information as the other party may reasonably request (subject, in the case of work papers, to the execution of customary documentation reasonably requested by auditors), and (ii) permit the other party to make such inspections of Alpha Real Property or Contura Real Property, as applicable, as the other party may reasonably require (provided that no Phase II environmental investigations or similar testing of ground soil shall be permitted to be conducted), and (iii) cause its officers and those of its Subsidiaries to furnish the other party with such financial and operating data and other information with respect to the business, properties and personnel of it and its Subsidiaries as the other party may from time to time reasonably request. Notwithstanding the foregoing, any such access shall be in such a manner as not to interfere unreasonably with the business or operations of the other parties or their respective Subsidiaries. Without the prior written consent of the other parties (which in the case of the following clause (i) shall not be unreasonably withheld conditioned or delayed), no party shall (i) visit or enter any properties of such other parties outside of the ordinary course of business or (ii) conduct any Phase I or Phase II examinations or any other invasive environmental testing at the properties of such other parties.
(b)    Information obtained by a party pursuant to ‎Section 5.06(a) shall be subject to the provisions of the Confidentiality Agreement, which Confidentiality Agreement shall remain in full force and effect in accordance with its terms.
(c)    Nothing in this ‎Section 5.06 shall require a party to permit any inspection, or to disclose any information, that in the reasonable judgment of such party would (i) waive or jeopardize the attorney-client privilege of such party or its Subsidiaries or violate any of their respective contractual obligations to any third party (provided that each such party shall use its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure), or (ii) result in a violation of applicable Law, including the HSR Act. No investigation pursuant to this ‎Section 5.06 or otherwise shall affect the representations, warranties, or covenants in this Agreement or any of the remedies or conditions to the obligations of the parties hereto.
Section 5.07.     Commercially Reasonable Efforts; Consents and Governmental Approvals .
(a)    Subject to the terms and conditions of this Agreement (including the last two sentences of this ‎Section 5.07(a) and Section 5.07(b)), each of the parties hereto agrees to use its commercially reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate and make effective, in the most expeditious manner practicable, the Mergers. Without limiting the foregoing, but subject to the last two sentences of this ‎Section 5.07(a), each of the Alpha Parties and Contura agrees to use its commercially reasonable efforts to, in the most expeditious manner practicable, (i) obtain all waivers, consents and approvals from parties to Contracts to which any Alpha Party or any of their respective Subsidiaries is a party (in which case the Alpha Parties shall be primarily responsible for obtaining such waivers, consents and approvals), or to which Contura or any of its Subsidiaries is a party (in which case Contura shall be primarily responsible for obtaining such waivers, consents and approvals), as applicable, which are required in connection with the consummation of the transactions contemplated hereby and (ii) obtain all consents, approvals, permits and authorizations that are required to be obtained under any federal, state, local or foreign Law in connection with the transactions contemplated hereby. Notwithstanding anything herein to the contrary, Contura need not agree to (including by consent under the next sentence) or make any concessions or undertakings (including agreements to divest or hold separate assets or limit lines of business) if such agreements, concessions or undertakings either (x) would have a material and adverse effect on the benefits Contura reasonably expects to be derived from the combination of Contura and the Alpha Parties through the Mergers or materially limit the conduct of business by Contura or its Subsidiaries (including Holdings and ANR and their respective Subsidiaries) following the Closing, or (y) are not required to permit the consummation of the Merger without material delay (such agreements, concessions or undertakings, “ Materially Burdensome Conditions ”). The Alpha Parties shall not, without the prior written consent of Contura, agree to or make any payments (other than customary filing fees) or any concessions or undertakings (including with respect to any Materially Burdensome Conditions) in connection with the matters referenced in this ‎Section 5.07.
(b)    Each Alpha Party and Contura agrees (i) as promptly as reasonably practicable following the date of this Agreement, to file all Notification and Report Forms required under the HSR Act with respect to the transactions

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contemplated hereby, (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act, and (iii) to use its commercially reasonable efforts to take or cause to be taken all actions necessary, proper or advisable consistent with, and subject to, the other provisions of this ‎Section 5.07 (including the last two sentences of ‎Section 5.07(a)), to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as reasonably practicable, including by requesting early termination thereof. Each Alpha Party and Contura shall, in connection with the efforts referenced in ‎Section 5.07(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, use all commercially reasonable efforts to (A) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (B) keep the other parties reasonably informed of any communication received by such party from, or given by such party to, any Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (C) permit the other party to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by such applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, “ Antitrust Law ” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. Each of the Alpha Parties and Contura may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under Section 5.06 or this Section 5.07(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel (or previously agreed outside consultant) of the recipient and shall not be disclosed by such outside antitrust counsel (or such outside consultant) to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. Notwithstanding anything to the contrary contained in this Agreement, in the event that Contura or its Subsidiaries enters into an agreement committing to, or consummates, a transaction pursuant to which one or more third parties acquires or agrees to acquire beneficial ownership of at least 50% of the assets or businesses of Contura and its Subsidiaries, pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or other transaction, including any single or multi-step transaction or series of related transactions (such transaction, a “ Contura Sale Transaction ”), then Contura and its Subsidiaries shall, notwithstanding the last two sentences of Section 5.07(a) and any other contrary provisions in this Agreement, be required to use reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable, to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as reasonably practicable, including by (i) agreeing to and performing any Materially Burdensome Conditions that may be required to obtain the expiration or termination of the applicable waiting periods under the HSR Act and (ii) taking any and all reasonable actions to (x) contest and defend any claim, cause of action, or proceeding instituted or threatened that challenges the Mergers as violating any Antitrust Law to avoid entry of, or (y) have vacated, lifted, reversed, repealed, rescinded, or terminated, any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) entered, enforced, or attempted to be entered or enforced, by any Governmental Entity that would prohibit, prevent or restrict consummation of the Mergers. Nothing in ‎Section 5.02 (other than ‎Section 5.02(q)) or this ‎Section 5.07 will prevent Contura or any of its Subsidiaries from entering into an agreement committing to a Contura Sale Transaction.
(c)    Without limiting any of the other restrictions set forth in this Agreement (including ‎Section 5.01(c) and ‎Section 5.02(c)), no party hereto shall, nor shall it permit any of its Subsidiaries to, acquire or agree to acquire any business, Person or division thereof, or otherwise acquire or agree to acquire any assets or enter into any other transaction if the entering into of a definitive agreement relating to or the consummation of such acquisition or other transaction would be reasonably likely to materially delay the consummation of the transactions contemplated hereby or increase the risk of not obtaining any applicable clearance, approval or waiver from a Governmental Entity charged with the enforcement of any Antitrust Law with respect to the transactions contemplated hereby.
Section 5.08.     Indemnification and Insurance . (a) For a period of at least six years following the Closing, Contura shall maintain in effect provisions in the Holdings Certificate of Incorporation, Holdings Bylaws, ANR Certificate of Incorporation and ANR Bylaws, or, in the event that the Forward Mergers are consummated, the comparable organizational documents of the limited liability companies that survive such Forward Mergers, related to exculpation and indemnification of the (as of or prior to the Closing) former directors, officers and employees of the Alpha Parties that are no less favorable

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than those which are currently provided in the Holdings Certificate of Incorporation, Holdings Bylaws, ANR Certificate of Incorporation and ANR Bylaws, which provisions shall not be amended, repealed or otherwise modified during such six year period in any manner that would adversely affect the rights thereunder of any such individuals until the expiration of the statutes of limitations applicable to such matters or unless such amendment, modification or repeal is required by applicable Law.
(b)    From and after the Closing, the Surviving Corporations shall, and Contura shall cause the Surviving Corporations to, indemnify and hold harmless each (as of or prior to the Closing) officer and director of the Alpha Parties and of any Subsidiary of the Alpha Parties (as applicable with respect to the relevant Surviving Corporation) (each, together with such person’s heirs, executors or administrators, an “ Indemnified Party ” and collectively, the “ Indemnified Parties ”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any proceeding, whether civil, criminal, administrative or investigative, arising out of the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of an Alpha Party or any of its Subsidiaries (as applicable with respect to the relevant Surviving Corporation), or of another entity if such service was at the request of an Alpha Party, whether asserted or claimed prior to, at or after the Closing, to the fullest extent such Surviving Corporation is permitted to do so under applicable Law and its certificate of incorporation and bylaws as at the date hereof. In the event of any such proceeding, each Indemnified Party will be entitled to advancement of expenses incurred in the defense of the proceeding from the applicable Surviving Corporation to the same extent such Persons have the right to advancement of expenses from the applicable Alpha Party as of the date of this Agreement pursuant to the Holdings Certificate of Incorporation, Holdings Bylaws, ANR Certificate of Incorporation and ANR Bylaws, as applicable (provided that any Person to whom expenses are advanced shall have provided an undertaking to repay such advances if it is finally determined that such Person is not entitled to indemnification).
(c)    The Alpha Parties shall purchase prior to the Closing, and, for a period of six years following the Closing, Contura shall maintain, a fully pre-paid six-year tail policy to the current directors’ and officers’ liability insurance policies maintained on the date of this Agreement by the Alpha Parties for an aggregate cost of no more than 300% of the total annual premiums currently paid by the Alpha Parties for such insurance (exclusive of any premium refund on existing coverage for the Alpha Parties), which tail policy will cover a period from the Closing through and including the date that is six years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Closing, and which tail policy shall contain the same coverage and amount as, and contain terms and conditions that are equivalent to the coverage currently provided by the existing policies of the Alpha Parties (complete and accurate copies of which shall have been made available to Contura before such purchase); provided that if the cost of such tail policy would exceed 300% of the total annual premiums currently paid by the Alpha Parties for such insurance, the Alpha Parties shall obtain a tail policy with the greatest coverage available for a cost not to exceed such amount.
(d)    In the event that a Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any person, then, and in each such case, Contura shall cause proper provision to be made so that the successors and assigns of such Surviving Corporation shall expressly assume the applicable obligations set forth in this ‎Section 5.08.
(e)    The provisions of this ‎Section 5.08 (i) shall survive the consummation of the Mergers and, from and after (but not before) the Closing, is intended to benefit, and shall be enforceable by, each Indemnified Party and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract, under applicable Law or otherwise.
Section 5.09.     Employee Matters . (a) Contura shall, for the period commencing at the Closing and ending on December 31, 2019, provide, or cause to be provided, to each employee of ANR or its Subsidiaries as of the First Effective Time, other than individuals covered by a collective bargaining agreement (the “ Current Employees ”), for so long as such Current Employee remains employed by Contura or one of its Subsidiaries, compensation opportunities and employee benefits (but excluding equity compensation, change in control, transaction, deal or retention bonuses or payments, defined benefit pension benefits and any compensation or benefits provided pursuant to a collective bargaining agreement or defined benefit plan) that are substantially comparable, in the aggregate, to either, in Contura’s sole discretion, (i) the compensation opportunities and employee benefits provided by ANR or its Subsidiaries, as applicable, immediately prior to the Closing or (ii) the compensation opportunities and employee benefits provided by Contura to similarly-situated Contura employees. In

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addition, Contura shall, and shall cause its Subsidiaries to, honor any obligations of ANR or its Subsidiaries under (i) any retention or employment agreements in existence on the date hereof to which any Current Employee is a party and which are listed on ‎Section 5.09(a) of the Alpha Disclosure Schedule or (ii) the KESP, as in effect on the date hereof. Nothing in this ‎Section 5.09 shall interfere with Contura’s right or obligation to make such changes as are necessary to conform with applicable Law or prevent the amendment or termination of any ANR Plan (to the extent amendment or termination is permitted by such ANR Plan). Nothing in this ‎Section 5.09 shall limit the right of Contura or any of its Subsidiaries to terminate the employment of any Current Employee at any time.
(b)    Contura shall cause service rendered by Current Employees of ANR and its Subsidiaries (and any predecessor thereto) prior to the Closing to be given full credit under any compensation or benefit plan Contura or any of its Subsidiaries for purposes of eligibility, vesting and benefit accrual (but not for benefit accrual under any defined benefit or post-employment or retiree welfare benefits) under employee benefit plans of Contura and its Subsidiaries, except where such credit would not be afforded under the applicable ANR Plans and except as would result in a duplication of benefits. For the avoidance of doubt, nothing in this ‎Section 5.09(b) shall limit the right of Contura or any of its Subsidiaries to terminate existing ANR Plans or adopt new employee benefit plans. Contura shall use commercially reasonable efforts to (i) ensure that no Current Employee shall be subject to any pre-existing condition limitation under any health plan of Contura or its Subsidiaries for any condition for which he or she would have been entitled to coverage under the corresponding ANR Plan in which he or she participated prior to the Closing and (ii) give effect to, for the fiscal year in which the Closing occurs, in determining any deductible, co-pays and maximum out-of-pocket limitations, claims incurred and amounts paid by, and amounts reimbursed to, Current Employees prior to the Closing.
(c)    Notwithstanding anything to the contrary in the ANR, Inc. Key Employee Separation Plan, as amended (the “ KESP ”) (including with respect to Code Section 280G and Net After Tax Benefits (as therein defined)), Contura shall, together with the first lump sum payment payable in respect of the separation from service of any disqualified individual (within the meaning of Code Section 280G) eligible to receive benefits under the KESP, make an additional cash payment to each such disqualified individual (within the meaning of Code Section 280G) in respect of Taxes due under Code Section 4999 equal in amount to the lesser of (i) the amount set forth with respect to such individual on Section 5.09(c) of the Disclosure Schedule (which amounts shall not exceed $2,500,000 in the aggregate for all such disqualified individuals) and (ii) the actual Code Section 4999 excise tax gross-up amount owed to such disqualified individual calculated by ANR’s independent auditor at the time of such separation from service in accordance with the methodology set forth in ‎Section 5.09(c) of the Alpha Disclosure Schedule, which calculation must be reasonably acceptable to Contura.
(d)    This ‎Section 5.09 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this ‎Section 5.09, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this ‎Section 5.09 or is intended to be an amendment to any ANR Plan or Contura Plan.
(e)    Contura and the Alpha Parties hereby agree that the occurrence of the Closing shall constitute a “change in control” for purposes of the ANR Plans set forth in Section 5.09(e) of the Alpha Disclosure Schedule.
Section 5.10.     Takeover Laws . (a) Each Alpha Party, the Holdings Board and the ANR Board, as applicable, shall, upon the request of Contura, grant all such approvals and take all other necessary steps within their control to exclude the Mergers and any other transaction contemplated hereby from the applicability of any Takeover Laws.
(b)    Contura and the Contura Board shall, upon the request of ANR, grant all such approvals and take all other necessary steps within their control to exclude the Mergers and any other transaction contemplated hereby from the applicability of any Takeover Laws.
Section 5.11.     Notification of Certain Matters . (a) Each Alpha Party shall give prompt notice to Contura of any breach of this Agreement by such Alpha Party, and Contura shall give prompt notice to ANR of any breach of this Agreement by Contura, in each case upon obtaining knowledge of such breach if such breach, individually or in the aggregate with any other breaches, would make the timely satisfaction of any of the conditions set forth in Sections 6.01, 6.02 and 6.03 impossible or unlikely. The delivery of any notice pursuant to this ‎Section 5.11 shall not cure any breach of any representation or warranty requiring disclosure of such matter or otherwise limit or otherwise affect the remedies available hereunder to any party receiving such notice. This ‎Section 5.11 shall not constitute an obligation, covenant or agreement for purposes of ‎Section 6.02(b), ‎6.03(b), ‎7.01(e) or ‎7.01(f).

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(b)    Each Alpha Party and Contura shall use its reasonable best efforts to keep the other informed, on a current basis, of any events, discussions, notices or changes with respect to any material Proceeding or investigation involving any Alpha Party or any of their respective Subsidiaries or Contura or any of its Subsidiaries.
Section 5.12.     Financing Assistance . (a) Although the parties acknowledge and agree that the obtaining of financing by Contura and its Subsidiaries is not a condition to Closing, prior to the Closing, each Alpha Party shall use its commercially reasonable efforts to, and shall cause its Subsidiaries and their respective Representatives to use their commercially reasonable efforts to, assist Contura in connection with the arrangement of any refinancing or replacement of any existing, or the arrangement of any new, facility for Indebtedness of Contura or its Subsidiaries or any Alpha Party or their respective Subsidiaries, including up to $100 million of incremental financing, to be consummated prior to or contemporaneously with the Closing in connection with the transactions contemplated by this Agreement.
(b)    Without limiting the generality of the foregoing, each Alpha Party shall, and shall cause its Subsidiaries and shall use commercially reasonable efforts to cause their respective Representatives to (i) enter into customary agreements, including underwriting and purchase agreements, in connection with any debt financing or refinancing contemplated by Section 5.12(a), (ii) participate in meetings, due diligence sessions and road shows, (iii) assist in preparing offering memoranda, rating agency presentations, private placement memoranda, prospectuses and similar documents, (iv) facilitate the pledging of, and perfection of, security interests in in the assets and equity of the Alpha Parties and their Subsidiaries effective no earlier than Closing; provided that the delivery of any original stock certificates and other certificated securities shall be delivered in escrow pending release at the Closing, (v) furnish to Contura and its financing or refinancing sources as promptly as possible the financial information reasonably required by Contura’s financing sources, (vi) update any financial statements delivered pursuant to clause (v) hereof as may be necessary so that such financial information does not contain any untrue statement of a material fact with respect to the business of the Alpha Parties and their Subsidiaries or omit to state any material fact with respect to the business of the Alpha Parties and their Subsidiaries necessary to make the statements not misleading in any material respect (after giving effect to all supplements and updates thereto from time to time) in light of the circumstances in which they were made, (vii) provide upon the reasonable request of Contura and/or its financing or refinancing sources such information reasonably deemed necessary to prepare a confidential information memorandum and other customary syndication materials reasonably required, including business projections and financial statements, (viii) cooperate to facilitate the due diligence efforts of Contura’s financing sources to the extent customary and reasonable and not unreasonably interfering with the business of the Alpha Parties and their Subsidiaries, (ix) facilitate the release of any Lien on the assets and the interests and the termination of all guarantees (if any) in connection therewith subject to the occurrence of the Closing, (x) provide at least four Business Days) prior to Closing all documentation and other information as is required by applicable “know your customer” anti-money laundering rules and regulations including the USA PATRIOT Act to the extent requested by Contura in writing prior to Closing, (xi) use reasonable best efforts to obtain comfort letters of accountants, legal opinions and to provide consents for use of such independent auditors’ reports and (xii) otherwise make available documents and information relating to the Alpha Parties and their Subsidiaries, in each case, as may be reasonably requested by Contura.
(c)    Notwithstanding anything to the contrary in this ‎Section 5.12, no Alpha Party or director, officer or employee of any of the foregoing, shall be required in connection with the matters contemplated by this ‎Section 5.12 to (i) pay any commitment or other similar fee not reimbursed by Contura, (ii) incur any liability of any kind (or cause their Representatives to incur any liability of any kind) prior to the Closing, (iii) enter into any agreement or commitment in connection with any financing which would be effective prior to the Closing or provide any certification or opinion of any Alpha Party or its Subsidiaries which would be effective prior to the Closing, (iv) provide any certificate, comfort letter or opinion of any of its Representatives (other than any officers certificate under which no personal liability of any officer is incurred), or (v) take any action that would (A) unreasonably interfere with the normal operations of the Alpha Parties and their respective Subsidiaries, (B) cause any director, officer or employee of any Alpha Party or its Subsidiaries to incur any personal liability, (C) conflict with the organizational documents of any Alpha Party or any of its Subsidiaries or (D) result a violation or breach of, or a default under, any Contract to which any Alpha Party or any of its Subsidiaries is a party as of the date hereof.
Section 5.13.     Press Releases . Following the execution of this Agreement, the Alpha Parties and Contura shall issue an initial joint press release agreed upon by the Alpha Parties and Contura. Thereafter, unless and until a Change of Alpha Board Recommendation has occurred and except as otherwise required by Law (including the rules or regulations of any applicable regulatory or governmental body to which the relevant party is subject or submits, wherever situated), each of

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Contura and the Alpha Parties agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued by (i) any Alpha Party or any of their respective Subsidiaries without first providing a meaningful opportunity to Contura to review and comment upon such release or announcement and giving due consideration to all reasonable additions, deletions or changes suggested thereto or (ii) Contura or any of its Subsidiaries without first providing a meaningful opportunity to the Alpha Parties to review and comment upon such release or announcement and giving due consideration to all reasonable additions, deletions or changes suggested thereto. Following the execution of this Agreement, if and to the extent any party makes any written communication to its employees that would be required to be filed with the SEC with respect to the Mergers or any other broadly disseminated written communication to employees with respect to the Mergers, such disclosing party shall, prior to making such disclosure provide a meaningful opportunity to the non-disclosing parties to review and comment upon such communications and shall give due consideration to all reasonable additions, deletions or changes suggested thereto. Notwithstanding the foregoing, each Alpha Party and Contura may make any disclosures and announcements (i) which are consistent with prior public releases or announcements made in accordance with this ‎Section 5.13 or (ii) in connection with any Proceeding in which the parties are adverse to each other. Nothing in this ‎Section 5.13 shall limit any rights or remedies of any party under ‎Section 5.03.
Section 5.14.     Stockholder Litigation . (a) Each Alpha Party shall give Contura the opportunity to participate, subject to a customary joint defense agreement, in, but not control, the defense or settlement of any stockholder Proceeding against any Alpha Party or any of their respective directors or officers relating to the Mergers or any other transactions contemplated hereby; provided, however, that no settlement or compromise shall be agreed to by or on behalf of any Alpha Party or any of their respective Subsidiaries without Contura’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
(b)    Contura shall give the Alpha Parties the opportunity to participate, subject to a customary joint defense agreement, in, but not control, the defense or settlement of any stockholder Proceeding against Contura or any of its directors or officers relating to the Mergers or any other transactions contemplated hereby; provided, however, that no settlement or compromise shall be agreed to by or on behalf of Contura or any of its Subsidiaries without ANR’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
Section 5.15.     No Control of Other Party’s Business . Nothing contained in this Agreement shall give Contura, directly or indirectly, the right to control or direct the Alpha Parties’ or their Subsidiaries’ operations prior to the Closing, and nothing contained in this Agreement shall give the Alpha Parties, directly or indirectly, the right to control or direct Contura’s or its Subsidiaries’ operations prior to the Closing. Prior to the Closing, each of Contura and the Alpha Parties shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Section 5.16.     Reserved .
Section 5.17.     Tax Matters .
(a)    It is intended that each of the Mergers shall constitute a “reorganization” within the meaning of Section 368(a) of the Code, and that this Agreement shall constitute a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). Subject to the other provisions of this Agreement, each of the Alpha Parties and Contura shall use its reasonable best efforts (i) to cause the Holdings Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code, (ii) to cause the ANR Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings, ANR and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code and (iii) not to, and not permit or cause any of their respective Subsidiaries or Affiliates to, take or cause to be taken any action reasonably likely to cause either of the Mergers to fail to qualify as a “reorganization” under Section 368(a) of the Code.
(b)    Notwithstanding any other provision of this Agreement, Contura shall be entitled to deduct and withhold from the consideration or other amounts otherwise payable pursuant to the Mergers or this Agreement any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any applicable provision of state, local or foreign Tax Law. To the extent that amounts are so deducted and withheld and paid over to the applicable Governmental Entity, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Alpha Capital Stock or other Person in respect of which such deduction and withholding

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was made. Contura shall pay, or shall cause to be paid, all amounts so withheld to the appropriate Governmental Entity within the period required under applicable Law. The parties to this Agreement shall cooperate in obtaining, prior to Closing, available Tax Certificates from Persons who are expected to be Alpha Party Shareholders. As soon as practicable after the date of this Agreement, the Alpha Parties and Contura shall jointly engage Ernst & Young LLP to deliver the opinion referenced in the definition of “Alpha Company Certificate.” For the avoidance of doubt, information obtained by a party pursuant to this ‎Section 5.17(b) shall be subject to the provisions of the Confidentiality Agreement, which Confidentiality Agreement shall remain in full force and effect in accordance with its terms.
(c)    Notwithstanding any other provision of this Agreement and without limiting the generality of ‎‎Section 5.17(b), unless each of the Alpha Parties delivers an Alpha Company Certificate at least ten days prior to the Closing Date, Contura may require that, if an Alpha Party Shareholder does not deliver a Tax Certificate with respect to the Applicable Merger by the earlier of (x) the date the Alpha Party Shareholder delivers the letter of transmittal referred to in ‎Section 2.01(b) and (y) the date that is fifteen days after the Closing, to the Exchange Agent (who shall be instructed by Contura to deliver such Tax Certificate to Contura promptly following receipt thereof), the Exchange Agent shall:
(i)    promptly sell, on behalf of such Alpha Party Shareholder, shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be delivered to such Alpha Party Shareholder as consideration in such Applicable Merger in sufficient number to yield net proceeds equal to the sum of (A) the FIRPTA Withholding Tax with respect to such Alpha Party Shareholder and such Applicable Merger and (B) the amount of costs, expenses and fees incurred by the Exchange Agent in connection with selling such shares, which amount described in (B) shall be retained by the Exchange Agent to reimburse the Exchange Agent for such costs, expenses and fees;
(ii)    promptly deliver cash to Contura in an amount equal to the FIRPTA Withholding Tax with respect to such Alpha Party Shareholder and such Applicable Merger (which Contura shall promptly report and pay to the Internal Revenue Service as required by Treasury Regulations Section 1.1445-1); and
(iii)    promptly deliver (subject to the other provisions of this Agreement) the remaining shares of Contura Common Stock to such Alpha Party Shareholder.
(d)    For purposes of this Section 5.17:
(i)    “ Alpha Company Certificate ” shall mean a certification, signed under penalties of perjury by an officer of the applicable Alpha Party, dated not more than 30 days prior to the Closing Date, and delivered to Contura at least ten days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h) and confirms that Holdings Common Stock and Class C-1 Common Stock, as applicable, is not a “United States real property interest” within the meaning of Section 897(c) of the Code, provided that such certification must be supported by a should level opinion of Ernst & Young LLP (or another firm reasonably satisfactory to Contura) reasonably satisfactory to Contura and a copy of the notice to be sent to the Internal Revenue Service as required by Treasury Regulation Sections 1.897-2(h).
(ii)    “ Alpha Party Shareholder ” shall mean, as applicable, the beneficial owner of Holdings Common Stock at the First Effective Time or the beneficial owner of Class C-1 Common Stock at the Second Effective Time.
(iii)    “ Applicable Contura Share Price ” shall mean the closing price of a share of Contura Common Stock on the day of Closing (as reasonably determined by Contura), provided, that if (i) the Closing occurs after the close of trading on the NYSE or NASDAQ, as applicable, on the Closing Date (as determined by Contura), then the Applicable Contura Share Price shall be the opening price of the shares of Contura Common Stock (as determined by Contura) on the first day following Closing on which the NYSE or NASDAQ, as applicable, is open, and (ii) if Contura reasonably determines that the Applicable Contura Share Price should be determined as of some other time, it shall be determined as of such other time.
(iv)    “ Applicable Merger ” shall mean the Holdings Merger or the ANR Merger, as applicable.

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(v)    “ FIRPTA Withholding Tax ” with respect to any Alpha Party Shareholder and an Applicable Merger shall equal the product of (x) 15%, (y) the number of shares of Contura Common Stock such Alpha Party Shareholder is entitled to receive as consideration in such Applicable Merger, and (z) the Applicable Contura Share Price.
(vi)    “ Tax Certificate ” shall mean (1) a certification, signed under penalties of perjury by an Alpha Party Shareholder and dated not more than 30 days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that such Alpha Party Shareholder is not a “foreign person” as defined in Section 1445 of the Code, or (2) if such Alpha Party Shareholder does not deliver the certification described in the preceding clause (1) and holds more than 5% of the shares of Contura Common Stock immediately following the Applicable Merger, a “notification of a nonrecognition transaction” with respect to such merger, signed under penalties of perjury, that satisfies the requirements of Treasury Regulation Section 1.1445-2(d)(2)(iii) and describes the law and facts supporting the claim that recognition of gain or loss is not required with respect to the transfer by such Alpha Party Shareholder.
(e)    Prior to the Closing, the parties to this Agreement shall cooperate in good faith to address the impact of Section 1504(a)(3) of the Code following the closing of the Mergers, including (if Contura so elects) in seeking a waiver from the Internal Revenue Service under Section 1504(a)(3)(B) of the Code, provided that Contura shall not submit such request for a waiver to the Internal Revenue Service without the prior written consent of the Alpha Parties (such consent not to be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, the consent of the Alpha Parties (1) shall not be required for communication by Contura or its advisors with the Internal Revenue Service on a “no names” basis and (2) may be withheld consistent with the preceding sentence if the Alpha Parties determine in their sole discretion that seeking the waiver is not advisable. Without limiting the generality of the foregoing and notwithstanding any other provision of this Agreement, (i) at the election of Contura and with the consent of the Alpha Parties (such consent not to be unreasonably withheld, conditioned or delayed), immediately after the Holdings Merger and immediately before the ANR Merger, the Holdings Merger Surviving Corporation may be merged with and into a limited liability company that is treated as disregarded from Contura for U.S. Federal income tax purposes (the “ Holdings Forward Merger ”) and (ii) if Contura has elected to have the Holdings Forward Merger occur, at the election of Contura and with the consent of the Alpha Parties (such consent not to be unreasonably withheld, conditioned or delayed), immediately after the Holdings Forward Merger and the ANR Merger, the ANR Merger Surviving Corporation may be merged with and into a limited liability company that is treated as disregarded from Contura for U.S. Federal income tax purposes (the “ ANR Forward Merger ” and collectively with the Holdings Forward Merger, the “ Forward Mergers ”), in each case, so long as Contura has received, at least three days prior to the Closing, a “should” level of opinion from Davis Polk & Wardwell LLP (or other nationally recognized firm reasonably acceptable to the Alpha Parties) (“ Tax Counsel ”) that, if to be effected, the Holdings Merger together with the Holdings Forward Merger, and, if to be effected, the ANR Merger together with the ANR Forward Merger, respectively, shall each constitute a reorganization within the meaning of Section 368(a) of the Code. If the Holdings Forward Merger is, or both Forward Mergers are, to be effected, each of the parties shall use its reasonable best efforts to deliver to Tax Counsel a Tax representation letter, dated as of the date of such opinion and signed by an officer, containing customary representations, warranties and covenants, and in form and substance reasonably satisfactory to such Tax Counsel, as is necessary, appropriate or customary to enable Tax Counsel to render the opinion(s) described in this ‎Section 5.17(e).
(f)    In the event that both Forward Mergers are effected, notwithstanding any other provision of this Agreement, Contura may, unless each of the Alpha Parties delivers an Alpha Company Certificate at least ten days prior to the Closing Date, (i) delay the deposit with the Exchange Agent of the shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be delivered to an Alpha Party Shareholder as consideration in an Applicable Merger until the earlier of (x) the time such Alpha Party Shareholder delivers to Contura a Tax Certificate and (y) 15 days after the closing of the Applicable Merger and (ii) if clause (y) applies with respect to any Alpha Party Shareholder, use commercially reasonable efforts to cause the Exchange Agent to take the actions specified in clauses (i), (ii), and (iii) of ‎Section 5.17(c) with respect to such Alpha Party Shareholder, subject to ‎Section 5.17(g).
(g)    In the event that, despite the use of commercially reasonable efforts by Contura to obtain the agreement of the Exchange Agent to sell shares of Contura Common Stock on behalf of Alpha Party Shareholders (as contemplated by ‎Section 5.17(c) and ‎Section 5.17(f)), the Exchange Agent does not so agree, Contura may, unless each of the Alpha Parties delivers an Alpha Company Certificate at least ten days prior to the Closing Date, (i) delay the deposit with the Exchange Agent of the shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be

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delivered to an Alpha Party Shareholder as consideration in an Applicable Merger until the earlier of (x) the time such Alpha Party Shareholder delivers to Contura a Tax Certificate and (y) 15 days after the closing of an Applicable Merger and (ii) if clause (y) applies with respect to any Alpha Party Shareholder:
(i)    Contura shall promptly sell, on behalf of such Alpha Party Shareholder, shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be delivered to such Alpha Party Shareholder as consideration in such Applicable Merger in sufficient number to yield net proceeds equal to the sum of (A) the FIRPTA Withholding Tax with respect to such Alpha Party Shareholder and such Applicable Merger and (B) the amount of costs, expenses and fees incurred by Contura, as applicable, in connection with selling such shares; which amount described in (B) shall be retained by Contura to reimburse it for such costs, expenses and fees;
(ii)    Contura shall promptly report and pay to the Internal Revenue Service as required by Treasury Regulations Section 1.1445-1; and
(iii)    Contura shall promptly deliver the remaining shares of Contura Common Stock to the Exchange Agent and the Exchange Agent shall (subject to the other provisions of this Agreement) deliver such shares to such Alpha Party Shareholder.
(h)    It is intended that, if either (i) the Holdings Forward Merger is effected, or (ii) both Forward Mergers are effected, the Holdings Merger together with the Holdings Forward Merger, and, if the ANR Forward Merger is effected, the ANR Merger together with ANR Forward Merger, shall each constitute a “reorganization” within the meaning of Section 368(a) of the Code, and that this Agreement shall constitute a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). Subject to the other provisions of this Agreement, each of the Alpha Parties and Contura shall use its reasonable best efforts (i) to cause the Holdings Merger together with the Holdings Forward Merger, if effected, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code, (ii) to cause the ANR Merger together with the ANR Forward Merger, if effected, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings, ANR and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code and (iii) not to, and not permit or cause any of their respective Subsidiaries or Affiliates to, take or cause to be taken any action reasonably likely to cause either the Holdings Merger together with the Holdings Forward Merger, if effected, or the ANR Merger together with the ANR Forward Merger, if effected, to fail to qualify as a “reorganization” under Section 368(a) of the Code.
(i)    For the avoidance of doubt, the Forward Mergers shall be included amongst the transactions contemplated by this Agreement for all purposes hereunder (including, for the avoidance of doubt, for purposes of any representations and warranties of any party that address the consequences of the consummation of the transactions contemplated by this Agreement). The Holdings Forward Merger shall be deemed to occur simultaneously with the Holdings Merger, and the ANR Forward Merger shall be deemed to occur simultaneously with the ANR Merger, in each case for all purposes under the representations and warranties in ‎Article 3 and ‎Article 4. In addition, for all purposes under this Agreement, the entity that survives the Holdings Forward Merger shall thereafter be deemed to be the Holdings Merger Surviving Corporation and the entity that survives the ANR Forward Merger shall thereafter be deemed to be the ANR Merger Surviving Corporation.
(j)    Notwithstanding any other provision of this Agreement, Contura shall not be considered to violate (or be in breach of) any provision of this Agreement relating to the status of the Mergers contemplated by this Agreement as reorganizations within the meaning of Section 368 of the Code (including ‎Section 4.11(j), ‎Section 5.02, ‎Section 5.17(a) and ‎Section 5.17(h)) as a result of any action taken pursuant to the provisions of this Agreement relating to withholding.
ARTICLE 6
CONDITIONS TO CONSUMMATION OF THE MERGERS
Section 6.01.     Conditions to Each Party’s Obligation to Effect the Mergers . The respective obligations of the parties to effect the Mergers shall be subject to the satisfaction at or prior to the First Effective Time of the following conditions:

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(a)     Stockholder Approvals . The Alpha Stockholder Approvals and the Contura Stockholder Approval shall have been obtained.
(b)     No Injunctions or Restraints; Illegality . No order, injunction, decree or other legal restraint issued by any Governmental Entity of competent jurisdiction or other Law, rule or legal restraint shall be in effect preventing, restraining or rendering illegal the consummation of any of the transactions contemplated by this Agreement. No Governmental Entity shall have commenced and not withdrawn any Proceeding seeking to enjoin, restrain or otherwise prohibit any of the transactions contemplated by this Agreement.
(c)     HSR Clearance . The waiting period under the HSR Act applicable to the Mergers shall have expired or early termination thereof shall have been granted without the imposition of a Materially Burdensome Condition.
(d)     Form S-4 . The Form S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued and no Proceedings for that purpose shall have been initiated or threatened by the SEC.
Section 6.02.     Conditions to Obligations of Contura . The obligation of Contura to effect the Mergers is also subject to the satisfaction, or waiver by Contura, at or prior to the First Effective Time, of the following conditions:
(a)     Representations and Warranties of the Alpha Parties . (i) The representations and warranties of the Alpha Parties set forth in Sections 3.01(c), 3.03, 3.04, 3.06(b), 3.22, 3.23, 3.24 and 3.25 shall be true and correct in all respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), (ii) the representations and warranties of the Alpha Parties set forth in Sections 3.02(a), 3.02(b), 3.02(c), and 3.02(d) shall be true and correct in all but de minimis respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), and (iii) the other representations and warranties of the Alpha Parties set forth in Article 3 shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Alpha Material Adverse Effect,” “in all material respects,” “material” or similar terms) as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date) except, in the case of this clause (iii), where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)     Performance of Obligations of the Alpha Parties . Each Alpha Party shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the First Effective Time.
(c)     Officers Certificate . Contura shall have received a certificate signed on behalf of each Alpha Party by its Chief Executive Officer or Chief Financial Officer certifying as to the matters set forth in Sections 6.02(a) and 6.02(b).
(d)     Appraisal Shares . The aggregate number of Appraisal Shares (excluding, for purposes of this Section 6.01(d), any Appraisal Shares held by any Person who also holds more than 1% of the shares of Contura Common Stock outstanding as of the date of the Alpha Special Meetings and excluding any Appraisal Shares for which a demand for appraisal has been withdrawn, abandoned or lost) shall not equal more than 10% of the aggregate number of shares of Holdings Common Stock and Class C-1 Common Stock issued and outstanding as of immediately prior to the First Effective Time.
(e)     Consents . All waivers, consents and approvals set forth under Section 6.02(e) of the Alpha Disclosure Schedule shall have been obtained, in each case in form and substance reasonably satisfactory Contura.
Section 6.03.     Conditions to Obligations of the Alpha Parties . The obligation of the Alpha Parties to effect the Mergers is also subject to the satisfaction or waiver by the Alpha Parties at or prior to the First Effective Time of the following conditions:

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(a)     Representations and Warranties of Contura . (i) The representations and warranties of Contura set forth in Sections 4.03, 4.04, 4.06(b), 4.22, 4.23 and 4.24 shall be true and correct in all respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), (ii) the representations and warranties of Contura set forth in Sections 4.02(a), 4.02(b) and 4.02(c) shall be true and correct in all but de minimis respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), and (iii) the other representations and warranties of Contura set forth in Article 4 shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Contura Material Adverse Effect,” “in all material respects,” “material” or similar terms) as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date) except, in the case of this clause (iii), where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(b)     Performance of Obligations of Contura . Contura shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the First Effective Time.
(c)     Listing . The shares of Contura Common Stock to be issued upon consummation of the Mergers shall have been authorized for listing on the NYSE or NASDAQ, subject to official notice of issuance.
(d)     Officers Certificate . ANR shall have received a certificate signed on behalf of Contura by its Chief Executive Officer or Chief Financial Officer certifying as to the matters set forth in Sections 6.03(a) and 6.03(b).
(e)     Contura Charter Amendment . The Contura Stockholder Approval shall have been obtained and the Contura Charter Amendment shall have been filed with the Delaware Secretary of State and shall be effective.
ARTICLE 7
TERMINATION; AMENDMENT; WAIVER
Section 7.01.     Termination . This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time (notwithstanding that the Alpha Stockholder Approvals may have been obtained prior to the First Effective Time):
(a)    by mutual written consent of Contura and the Alpha Parties;
(b)    by either Contura, on the one hand, or by the Alpha Parties, on the other hand, if any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree or ruling enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement and such order, decree, or ruling shall have become final and non-appealable; provided that a party shall not have the right to terminate this Agreement pursuant to this Section 7.01(b) if such party has breached any of its obligations under Section 5.07 and such breach was the primary cause of, or primarily resulted in, the issuance of such order, decree or ruling;
(c)    by either Contura, on the one hand, or by the Alpha Parties, on the other hand, if the Mergers shall not have been consummated on or before the Outside Date; provided that the right to terminate pursuant to this Section 7.01(c) shall not be available to any party whose breach of this Agreement or failure to perform or comply in all material respects with the covenants and agreements of such Person set forth in this Agreement was the primary cause of, or primarily resulted in, the failure of the Closing to occur on or prior to the Outside Date;
(d)    by either Contura, on the one hand, or by the Alpha Parties, on the other hand, if an Alpha Special Meeting shall have been convened and a vote with respect to the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) with respect to the Holdings Merger or the ANR Merger, as applicable, contained in this Agreement shall have been taken thereat (or at any adjournment or postponement thereof) and the applicable Alpha

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Stockholder Approval shall not have been obtained; provided that a party shall not have the right to terminate this Agreement pursuant to this Section 7.01(d) if such party has materially breached any of its obligations under Section 5.05;
(e)    by the Alpha Parties, if there shall have been a breach by Contura of any of its covenants, agreements, representations or warranties set forth in this Agreement which breach, either individually or in the aggregate, would result, if occurring or continuing at the First Effective Time, in the failure of the conditions set forth in Section 6.03(a) or 6.03(b), as the case may be, and which is not cured on or before the earlier of the Outside Date and the 30th day following written notice to Contura, or which by its nature cannot be cured within such time period; provided that the Alpha Parties shall not have the right to terminate this Agreement pursuant to this Section 7.01(e) if any Alpha Party is then in material breach of this Agreement;
(f)    by Contura, if there shall have been a breach by any Alpha Party of any of its covenants, agreements, representations or warranties set forth in this Agreement, which breach, either individually or in the aggregate, would result, if occurring or continuing at the First Effective Time, in the failure of the conditions set forth in Section 6.02(a) or 6.02(b), as the case may be, and which is not cured on or before the earlier of the Outside Date and the 30th day following written notice to ANR, or which by its nature cannot be cured within such time period; provided that Contura shall not have the right to terminate this Agreement pursuant to this Section 7.01(f) if Contura is then in material breach of this Agreement;
(g)    by Contura, prior to obtaining the Alpha Stockholder Approvals, if (i) a Change of Alpha Board Recommendation shall have occurred, (ii) the Holdings Board and the ANR Board shall have failed to recommend against any publicly announced Alpha Acquisition Proposal and reaffirm the Alpha Board Recommendation, in each case, within ten Business Days following the public announcement of such Alpha Acquisition Proposal and in any event at least four Business Days prior to the Alpha Special Meetings, (iii) the Alpha Parties shall have failed to include the Alpha Board Recommendations in the Joint Proxy Statement distributed to their stockholders or (iv) either Alpha Party shall have failed to perform in any material respect any of its obligations under Section 5.03 or Section 5.05;
(h)    by the Alpha Parties at any time prior to the twenty fifth Business Day following the date of this Agreement, if the Contura Charter Amendment has not been approved by (i) the beneficial owners of a majority of the outstanding shares of Contura Common Stock within three Business Days after the execution and delivery of this Agreement or (ii) the record holders of a majority of the outstanding shares of Contura Common Stock within twenty Business Days after the execution and delivery of this Agreement;
(i)    by the Alpha Parties, if Contura enters into a binding agreement to consummate, or consummates, a Contura Sale Transaction; or
(j)    by the Alpha Parties, if (i) at any time following the Alpha Special Meetings and prior to the First Effective Time, the condition set forth in Section 6.02(d) shall not have been satisfied or irrevocably waived by Contura, and (ii) within five Business Days following written notice by the Alpha Parties to Contura that the Alpha Parties request the waiver of such condition, Contura shall not have irrevocably waived such condition in a written notice delivered to the Alpha Parties.
The party desiring to terminate this Agreement pursuant to any of clauses (b) through (j) of this Section 7.01 shall give written notice of such termination to the other party in accordance with Section 8.05, specifying the provision or provisions hereof pursuant to which such termination is effected.
Section 7.02.     Effect of Termination . If this Agreement is terminated and the Mergers are abandoned pursuant to Section 7.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party or its directors, officers or stockholders, other than the provisions of Section 5.06(b), this Section 7.02, Section 7.03, Section 7.04 and Section 7.05 and Article 8, which provisions shall survive such termination; provided, however, no such termination shall relieve or release any party from any liabilities or damages resulting from any Willful Breach occurring prior to the termination of this Agreement.
Section 7.03.     Fees and Expenses . (a) Whether or not the Mergers are consummated, except as otherwise specifically provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

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(b)    If (i) at any time after the date of this Agreement an Alpha Acquisition Proposal shall have been made directly to the stockholders of any Alpha Party or otherwise become publicly known or any Person shall have publicly announced or made known an intention (whether or not conditional) to make an Alpha Acquisition Proposal, and, in each case, such Alpha Acquisition Proposal has not been publicly withdrawn at the time of the event giving rise to termination of this Agreement as described in clause (ii) below, and (ii) following the occurrence of an event described in the preceding clause (i), this Agreement is terminated by Contura or the Alpha Parties pursuant to Section 7.01(c) or Section 7.01(d) or by Contura pursuant to Section 7.01(f), and (iii) either (A) on or before the date that is twelve months after the date of such termination described in clause (ii) above, any Alpha Party consummates any Alpha Acquisition Proposal (whether or not the same Alpha Acquisition Proposal described in clause (i)) or (B) on or before the date that is twelve months after the date of such termination described in clause (ii) above, any Alpha Party enters into a definitive agreement in respect of any Alpha Acquisition Proposal (whether or not the same Alpha Acquisition Proposal described in clause (i)), then the Alpha Parties shall pay to Contura, the Termination Fee on the date of the event described in clause (iii)(A) or (iii)(B); provided that for purposes of only this Section 7.03(b), the term “ Alpha Acquisition Proposal ” shall have the meaning assigned to such term in Section 5.03(h), except that the references therein to “20%” shall be deemed to be references to “more than 50%.”
(c)    If Contura terminates this Agreement pursuant to Section 7.01(g) (or if this Agreement is terminated pursuant to Section 7.01(d) at a time when Contura could have terminated this Agreement pursuant to Section 7.01(g)), then the Alpha Parties shall pay to Contura, as promptly as reasonably practicable (and in any event within two Business Days) after such termination, the Termination Fee.
(d)    If this Agreement is terminated pursuant to Section 7.01(d), the Alpha Parties shall reimburse Contura and its Affiliates (by wire transfer of immediately available funds), no later than two Business Days after submission of documentation therefor, for 100% of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with or related to the transactions contemplated by this Agreement (the “ Expense Reimbursement ”), up to an aggregate maximum reimbursement of $9,000,000.
(e)    If this Agreement is terminated pursuant to (x) Section 7.01(b) and the applicable order, decree or ruling giving rise to such termination right is issued under or pursuant to any Antitrust Law, or (y) Section 7.01(c) and, in either case, at the time of such termination all of the conditions set forth in Section 6.01 (other than Section 6.01(b) (with respect to matters under Antitrust Laws) and Section 6.01(c)) and Section 6.02 (other than those conditions that by their nature are to be satisfied at the Closing but which conditions would be satisfied if the Closing Date were the date of termination) have been satisfied, then, Contura shall pay to the Alpha Parties, as promptly as reasonably practicable (and in any event within two Business Days) after such termination, the Reverse Termination Fee.
(f)    For purposes of this Agreement, “ Termination Fee ” means an amount in cash equal to $19,000,000. The Termination Fee shall be paid (when due and owing) by the Alpha Parties to Contura by wire transfer of immediately available funds to the account designated in writing by Contura.
(g)    For purposes of this Agreement, “ Reverse Termination Fee ” means an amount in cash equal to $19,000,000. The Reverse Termination Fee shall be paid (when due and owing) by the Contura to the Alpha Parties by wire transfer of immediately available funds to the account designated in writing by the Alpha Parties.
(h)    Each party hereto acknowledges that the agreements contained in this Section 7.03 are an integral part of the transactions contemplated by this Agreement. In the event that the Alpha Parties shall fail to pay the Termination Fee or the Expense Reimbursement (or any portions of the Termination Fee or the Expense Reimbursement) when due, the Alpha Parties shall reimburse Contura for all reasonable costs and expenses actually incurred or accrued by Contura (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.03, together with interest on the amount of such amount or portion thereof at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment. In the event that Contura shall fail to pay the Reverse Termination Fee (or any portions of the Reverse Termination Fee) when due, Contura shall reimburse the Alpha Parties for all reasonable costs and expenses actually incurred or accrued by the Alpha Parties (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.03, together with interest on the amount of such amount or portion thereof at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.

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(i)    In no event shall the Alpha Parties be required to pay the Termination Fee or Expense Reimbursement on more than one occasion. Any amounts paid by the Alpha Parties with respect to the Expense Reimbursement shall be credited towards any future amounts payable by the Alpha Parties with respect to the Termination Fee. In no event shall Contura be required to pay the Reverse Termination Fee on more than one occasion.
(j)    Except in the case of Willful Breach, each party agrees that notwithstanding anything in this Agreement to the contrary, (i) in the event that the Termination Fee becomes payable and is actually paid in accordance with this Section 7.03, the payment of such Termination Fee shall be the sole and exclusive remedy of Contura and its Affiliates and its and their respective stockholders, officers, directors, employees and Representatives against the Alpha Parties or any of their respective Representatives or Affiliates, (ii) in the event that the Reverse Termination Fee becomes payable and is actually paid in accordance with this Section 7.03, the payment of such Reverse Termination Fee shall be the sole and exclusive remedy of the Alpha Parties and their respective Affiliates and its and their respective stockholders, officers, directors, employees and Representatives against Contura or any of their respective Representatives or Affiliates, (iii) in no event will any party or its Affiliates or its and their respective stockholders, officers, directors, employees or Representatives seek to recover any other money damages or seek any other remedy based on a claim at law or in equity with respect to (A) any loss suffered, directly or indirectly, as a result of the failure of the Mergers to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, (iv) upon payment of any Termination Fee in accordance with this Section 7.03, no Alpha Party nor any of its Affiliates or Representatives shall have any further liability or obligation to Contura or its Affiliates or its and their respective stockholders, officers, directors, employees or Representatives relating to or arising out of this Agreement or the transactions contemplated hereby, except as provided in Section 7.02, and (v) upon payment of any Reverse Termination Fee in accordance with this Section 7.03, neither Contura nor any of its Affiliates or Representatives shall have any further liability or obligation to any Alpha Party or its Affiliates or its and their respective stockholders, officers, directors, employees or Representatives relating to or arising out of this Agreement or the transactions contemplated hereby, except as provided in Section 7.02.
Section 7.04.     Amendment . To the extent permitted by applicable Law, this Agreement may be amended at any time before or after the Alpha Stockholder Approvals but, after such adoption of the Alpha Stockholder Approvals, no amendment shall be made which modifies the Merger Consideration, or which requires the approval of the stockholders of the Alpha Parties under the DGCL, without the approval of the stockholders of the Alpha Parties. This Agreement may not be amended, changed, supplemented or otherwise modified except by an instrument in writing signed on behalf of all of the parties hereto.
Section 7.05.     Extension; Waiver; Remedies . (a) At any time prior to the Closing, each party hereto may, to the extent permitted by applicable Law, (i) extend the time for the performance of any of the obligations or other acts of any other party hereto, (ii) waive any inaccuracies in the representations and warranties contained herein by any other party or in any document, certificate or writing delivered pursuant hereto by any other party, or (iii) waive compliance by any other party with any of the agreements or conditions contained herein. Any agreement on the part of any party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party against which such waiver or extension is to be enforced.
(b)    The failure of any party hereto to exercise any rights, power or remedy provided under this Agreement, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.
ARTICLE 8
MISCELLANEOUS
Section 8.01.     Representations and Warranties . The representations and warranties made in Articles ‎3 and ‎4 or any instrument delivered pursuant to this Agreement shall not survive beyond the Closing. Each covenant or agreement of the parties in this Agreement shall not survive beyond the Closing, other than any covenant or agreement that by its terms contemplates performance after the Closing, including Sections ‎1.04, ‎5.08, and ‎5.09, which shall survive until fully performed.

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Section 8.02.     Entire Agreement; Assignment . This Agreement, together with the Alpha Disclosure Schedule, the Contura Disclosure Schedule, and the Confidentiality Agreement and the exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to subject matter hereof. The Agreement shall not be assigned by any party by operation of law or otherwise without the prior written consent of the other parties.
Section 8.03.     Jurisdiction; Venue . Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of the Court of Chancery of the State of Delaware or if jurisdiction in such court is not available, any court of the United States located in the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action or proceeding relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the Court of Chancery of the State of Delaware or, if under applicable law exclusive jurisdiction over such matter is vested in the federal courts, any court of the United States located in the State of Delaware.
Section 8.04.     Validity; Specific Performance . (a) If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of law or public policy in any jurisdiction, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect and shall not be affected thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced in any jurisdiction, this Agreement will be reformed, construed and enforced in such jurisdiction so as to effect the original intent of the parties as closely as possible to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
(b)    The parties hereto agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any provision of this Agreement were not performed in accordance with their specific terms hereof or were otherwise breached and that it is accordingly agreed that, prior to termination of this Agreement, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or equity. No party shall be required to provide, furnish or post any bond or other security in connection with any such injunction or proceeding for specific performance, and each party hereby irrevocably waives any right it may have to require the provision, furnishing or posting of any such bond or other security.

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Section 8.05.     Notices . All notices, requests, claims, demands and other communications hereunder shall be given (and shall be deemed to have been duly received if given) by hand delivery in writing, by email transmission with confirmation of receipt or by recognized overnight courier service, as follows :
if to Contura:
 
Contura Energy, Inc.
 
P.O. Box 848, Bristol, TN 37621-0848 (U.S. mail)
 
340 Martin Luther King Jr. Blvd., Bristol, TN 37620 (physical address)
 
Attention:    Mark M. Manno, Chief Legal Officer
 
Email:        mark.manno@conturaenergy.com
 
 
with a copy to:
 
Davis Polk & Wardwell LLP
 
450 Lexington Avenue
 
New York, New York 10017
 
Attention:    William L. Taylor
 
Lee Hochbaum
 
Email:        william.taylor@davispolk.com
 
lee.hochbaum@davispolk.com
 
 
if to an Alpha Party:
 
ANR, Inc.
 
300 Running Right Way
 
Julian, West Virginia 25529
 
Attention:    Andrew B. McCallister
 
Email:        dmccallister@alphanr.com
 
 
with a copy to:
 
Katten Muchin Rosenman LLP
 
575 Madison Avenue
 
New York, New York 10022
 
Attention:    Steven Reisman
 
Mark D. Wood
 
Evan Borenstein
 
Email:        sreisman@kattenlaw.com
 
mark.wood@kattenlaw.com
 
evan.borenstein@kattenlaw.com
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
Section 8.06.    Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts made and to be performed entirely within that State.
Section 8.07.     Descriptive Headings . The descriptive headings herein (including the Table of Contents) are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

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Section 8.08.     Parties in Interest . This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement, except (i) from and after (and at no time before) the Closing: (A) the provisions of Section 1.04 shall be for the benefit of and enforceable by the Initial Alpha Director Designees and the Alpha Directors, (B) the provisions of ‎Article 2 providing for the delivery of Merger Consideration shall be for the benefit of and enforceable by the holders of Holdings Common Stock at the First Effective Time and the holders of Class C-1 Common Stock at the Second Effective Time, (C) the provisions of Section 5.09(c) shall be for the benefit of and enforceable by the disqualified individuals described therein, and (D) the provisions of ‎Section 2.03 shall be for the benefit of and enforceable by the holders of ANR Stock Options and the ANR RSUs at the Second Effective Time and (ii) from and after (and at no time before) the Closing, the provisions set forth in ‎Section 5.08 of this Agreement shall be for the benefit of and enforceable by the Indemnified Parties in accordance with ‎Section 5.08(e). Without creating any third party beneficiary rights whatsoever, after the termination of this Agreement without the Closing having occurred, the Alpha Parties may, on behalf of the stockholders of the Alpha Parties as a group, pursue damages exclusively pursuant and subject to the proviso to ‎Section 7.02 and such damages, if any, shall be determined based on the damages to the stockholders of the Alpha Parties as a group.
Section 8.09.     Interpretation . When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” shall not be exclusive. Whenever used in this Agreement, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. For the purposes of this Agreement, any document which is described as being “provided”, “delivered”, “furnished” or “made available” shall be treated as such only if copies of such documents have been included in the applicable party’s virtual data site for the transactions contemplated by this Agreement no later than 10:00 pm Eastern Time on the date of this Agreement. All exhibits and schedules (including the Alpha Disclosure Schedule and Contura Disclosure Schedule) annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
Section 8.10.     Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
Section 8.11.     Certain Definitions . For purposes of this Agreement, the following terms shall have the following meanings:
“ Affiliate ” has the meaning given to such terms in Rule 12b-2 under the Exchange Act.
“ Alpha Material Adverse Effect ” means any change, effect, circumstance, event or occurrence that is materially adverse to (i) the assets, liabilities, business, condition (financial or otherwise) or results of operations of the Alpha Parties and their respective Subsidiaries, taken as a whole, or (ii) the ability of either Alpha Party to timely perform its obligations under this Agreement or to timely consummate the transactions contemplated hereby; provided, however, that, in the case of clause (i) only, changes, effects, circumstances, events or occurrences shall not be deemed to constitute, and shall not be taken into account in determining whether there has been or will be, an Alpha Material Adverse Effect to the extent resulting from (1) general changes after the date hereof in general economic conditions or in the industries in which the Alpha Parties and their respective Subsidiaries operate; (2) changes in Law of general applicability or interpretations thereof by Governmental Entities or changes in generally accepted accounting principles or in accounting standards; (3) the execution, announcement, pendency or performance of this Agreement or the consummation of the transactions contemplated hereby, including the impact thereof on relationships with customers, suppliers, distributors, partners or employees, or any litigation arising relating to this Agreement or the transactions contemplated by this Agreement (provided that this clause (3) shall not apply to the representations and warranties and related conditions contained in this Agreement that, by their terms, speak of the consequences arising out of the execution or performance of this Agreement or the consummation of the transactions contemplated hereby); (4) acts of war or terrorism (or the escalation of the foregoing); (5) a decrease in the market price or volume of the Alpha Capital Stock in and of itself (and not the underlying causes thereof); and (6) the fact, in and of itself (and not the underlying causes thereof) that the Alpha Parties or their respective Subsidiaries failed to meet any projections, forecasts, or revenue or earnings predictions; except to the extent, in the case of clauses (1), (2) and (4), such change, effect,

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circumstance, event or occurrence has a material and disproportionate effect on the Alpha Parties and their respective Subsidiaries, taken as a whole, compared with other companies operating in the industries in which the Alpha Parties and their respective Subsidiaries operate (and in any such case, only such disproportionate impact shall be taken into account for purposes of determining if an Alpha Material Adverse Effect has occurred).
“ ANR Option New Share Amount ” means the number of shares of Class C-1 Common Stock, and if not a whole number, rounded down to the nearest whole number, computed using the following formula: X = (Y * (A – B ))/A, where:
(i)     X = the number of shares of Class C-1 Common Stock to be issued to the applicable ANR Stock Option holder;
(ii)    Y = the total number of shares of Class C-1 Common Stock underlying the applicable ANR Stock Option;
(iii)    A = the Per ANR Share Price; and
(iv)    B = the per share exercise price of the applicable ANR Stock Option;
provided that if B is equal to or greater than A, the ANR Option New Share Amount shall be zero (0).
“ ANR Plan ” means each “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, including each bonus, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based or other employee benefit plan, program, policy, practice, arrangement, agreement, fund or commitment, and each employment, retention, consulting, change in control, salary continuation, termination or severance plan, program, policy, practice, arrangement or agreement entered into, maintained, sponsored or contributed to by ANR or any of its Subsidiaries or to which ANR or any of its Subsidiaries has any obligation to contribute, or with respect to which ANR or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including a liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any Alpha Service Provider or to any beneficiary or dependent thereof.
“ Bankruptcy Plan ” means the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, dated May 27, 2016, as modified and confirmed by the Order Confirming Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as Modified (Docket No. 3038), entered by the Bankruptcy Court on July 12, 2016 in connection with to the Bankruptcy Cases.
“ beneficial ownership ” has the meaning given to such term in Rule 13d-3 under the Exchange Act. Phrases such as “ beneficially own ” or “ own beneficially ” have correlative meanings.
“ Business Day ” means any day other than a Saturday or Sunday or a day on which banks are required or authorized to close in New York, New York.
“ Confidentiality Agreement ” means the confidentiality agreement dated January 29, 2018 by and between ANR and Contura.
“ Controlled Group Liability ” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code and (iv) under corresponding or similar provisions of foreign Laws.
“ Contura Material Adverse Effec t” means any change, effect, circumstance, event or occurrence that is materially adverse to (i) the assets, liabilities, business, condition (financial or otherwise) or results of operations of Contura and its Subsidiaries, taken as a whole, or (ii) the ability of Contura to timely perform its obligations under this Agreement or to timely consummate the transactions contemplated hereby; provided, however, that, in the case of clause (i) only, changes, effects, circumstances, events or occurrences shall not be deemed to constitute, and shall not be taken into account in determining whether there has been or will be, an Contura Material Adverse Effect to the extent resulting from (1) general changes after the date hereof in general economic conditions or in the industries in which Contura and its Subsidiaries operate; (2) changes in Law of general applicability or interpretations thereof by Governmental Entities or changes in generally accepted accounting principles or in accounting standards; (3) the execution, announcement, pendency or performance of this Agreement or the consummation of the transactions contemplated hereby, including the impact thereof on

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relationships with customers, suppliers, distributors, partners or employees, or any litigation arising relating to this Agreement or the transactions contemplated by this Agreement (provided that this clause (3) shall not apply to the representations and warranties and related conditions contained in this Agreement that, by their terms, speak of the consequences arising out of the execution or performance of this Agreement or the consummation of the transactions contemplated hereby); (4) acts of war or terrorism (or the escalation of the foregoing); (5) a decrease in the market price or volume of shares of Contura Common Stock in and of itself (and not the underlying causes thereof); and (6) the fact, in and of itself (and not the underlying causes thereof) that Contura or its Subsidiaries failed to meet any projections, forecasts, or revenue or earnings predictions, except to the extent, in the case of clauses (1), (2) and (4), such change, effect, circumstance, event or occurrence has a material and disproportionate effect on Contura and its Subsidiaries, taken as a whole, compared with other companies operating in the industries in which Contura and its Subsidiaries operate (and in any such case, only such disproportionate impact shall be taken into account for purposes of determining if an Contura Material Adverse Effect has occurred).
“Contura Plan ” means each “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, including each bonus, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based or other employee benefit plan, program, policy, practice, arrangement, agreement, fund or commitment, and each employment, retention, consulting, change in control, salary continuation, termination or severance plan, program, policy, practice, arrangement or agreement entered into, maintained, sponsored or contributed to by Contura or any of its Subsidiaries or to which Contura or any of its Subsidiaries has any obligation to contribute, or with respect to which
Contura or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including a liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any Contura Service Provider or to any beneficiary or dependent thereof.
“ DTA ” means Dominion Terminal Associates, a Virginia partnership.
“ EPA Consent Decree” means the Consent Decree entered by the United States District Court for the Southern District of West Virginia, Charleston Division, on November 26, 2014, in United States of America, et al. v. Alpha Natural Resources, Inc., et al., Civ. No. 2:14-cv-11609.
“ ERISA Affiliate ” with respect to any entity means any trade or business, whether or not incorporated, that, together with such first entity or any of its respective Subsidiaries would be deemed to be a “single employer” within the meaning of Section 4001(b) of ERISA.
“ Exchange Ratio” means 0.4071.
“ Excluded Intervening Event ” means (1) general changes after the date hereof in general economic conditions or in the industries in which the Alpha Parties, Contura or their Subsidiaries operate; (2) changes in Law of general applicability or interpretations thereof by Governmental Entities or changes in generally accepted accounting principles or in accounting standards; (3) the execution, announcement, pendency or performance of this Agreement or the consummation of the transactions contemplated hereby, including the impact thereof on relationships with customers, suppliers, distributors, partners or employees, or any litigation arising from or relating to this Agreement or the transactions contemplated by this Agreement; (4) acts of war or terrorism (or the escalation of the foregoing); (5) a decrease in the market price or volume of shares of Alpha Capital Stock or Contura Common Stock in and of itself (and not the underlying causes thereof); and (6) the fact, in and of itself (and not the underlying causes thereof) that the Alpha Parties, Contura or their Subsidiaries failed to meet any projections, forecasts, or revenue or earnings predictions except to the extent, in the case of clauses (1), (2) and (4), such change, effect, circumstance, event or occurrence has a material and disproportionate effect on the Alpha Parties and their respective Subsidiaries, taken as a whole, or Contura and its Subsidiaries, taken as a whole, compared with other companies operating in the industries in which the Alpha Parties, Contura and their respective Subsidiaries operate.
“ Indebtedness ” of any Person means, as of any date, the amount equal to the sum (without any double-counting) of the following obligations (whether or not then due and payable), to the extent they are of such Person or its Subsidiary or guaranteed by such Person or its Subsidiary as of such date: (i) all outstanding indebtedness for borrowed money owed to third parties, (ii) accrued interest payable with respect to Indebtedness referred to in clause (i), (iii) all obligations for the deferred purchase price of property or services (including any potential future earnout, purchase price adjustment or similar payments but not including trade payables in the ordinary course of business consistent with past practice), (iv) all

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obligations evidenced by notes, bonds, debentures or other similar instruments (whether or not convertible), (v) all obligations under indentures or arising out of any financial hedging, swap or similar arrangements, and (vi) all obligations as lessee that would be required to be capitalized in accordance with GAAP.
“ Independence Standards ” means the applicable independence standards for service on the Contura Board under the NYSE listing standards (or the NASDAQ listing standards, if applicable), the rules and regulations of the SEC or Contura’s written corporate governance guidelines (as such guidelines apply to all non-employee members of the Contura Board).
“ knowledge ” means (i) with respect to any Alpha Party, the actual knowledge of the individuals listed in Section 8.11(a) of the Alpha Disclosure Schedule after reasonable inquiry and (ii) with respect to Contura, the actual knowledge of the individuals listed in Section 8.11(a) of the Contura Disclosure Schedule after reasonable inquiry.
“ Lien ” means any mortgage, deed of trust, lien (statutory or other), pledge, security interest, claim, covenant, condition, restriction, option, right of first offer or refusal, charge, easement, right-of-way, encroachment, third party right, limitation in voting right or other encumbrance or title defect of any kind or nature.
“ NASDAQ ” means the NASDAQ Global Market or the NASDAQ Global Select Market.
“ NYSE ” means the New York Stock Exchange.
“ Outside Date ” means December 29, 2018.
“ Per ANR Share Price ” means the product of (a) the arithmetic average of the Weighted Average Price of the Contura Common Stock on each of the 15 consecutive Trading Days ending on the second to last Trading Day prior to the Second Effective Time (the “ Per Contura Share Price ”), and (b) the Exchange Ratio.
“ Owner Trust ” means Bank of Utah, not in its individual capacity, but solely as owner trustee under the Trust Agreement N731BP dated July 26, 2016.
“ Permit ” means any registration, application, license, request for exemption, clearance, approval, permit, franchise and other regulatory authorization, in each instance, from Governmental Entities having jurisdiction.
“ Permitted Liens ” means (i) statutory liens securing payments not yet due, (ii) such imperfections or irregularities of title, easements, trackage rights, leases, licenses, special assessments, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, do not materially affect the use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties, (iii) mortgages, or deeds of trust, security interests or other encumbrances on title related to indebtedness reflected on the consolidated financial statements (x) of the Alpha Parties set forth in Section 8.11(b) of the Alpha Disclosure Schedule or (y) of Contura set forth in Section 8.11(b) of the Contura Disclosure Schedule, (iv) Liens for Taxes not yet due and payable or that are being contested in good faith and by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP, (v) mechanics’, materialmen’s or other Liens or security interests arising by operation of law that secure a liquidated amount that are being contested in good faith and by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP, (vi) any other Liens that would not be material to the Alpha Parties or Contura, as applicable, (vii) pledges or deposits to secure obligations under workers’ compensation Laws or similar legislation or to secure public or statutory obligations, and (viii) pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary course of business.
“ Person ” means any individual, corporation, limited liability company, partnership, association, trust, estate or other entity or organization, including any Governmental Entity.
“ Representatives ” means, when used with respect to any Person, the directors, officers, employees, consultants, financial advisors, accountants, legal counsel, investment bankers, and other agents, advisors and representatives of such Person, as applicable, and its Subsidiaries.

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“ Subsidiary ” means, when used with reference to a Person, any other Person (other than natural persons) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions, or a majority of the outstanding voting securities of which, are owned directly or indirectly by such first Person; provided that, for purposes of this Agreement, neither DTA nor Owner Trust shall be deemed a Subsidiary of Contura.
“ Trading Day ” means any Business Day on which the Contura Common Stock is traded in the over-the- counter market.
“ Treasury Regulations ” means the regulations promulgated under the Code, as amended from time to time (including any successor regulations).
“ Weighted Average Price ” means the dollar volume-weighted average price for the Contura Common Stock in the over-the-counter market during the period beginning at 9:30 a.m., New York City time, and ending at 4:00 p.m., New York City time, as reported by Bloomberg Markets (or any successor thereto, “ Bloomberg ”) through its “Volume at Price” function, or, if no dollar volume-weighted average price is reported for the Contura Common Stock by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for the Contura Common Stock as reported by OTC Markets Group (or any successor thereto). All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during any period during which the arithmetic average of the Weighted Average Prices is being determined.
“ Willful Breach ” means a material breach of, or failure to perform any of the covenants or other agreements contained in, this Agreement that is a consequence of an act or failure to act by the breaching or non-performing party with actual knowledge, or knowledge that a Person acting reasonably under the circumstances should have, that such party’s act or failure to act would result in or constitute a breach of or failure of performance under this Agreement.
[ Remainder of page intentionally left blank. ]

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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its officers thereunto duly authorized, all at or on the day and year first above written.
ALPHA NATURAL RESOURCES HOLDINGS, INC.
By:
 
 
Name:
 
Title:

ANR, INC.
By:
 
 
Name:
 
Title:

CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:

PRIME ACQUISITION I, INC.
By:
 
 
Name:
 
Title:

PRIME ACQUISITION II, INC.
By:
 
 
Name:
 
Title:




A-77

EXHIBIT A

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONTURA ENERGY, INC.
Pursuant to the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (“ Delaware Law ”), Contura Energy, Inc., a corporation organized under the laws of the State of Delaware, does hereby certify that:
FIRST: The present name of the corporation is Contura Energy, Inc. (the “ Corporation ”). The Corporation was incorporated on June 10, 2016 under the name Contura Energy, Inc., pursuant to Delaware Law.
SECOND: The Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety as hereinafter provided for (the “ Second Amended and Restated Certificate of Incorporation ”). The Second Amended and Restated Certificate of Incorporation herein certified has been duly adopted by the Corporation’s Board of Directors and stockholders in accordance with the provisions of Sections 228, 242 and 245 of Delaware Law. The Second Amended and Restated Certificate of Incorporation shall become effective upon filing with the Secretary of State of the State of Delaware.
THIRD: The Second Amended and Restated Certificate of Incorporation of the Corporation shall, at the effective time, read as follows:

ARTICLE 1.
NAME
The name of the corporation is Contura Energy, Inc. (the “ Corporation ”).

ARTICLE 2.
REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE 3.
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under Delaware Law.
ARTICLE 4.
CAPITAL STOCK
(A)      Authorized Shares
1.     Classes of Stock. The total number of shares of stock that the Corporation shall have authority to issue is 55,000,000, consisting of 50,000,000 shares of Common Stock, par value $0.01 per share (the ‘ Common Stock ’), and 5,000,000 shares of Preferred Stock, par value $0.01 per share (the ‘ Preferred Stock ’).

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2.      Preferred Stock. The Board of Directors is hereby empowered, without any action or vote by the Corporation’s stockholders (except as may otherwise be provided by the terms of any class or series of Preferred Stock then outstanding), to authorize by resolution or resolutions from time to time the issuance of one or more classes or series of Preferred Stock and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by Delaware Law.
(B)      Voting Rights
Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of such affected class or series are entitled, either separately or together with the holders of one or more other such classes or series, to vote thereon pursuant to this Second Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) or pursuant to Delaware Law.
(C)      Dividends
Subject to the rights of any holders of any class or series of Preferred Stock then outstanding, the holders of Common Stock shall be entitled to the payment of dividends when and as declared by the Board of Directors in accordance with applicable law and to receive other distributions from the Corporation. Any dividends declared by the Board of Directors to the holders of the then-outstanding Common Stock shall be paid to the holders thereof pro rata in accordance with the number of shares of Common Stock held by each such holder as of the record date of such dividend.

ARTICLE 5.
BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation (the “ Bylaws ”).
The stockholders may adopt, amend or repeal the Bylaws only with the affirmative vote of the holders of not less than 66 2/3% of the voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.

ARTICLE 6.
BOARD OF DIRECTORS
(A)      Power of the Board of Directors . The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors.
(B)      Number of Directors . The number of directors which shall constitute the Board of Directors shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the Board of Directors.
(C)      Election of Directors . Each director shall be elected annually at each annual meeting of stockholders to hold office for a term expiring at the next annual meeting of stockholders, with each director to hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal. In no event will a decrease in the number of directors shorten the term of any incumbent director. There shall be no cumulative voting in the election of directors. Election of directors need not be by written ballot unless the Bylaws so provide.

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(D)      Vacancies . Vacancies on the Board of Directors resulting from death, resignation, removal or otherwise and newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors calls a special meeting for which the election of directors is included as business or as otherwise required by law, be filled solely by a majority of the directors then in office (although less than a quorum) or by the sole remaining director, and each director so elected shall hold office for a term ending at the next annual meeting of stockholders, and until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal.
(E)      Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created shall be filled in accordance with Article 6(D) herein.
(F)      Preferred Stock Directors . Notwithstanding anything else contained herein, whenever the holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of such class or series of Preferred Stock adopted by resolution or resolutions adopted by the Board of Directors pursuant to Article 4(A) hereto, and such directors so elected shall not be subject to the provisions of this Article 6 unless otherwise provided therein.

ARTICLE 7.
MEETINGS OF STOCKHOLDERS
(A)      Annual Meetings . An annual meeting of stockholders shall be held for the election of directors and to transact such other business as may properly be brought before the meeting at such place, on such date, and at such time as the Board of Directors shall determine.
(B)      Special Meetings. Special meetings of the stockholders may be called only by the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors. Notwithstanding the foregoing, whenever holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, such holders may call, pursuant to the terms of such class or series of Preferred Stock adopted by resolution or resolutions of the Board of Directors pursuant to Article 4(A) hereto, special meetings of holders of such Preferred Stock.
(C)      No Action by Written Consent. Subject to the rights of the holders of any class or series of Preferred Stock then outstanding, as may be set forth in the resolution or resolutions adopted by the Board of Directors pursuant to Article 4(A) hereto for such class or series of Preferred Stock, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of stockholders at an annual or special meeting duly noticed and called in accordance with Delaware Law, as amended from time to time, and this Article 7 and may not be taken by written consent of stockholders without a meeting.

ARTICLE 8.
INDEMNIFICATION
(A)      Limited Liability. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Delaware Law.
(B)      Right to Indemnification.
(1)    Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, limited liability company, partnership, joint venture, trust or other enterprise (an “ Indemnitee ”), shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware Law. The right to indemnification conferred in this

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Article 8 shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to indemnification conferred in this Article 8 shall be a contract right.
(2)    The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law.
(C)      Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under Delaware Law.
(D)      Nonexclusivity of Rights. The rights and authority conferred in this Article 8 shall not be exclusive of any other right that any person may otherwise have or hereafter acquire.
(E)      Preservation of Rights. Neither the amendment nor repeal of this Article 8, nor the adoption of any provision of this Second Amended and Restated Certificate of Incorporation or the Bylaws, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
(F)      Jointly Indemnifiable Claims . Given that certain Jointly Indemnifiable Claims (as defined below) may arise due to the service of an Indemnitee as a director and/or officer of the Corporation at the request of an Indemnitee-Related Entity (as defined below), the Corporation shall be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification or advancement of expenses in connection with any such Jointly Indemnifiable Claims, pursuant to and in accordance with the terms of this Article 8, irrespective of any right of recovery an Indemnitee may have from any Indemnitee-Related Entity. Under no circumstance shall the Corporation be entitled to any right of subrogation against or contribution by an Indemnitee­Related Entity and no right of advancement, indemnification or recovery an Indemnitee may have from any Indemnitee-Related Entity shall reduce or otherwise alter the rights of an Indemnitee or the obligations of the Corporation under this Article 8. In the event that an Indemnitee-Related Entity shall make any payment to the Indemnitee in respect of indemnification or advancement of expenses with respect to any Jointly Indemnifiable Claim, such Indemnitee­Related Entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Corporation, and the Indemnitee shall execute all documents and instruments reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents and instruments as may be necessary to enable such Indemnitee-Related Entity effectively to bring suit to enforce such rights. Each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Article 8(F) and entitled to enforce this Article 8(F).
The term “ Indemnitee-Related Entity ” means any corporation, limited liability company, partnership, joint venture, trust or other enterprise (other than the Corporation or any other corporation, partnership, joint venture, trust or other enterprise for which the Indemnitee has agreed, on behalf of the Corporation or at the Corporation’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an Indemnitee may be entitled to indemnification or advancement of expenses in respect of a matter with respect to which, in whole or in part, the Corporation may also have an indemnification or advancement obligation.
The term “ Jointly Indemnifiable Claims ” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which an Indemnitee shall be entitled to indemnification or advancement of expenses from both an Indemnitee-Related Entity and the Corporation pursuant to applicable law or any agreement, certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Corporation or an Indemnitee ­Related Entity, as applicable.


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ARTICLE 9.
AMENDMENTS
The Corporation reserves the right to amend this Second Amended and Restated Certificate of Incorporation in any manner permitted by the Delaware Law and all rights and powers conferred upon stockholders, directors and officers herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Articles 4(B), 5, 6, 7, 8 and this Article 9 may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying or permitting the circumvention of the provisions set forth in any of Articles 4(B), 5, 6, 7, 8 or this Article 9, unless such action is approved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.

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IN WITNESS WHEREOF, said Corporation has caused this Second Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer on this [•] day of [•] 2018.
CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:


A-83

EXHIBIT B

CONTURA ENERGY, INC.
(a Delaware corporation)
WRITTEN CONSENT OF STOCKHOLDERS
April 25, 2018
Pursuant to Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (“ DGCL ”), the Amended and Restated Certificate of Incorporation (the “ Existing Certificate of Incorporation ”) of Contura Energy, Inc. (the “ Corporation ”) and the Amended and Restated Bylaws (the “ Existing Bylaws ”) of the Corporation, the undersigned stockholders (the “ Stockholders ”), who constitute the holders of not less than the minimum number of votes that would be necessary to authorize or take the following actions at a meeting at which all of the shares entitled to vote thereon were present, hereby consent to the adoption of the following resolutions and hereby waive any notice required by law, the Existing Certificate of Incorporation or the Existing Bylaws with respect thereto:
Adoption of the Second Amended and Restated Certificate of Incorporation
WHEREAS , the Board of Directors of the Corporation (the “ Board ”) has determined that it is advisable and in the best interest of the Corporation and its stockholders that, contingent on and effective immediately prior to the closing of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of April 25, 2018, by and between ANR, Inc. (“ ANR ”), a Delaware corporation, Alpha Natural Resources Holdings, Inc., a Delaware corporation, the Corporation (“ Holdings ”), Prime Acquisition I, Inc., a Delaware corporation and wholly owned Subsidiary of Contura (“ MergerSub 1 ”), and Prime Acquisition II, Inc., a Delaware corporation and wholly owned Subsidiary of MergerSub 1 (the “ Merger Transaction ”), the Existing Certificate of Incorporation be amended and restated in substantially the form attached hereto as Exhibit A (the “ Second Amended and Restated Certificate of Incorporation ”), in order to, among other things, increase the number of shares of the Corporation’s common stock, par value $0.01 per share (the “ Common Stock ”) and preferred stock, par value $0.01 per share, authorized for issuance by the Corporation, and has recommended the approval of the Second Amended and Restated Certificate of Incorporation by the stockholders;
NOW, THEREFORE, BE IT RESOLVED , that the Second Amended and Restated Certificate of Incorporation, recommended by the Board and substantially in the form attached hereto as Exhibit A , is hereby adopted and approved in all respects, provided that the Second Amended and Restated Certificate of Incorporation shall not become effective until immediately prior to the closing of the Merger Transaction.
Approval of the Indemnification Agreements
WHEREAS , the Board has determined that it is advisable and in the best interest of the Corporation and its stockholders that, contingent on, and effective contemporaneously with, the effectiveness of the registration statement on Form S-4 filed in connection with the Merger Transaction (the “ Registration Statement ”), the Corporation enter into indemnification agreements with each of its directors and executive officers in substantially the form attached hereto as Exhibit B (the “ Indemnification Agreements ”);
NOW, THEREFORE, BE IT RESOLVED , that the Indemnification Agreements to be entered into with each the Corporation’s directors and executive officers, substantially in the form attached hereto as Exhibit B , is hereby approved, contingent on, and effective contemporaneously with, the effectiveness of the Registration Statement.
Adoption of the 2018 Long-Term Incentive Plan
WHEREAS , the Board has determined that it is advisable and in the best interest of the Corporation and its stockholders to adopt the Contura Energy, Inc. 2018 Long-Term Incentive Plan, substantially in the form attached as Exhibit C hereto (the “ LTIP ”).
NOW, THEREFORE, BE IT RESOLVED , the LTIP is hereby approved and adopted, and the Corporation is authorized to reserve up to 1,000,000 shares of the Corporation’s common stock for issuance under the LTIP.

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General Authorizing Resolutions
FURTHER RESOLVED , that the officers and directors of the Corporation be, and each acting alone is, hereby authorized, empowered and directed, for and on behalf of the Corporation, to take or cause to be taken any and all actions, including, without limitation, the execution, acknowledgement, filing, amendment and delivery of any and all papers, agreements, documents, instruments and certificates, and the payment of such sums, as such officers and directors may deem necessary or advisable in order to carry out fully the intent and purposes of the foregoing resolutions and each of them, and that the performance of such acts by them shall be conclusive evidence of the approval thereof and the authority therefor by and from the Corporation; and
FURTHER RESOLVED , that all actions heretofore taken by any officer or director of the Corporation in connection with the transactions contemplated by the foregoing resolutions be, and they hereby are, approved, ratified and confirmed in all respects.
Record Holder Consent
Each Stockholder, severally and not jointly and severally, agrees that with respect to the shares of Common Stock owned beneficially but not of record by such Stockholder, such Stockholder will cause the record owner of such shares of Common Stock to execute and deliver to the Company no later than May 18, 2018, a written consent in the form attached hereto as Exhibit D approving the matters set forth above or in such other form as such record holder agrees to provide that effectively consents to the matters set forth above and is reasonably satisfactory to the Corporation.
Waiver of Appraisal Rights
Each Stockholder, severally and not jointly and severally, hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under Section 262 of the DGCL) in respect of each share of common stock, par value $0.01 per share, of Holdings and each share of Class C-1 common stock, par value $0.01 per share, of ANR to the extent beneficially owned by such Stockholder or any of its affiliates in connection with the Merger Transaction and agrees to cause its affiliates to do the same.
[Signature Page Follows]

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Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned have executed this Written Consent of Stockholders of the Corporation as of the date first set forth above. By executing this Signature Page, the undersigned hereby represents and warrants that the undersigned beneficially owns (with the sole power to vote and dispose of same) the number of shares of Common Stock set forth below, including the number of shares of Common Stock held of record by such Stockholder set forth below.
Date:
 
 
 
 
 
 
By:
 
Number of shares of Common Stock
 
 
Name:
 
beneficially owned by the Stockholder (including ______ shares of Common Stock held of record by such Stockholder):
 
 
Title:
 
________
 
 
 
 


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Exhibit A
Form of Second Amended and Restated Certificate of Incorporation

A-87

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONTURA ENERGY, INC.
Pursuant to the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (“ Delaware Law ”), Contura Energy, Inc., a corporation organized under the laws of the State of Delaware, does hereby certify that:
FIRST: The present name of the corporation is Contura Energy, Inc. (the “ Corporation ”). The Corporation was incorporated on June 10, 2016 under the name Contura Energy, Inc., pursuant to Delaware Law.
SECOND: The Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety as hereinafter provided for (the “ Second Amended and Restated Certificate of Incorporation ”). The Second Amended and Restated Certificate of Incorporation herein certified has been duly adopted by the Corporation’s Board of Directors and stockholders in accordance with the provisions of Sections 228, 242 and 245 of Delaware Law. The Second Amended and Restated Certificate of Incorporation shall become effective upon filing with the Secretary of State of the State of Delaware.
THIRD: The Second Amended and Restated Certificate of Incorporation of the Corporation shall, at the effective time, read as follows:

ARTICLE 1.
NAME
The name of the corporation is Contura Energy, Inc. (the “ Corporation ”).

ARTICLE 2.
REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE 3.
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under Delaware Law.

ARTICLE 4.
CAPITAL STOCK
(A)      Authorized Shares
1.     Classes of Stock. The total number of shares of stock that the Corporation shall have authority to issue is 55,000,000, consisting of 50,000,000 shares of Common Stock, par value $0.01 per share (the ‘ Common Stock ’), and 5,000,000 shares of Preferred Stock, par value $0.01 per share (the ‘ Preferred Stock ’).

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2.      Preferred Stock. The Board of Directors is hereby empowered, without any action or vote by the Corporation’s stockholders (except as may otherwise be provided by the terms of any class or series of Preferred Stock then outstanding), to authorize by resolution or resolutions from time to time the issuance of one or more classes or series of Preferred Stock and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by Delaware Law.
(B)      Voting Rights
Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of such affected class or series are entitled, either separately or together with the holders of one or more other such classes or series, to vote thereon pursuant to this Second Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) or pursuant to Delaware Law.
(C)      Dividends
Subject to the rights of any holders of any class or series of Preferred Stock then outstanding, the holders of Common Stock shall be entitled to the payment of dividends when and as declared by the Board of Directors in accordance with applicable law and to receive other distributions from the Corporation. Any dividends declared by the Board of Directors to the holders of the then-outstanding Common Stock shall be paid to the holders thereof pro rata in accordance with the number of shares of Common Stock held by each such holder as of the record date of such dividend.

ARTICLE 5.
BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation (the “ Bylaws ”).
The stockholders may adopt, amend or repeal the Bylaws only with the affirmative vote of the holders of not less than 66 2/3% of the voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.

ARTICLE 6.
BOARD OF DIRECTORS
(A)      Power of the Board of Directors . The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors.
(B)      Number of Directors . The number of directors which shall constitute the Board of Directors shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the Board of Directors.
(C)      Election of Directors . Each director shall be elected annually at each annual meeting of stockholders to hold office for a term expiring at the next annual meeting of stockholders, with each director to hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal. In no event will a decrease in the number of directors shorten the term of any incumbent director. There shall be no cumulative voting in the election of directors. Election of directors need not be by written ballot unless the Bylaws so provide.

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(D)      Vacancies . Vacancies on the Board of Directors resulting from death, resignation, removal or otherwise and newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors calls a special meeting for which the election of directors is included as business or as otherwise required by law, be filled solely by a majority of the directors then in office (although less than a quorum) or by the sole remaining director, and each director so elected shall hold office for a term ending at the next annual meeting of stockholders, and until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal.
(E)      Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created shall be filled in accordance with Article 6(D) herein.
(F)      Preferred Stock Directors . Notwithstanding anything else contained herein, whenever the holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of such class or series of Preferred Stock adopted by resolution or resolutions adopted by the Board of Directors pursuant to Article 4(A) hereto, and such directors so elected shall not be subject to the provisions of this Article 6 unless otherwise provided therein.

ARTICLE 7.
MEETINGS OF STOCKHOLDERS
(A)      Annual Meetings . An annual meeting of stockholders shall be held for the election of directors and to transact such other business as may properly be brought before the meeting at such place, on such date, and at such time as the Board of Directors shall determine.
(B)      Special Meetings. Special meetings of the stockholders may be called only by the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors. Notwithstanding the foregoing, whenever holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, such holders may call, pursuant to the terms of such class or series of Preferred Stock adopted by resolution or resolutions of the Board of Directors pursuant to Article 4(A) hereto, special meetings of holders of such Preferred Stock.
(C)      No Action by Written Consent. Subject to the rights of the holders of any class or series of Preferred Stock then outstanding, as may be set forth in the resolution or resolutions adopted by the Board of Directors pursuant to Article 4(A) hereto for such class or series of Preferred Stock, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of stockholders at an annual or special meeting duly noticed and called in accordance with Delaware Law, as amended from time to time, and this Article 7 and may not be taken by written consent of stockholders without a meeting.

ARTICLE 8.
INDEMNIFICATION
(A)      Limited Liability. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Delaware Law.
(B)      Right to Indemnification.
(1)    Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, limited liability company, partnership, joint venture, trust or other enterprise (an “ Indemnitee ”), shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware Law. The right to indemnification conferred in this

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Article 8 shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to indemnification conferred in this Article 8 shall be a contract right.
(2)    The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law.
(C)      Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under Delaware Law.
(D)      Nonexclusivity of Rights. The rights and authority conferred in this Article 8 shall not be exclusive of any other right that any person may otherwise have or hereafter acquire.
(E)      Preservation of Rights. Neither the amendment nor repeal of this Article 8, nor the adoption of any provision of this Second Amended and Restated Certificate of Incorporation or the Bylaws, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
(F)      Jointly Indemnifiable Claims . Given that certain Jointly Indemnifiable Claims (as defined below) may arise due to the service of an Indemnitee as a director and/or officer of the Corporation at the request of an Indemnitee-Related Entity (as defined below), the Corporation shall be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification or advancement of expenses in connection with any such Jointly Indemnifiable Claims, pursuant to and in accordance with the terms of this Article 8, irrespective of any right of recovery an Indemnitee may have from any Indemnitee-Related Entity. Under no circumstance shall the Corporation be entitled to any right of subrogation against or contribution by an Indemnitee­Related Entity and no right of advancement, indemnification or recovery an Indemnitee may have from any Indemnitee-Related Entity shall reduce or otherwise alter the rights of an Indemnitee or the obligations of the Corporation under this Article 8. In the event that an Indemnitee-Related Entity shall make any payment to the Indemnitee in respect of indemnification or advancement of expenses with respect to any Jointly Indemnifiable Claim, such Indemnitee­Related Entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Corporation, and the Indemnitee shall execute all documents and instruments reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents and instruments as may be necessary to enable such Indemnitee-Related Entity effectively to bring suit to enforce such rights. Each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Article 8(F) and entitled to enforce this Article 8(F).
The term “ Indemnitee-Related Entity ” means any corporation, limited liability company, partnership, joint venture, trust or other enterprise (other than the Corporation or any other corporation, partnership, joint venture, trust or other enterprise for which the Indemnitee has agreed, on behalf of the Corporation or at the Corporation’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an Indemnitee may be entitled to indemnification or advancement of expenses in respect of a matter with respect to which, in whole or in part, the Corporation may also have an indemnification or advancement obligation.
The term “ Jointly Indemnifiable Claims ” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which an Indemnitee shall be entitled to indemnification or advancement of expenses from both an Indemnitee-Related Entity and the Corporation pursuant to applicable law or any agreement, certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Corporation or an Indemnitee­Related Entity, as applicable.


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ARTICLE 9.
AMENDMENTS
The Corporation reserves the right to amend this Second Amended and Restated Certificate of Incorporation in any manner permitted by the Delaware Law and all rights and powers conferred upon stockholders, directors and officers herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Articles 4(B), 5, 6, 7, 8 and this Article 9 may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying or permitting the circumvention of the provisions set forth in any of Articles 4(B), 5, 6, 7, 8 or this Article 9, unless such action is approved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.

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IN WITNESS WHEREOF, said Corporation has caused this Second Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer on this [•] day of [•] 2018.
CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:

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Exhibit B
Form of Indemnification Agreement

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CONTURA ENERGY, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this " Agreement ") is made as of [-], 2018, by and between Contura Energy, Inc., a Delaware corporation (the " Company "), and ______________ (the " Indemnitee ").
RECITALS:
A.     It is essential that the Company retain and attract as directors and officers the most capable persons available.
B.     The Indemnitee is (or is being elected or appointed as) a director and/or officer of the Company and in that capacity is (or will be) performing a valuable service for the Company.
C.     The Company's Second Amended and Restated Certificate of Incorporation (the " Certificate of Incorporation ") contains a provision which provides for indemnification of and advancement of expenses to the directors and officers of the Company for liabilities and expenses they incur in their capacities as such, and the Certificate of Incorporation and Section 145 of the General Corporation Law of the State of Delaware (the " DGCL ") provide that they are not exclusive of any other rights to indemnification and advancement of expenses.
D.     In recognition of Indemnitee's need for protection against personal liability in order to enhance Indemnitee's service and continued service to the Company in an effective manner, the potential difficulty in obtaining satisfactory Directors and Officers Liability Insurance (the " D&O Insurance ") coverage, and Indemnitee's reliance on the Certificate of Incorporation, and in part to provide Indemnitee with specific contractual assurance that the protection promised by the Certificate of Incorporation will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of the Certificate of Incorporation or any change in the composition of the Company's Board of Directors or acquisition transaction relating to the Company), the Company desires to provide in this Agreement for the indemnification of and the advancing of expenses to Indemnitee to the fullest extent permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company's D&O Insurance policies.
E.     The Indemnitee is willing to serve and/or to continue to serve, the Company, only on the condition that the Company furnish the indemnity provided for herein.
NOW, THEREFORE, in consideration of Indemnitee's service and/or continuing to serve the Company directly, or, at its request, other enterprises and intending to be legally bound hereby, the parties hereto agree as follows:
1.      Definitions .
(a)     A " Change in Control " shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:     
(i)    any merger, consolidation or business combination in which the stockholders of the Company immediately prior to the merger, consolidation or business combination do not own at least a majority of the outstanding equity interests of the surviving parent entity;
(ii)    the sale of all or substantially all of the Company’s assets in a single transaction or a series of related transactions;
(iii)    the acquisition of beneficial ownership or control of (including, without limitation, power to vote) a majority of the outstanding common stock of the Company by any person or entity (including a "group" as defined by or under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended);
(iv)    the stockholders of the Company approve any plan for the dissolution or liquidation of the Company; or
(v)    a contested election of directors, as a result of which or in connection with which the persons who were directors of the Company before such election or their nominees cease to constitute a majority of the Company’s Board.

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(b)    " Corporate Status " describes the status of a person who is or was a director, trustee, general partner, managing member, officer, employee, representative, agent or fiduciary of the Company.
(c)    " Disinterested Director " means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(d)    " Expenses " include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or their equivalent, and (ii) for purposes of Section 12(d), Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee's rights under this Agreement or under any D&O Insurance policies maintained by the Company. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments, fines or other losses in connection with any Proceeding.
(e)    " Indemnitee-Related Entity " means any corporation, limited liability company, partnership, joint venture, trust or other enterprise (other than the Company or any other corporation, partnership, joint venture, trust or other enterprise for which the Indemnitee has agreed, on behalf of the Company or at the Company's request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an Indemnitee may be entitled to indemnification or advancement of expenses in respect of a matter with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation.
(f)    " Independent Counsel " means a law firm, or a partner or member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than as Independent Counsel with respect to matters concerning Indemnitee under this Agreement or as Independent Counsel with respect to matters concerning other indemnitees under other indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee's rights under this Agreement.
(g)    " Interested Stockholder " means any person (other than the Company or any subsidiary of the Company and other than any profit sharing, employee stock ownership, or other employee benefit plan of the Company or any subsidiary of the Company or any trustee of or fiduciary with respect to any such plan when acting in such capacity) who or which:
(i)    is at such time the beneficial owner, directly or indirectly, of more than fifteen percent (15%) of the voting power of the outstanding common stock of the Company;
(ii)    was at any time within the two-year period immediately prior to such time the beneficial owner, directly or indirectly, of more than fifteen percent (15%) of the voting power of the then outstanding common stock of the Company; or
(iii)    is at such time an assignee of or has otherwise succeeded to the beneficial ownership of any shares of common stock of the Company which were at any time within the two-year period immediately prior to such time beneficially owned by any Interested Stockholder, if such assignment or succession has occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933, as amended.
(h)    " Jointly Indemnifiable Claims " shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which an Indemnitee shall be entitled to indemnification or advancement of expenses from both an Indemnitee-Related Entity and the Company pursuant to applicable law or any agreement, certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company or an Indemnitee­Related Entity, as applicable.

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(i)    A " Potential Change of Control " shall occur if:
(i)    the Company enters into an agreement or arrangement the consummation of which would result in the occurrence of a Change in Control;
(ii)    any Person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control; or 
(iii)    the Board of Directors of the Company adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change of Control has occurred.
(j)    " Proceeding " means any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including any appeal therefrom and including without limitation any such Proceeding pending as of the date of this Agreement, in which Indemnitee was, is or will be, or could reasonably be expected to be, involved as a party, a potential party, a non-party witness or otherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the Company, (ii) any action taken by Indemnitee or any action or inaction on Indemnitee's part while acting as a director or officer of the Company, or (iii) the fact that Indemnitee is or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, representative, agent or fiduciary of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification or advancement of expenses can be provided under this Agreement.
(k)    " Unaffiliated Director " means any member of the Board of Directors of the Company who is unaffiliated with, and not a representative of, an Interested Stockholder and who was a member of the Board of Directors prior to the time that the Interested Stockholder became an Interested Stockholder or became a member subsequently to fill a vacancy created by an increase in the size of the Board of Directors and did receive the favorable vote of two-thirds (2/3) of the Unaffiliated Directors in connection with being nominated for election by the stockholders to fill such vacancy or in being elected by the Board of Directors to fill such vacancy, and any successor of an Unaffiliated Director who is unaffiliated with, and not a representative of, the Interested Stockholder and is recommended or elected to succeed an Unaffiliated Director by a majority of the Unaffiliated Directors then on the Board of Directors.
Reference to " other enterprises " shall include employee benefit plans and administrative committees thereof; references to " fines " shall include any excise taxes assessed on a person with respect to any employee benefit plan; references to " serving at the request of the Company " shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; a person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner " not opposed to the best interests of the Company " as referred to in this Agreement; references to " to the fullest extent permitted by applicable law " shall include, but not be limited to: (i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL and (ii) the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.
2.      Indemnity in Third-Party Proceedings . The Company shall indemnify Indemnitee in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
3.      Indemnity in Proceedings by or in the Right of the Company . The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any

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Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 3 in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery or such other court shall deem proper.
4.      Indemnification for Expenses of a Party Who is Wholly or Partly Successful . To the extent that Indemnitee is a party to or a participant in and is successful (on the merits or otherwise) in any Proceeding or in defense of any claim, issue or matter therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith. To the extent permitted by applicable law, if Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
5.      Indemnification for Expenses of a Witness . Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason of his or her Corporate Status, is to be a witness or to be interviewed in any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith.
6.      Additional Indemnification . In the event that applicable law permits indemnification in addition to the indemnification provided in Sections 2, 3 and 4, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection with the Proceeding or any claim, issue or matter therein. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Company’s Certificate of Incorporation and Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change, subject to the restrictions expressly set forth herein or therein. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such Expenses to which the Indemnitee is entitled.
7.      Contribution . To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee, then in respect of any actual or threatened proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such proceeding) the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be paid in settlement, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and transaction(s) giving rise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company (and its other directors, officers, employees and agents) in connection with such event(s) and transaction(s).

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8.      Notification and Defense of Claim .
(a)    Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. The written notification to the Company shall include a description of the nature of the Proceeding and the facts underlying the Proceeding. The failure by Indemnitee to notify the Company will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights. With respect to any Proceeding as to which the Indemnitee has so notified the Company:  
(i)    The Company will be entitled to participate therein at its own expense; and
(ii)    Except as otherwise provided below, the Company may assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After the Company notifies the Indemnitee of its election to so assume the defense, the Company will not be liable to the Indemnitee under this Agreement for any legal Expenses subsequently incurred by the Indemnitee in connection with the defense, other than legal Expenses relating to the reasonable costs of investigation, including an investigation in connection with determining whether there exists a conflict of interest of the type described in clause (B) of this paragraph, or as otherwise provided in this paragraph. The Indemnitee shall have the right to employ his or her counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after the Company notifies the Indemnitee of its assumption of the defense shall be at the expense of the Indemnitee unless (A) the Company authorizes the Indemnitee's employment of counsel, provided, that following a Change in Control, the Indemnitee shall be entitled to employ his or her own counsel at the Company's expense after giving not less than 30 days' notice to the Company unless the Company has Unaffiliated Directors and a majority of the Unaffiliated Directors determine that the Indemnitee's interests are adequately represented by the counsel employed by the Company; (B) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense or (C) the Company shall not have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which the Indemnitee shall have made the conclusion described in clause (B) of this paragraph. 
(b)    The Company shall not be obligated to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action, claim or Proceeding effected without its written consent. The Company shall not settle any action, claim or Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee's written consent. Neither the Company nor the Indemnitee shall unreasonably withhold their consent to any proposed settlement.
9.      Procedure for Indemnification .
(a)    To obtain indemnification, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee would be entitled to indemnification following the final disposition of such Proceeding. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the Board of Directors that Indemnitee has requested indemnification.
(b)    Upon written request by Indemnitee for indemnification pursuant to Section 9(a), a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Company's Board of Directors, a copy of which shall be delivered to Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Company's Board of Directors, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Company's Board of Directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Company's Board of Directors, a copy of which shall be delivered to Indemnitee or (D) if so directed by the Company's Board of Directors, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within sixty (60) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance

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request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys' fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company, to the extent permitted by applicable law.
(c)    In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 9(b), the Independent Counsel shall be selected as provided in this Section 9(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Company's Board of Directors, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Company's Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided , however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 9(a) hereof and (ii) the final disposition of the Proceeding, the parties have not agreed upon an Independent Counsel, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 9(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, the Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing),
(d)    The Company agrees to pay the reasonable fees and expenses of any Independent Counsel and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
10.      Advancement of Expenses; Procedure for Advances . The Company shall advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding. Advances shall be unsecured and interest free and made without regard to Indemnitee's ability to repay such advances. Indemnitee hereby undertakes to repay any advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. To obtain advances of Expenses, Indemnitee shall submit from time to time to the Company a written request requesting such advances and shall provide copies of invoices received by Indemnitee in connection with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditure made that Indemnitee's lawyers believe would likely cause Indemnitee to waive any privilege accorded by applicable law may be redacted from the copy of the invoice submitted to the Company (in which case, Indemnitee shall also submit a letter addressed to the Company from such lawyers to the effect that they believe submission of the redacted information would likely cause Indemnitee to waive a privilege accorded by applicable law). Upon receipt of a such a request for an advance of Expenses along with copies of the related invoices (and, if applicable, a letter from Indemnitee's lawyers with respect to redactions on the legal invoice(s)), Company shall advance the Expenses to Indemnitee as soon as reasonably practicable, but in any event no later than twenty (20) days, after such receipt by the Company. This Section 10 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 16 of this Agreement.
11.      Maintenance of Insurance; Funding .
(a)    The Company represents that a summary of the terms of the D&O Insurance in effect as of the date of this Agreement is attached hereto as Exhibit A (the " Insurance Policies "). Subject only to the provisions of Section 11(b) hereof, the Company agrees that, so long as Indemnitee shall continue to serve as an officer or director of the Company (or shall continue at the request of the Company to serve as a director, trustee, general partner, managing member, officer, employee,

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representative, agent or fiduciary of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan) and thereafter so long as Indemnitee shall be subject to any possible Proceeding, the Company shall purchase and maintain in effect for the benefit of Indemnitee one or more valid, binding and enforceable policy or policies of D&O Insurance providing coverage at least comparable to that provided pursuant to the Insurance Policies.
(b)    The Company shall not be required to maintain said Insurance Policies in effect if, in the reasonable, good faith business judgment of the then Board of Directors of the Company (i) the premium cost for such insurance is substantially disproportionate to the amount of coverage, (ii) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance or (iii) said insurance is not otherwise reasonably available; provided, however, that in the event the then Board of Directors makes such a judgment, the Company shall purchase and maintain in force a policy or policies of D&O Insurance in the amount and with such coverage as the then Board of Directors determines to be reasonably available.  Notwithstanding the general provisions of this Section 11(b), following a Change in Control, any decision not to maintain any policy or policies of D&O Insurance or to reduce the amount or coverage under any such policy or policies shall be effective only if there are Unaffiliated Directors (as defined in Section 1(k) hereof) and shall require the concurrence of a majority of the Unaffiliated Directors.
(c)    If and to the extent the Company, acting under Section 11(b), does not purchase and maintain in effect the policy or policies of D&O Insurance described in this Section 11, the Company shall indemnify and hold harmless the Indemnitee to the full extent of the coverage which would otherwise have been provided by such policies.  The rights of the Indemnitee hereunder shall be in addition to all other rights of Indemnitee under the remaining provisions of this Agreement.
(d)    In the event of a Potential Change of Control and if and to the extent the Company is not required to maintain in effect the policy or policies of D&O Insurance described in Section 11(a) pursuant to the provisions of Section 11(b), the Company shall, upon written request of Indemnitee, create a "Trust" for the benefit of Indemnitee, and from time to time, upon written request by Indemnitee, shall fund such Trust in an amount sufficient to pay any and all Expenses and any and all liability and loss, including judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement actually and reasonably incurred by him or on his behalf for which the Indemnitee is entitled to indemnification or with respect to which indemnification is claimed, reasonably anticipated or proposed to be paid in accordance with the terms of this Agreement or otherwise; provided that in no event shall more than $100,000 be required to be deposited in any Trust created hereunder in excess of the amounts deposited in respect of reasonably anticipated Expenses.  The amounts to be deposited in the Trust pursuant to the foregoing funding obligation shall be determined by a majority of the Unaffiliated Directors whose determination shall be final and conclusive.  At all times the Trust shall remain as an asset of the Company and subject to the claims of the Company's creditors.
The terms of the Trust shall provide that upon a Change in Control (i) the Trust shall not be revoked or the principal thereof invaded, without the written consent of the Indemnitee except as set forth in the preceding paragraph, (ii) the procedures set forth in Section 10 regarding advancement of expenses with respect to the Company shall apply to the Trust, (iii) the Trust shall continue to be funded by the Company in accordance with the funding obligation set forth above (and in the event that there are no Unaffiliated Directors, the decision regarding the amount to fund shall be made by Independent Counsel selected as provided in Section 9(c)), (iv) the Trustee shall promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (v) all unexpended funds in such Trust shall revert to the Company upon a final determination by a majority of the Unaffiliated Directors or by Independent Counsel or a court of competent jurisdiction, as the case may be, that the Indemnitee has been fully indemnified under the terms of this Agreement.  The Trustee shall be a bank or trust company or other individual or entity chosen by the Indemnitee and reasonably acceptable and approved of by the Company.
12.      Remedies of Indemnitee .
(a)    Subject to Section 12(d), in the event that (i) a determination is made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 10 or 12(d) of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 9 of this Agreement within ninety (90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification pursuant to this Agreement is not made (A) within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or (B) with respect to indemnification pursuant to

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Sections 4, 5 or 12(d) of this Agreement, within thirty (30) days after receipt by the Company of a written request therefor, or (v) the Company or any other person or entity takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by the Delaware Court of Chancery of Indemnitee's right to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The Company shall not oppose Indemnitee's right to seek any such adjudication or award in arbitration in accordance with this Agreement.
(b)    The failure of the Company, its Board of Directors, any committee or subgroup of the Board of Directors, Independent Counsel or stockholders to have made a determination that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct shall not be a defense to the action or create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the event that a determination shall have been made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall, to the fullest extent not prohibited by law, have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be. If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 12, Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 10 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed).
(c)    To the fullest extent not prohibited by law, the Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. If a determination shall have been made pursuant to Section 9 of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statements not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d)    The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later than sixty (60) days, after receipt by the Company of a written request therefor) advance such Expenses to Indemnitee, that are incurred by Indemnitee in connection with any action for indemnification or advancement of Expenses from the Company under this Agreement or under any directors' and officers' liability insurance policies maintained by the Company, to the extent Indemnitee is successful in such action and to the extent not prohibited by law.
(e)    Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification shall be required to be made prior to the final disposition of the Proceeding.
13.      Presumptions and Effect of Certain Proceedings .
(a)    In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9 of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by such person, persons or entity of any determination contrary to that presumption.
(b)    The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

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(c)    For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account of the Company, including financial statements, (ii) information supplied to Indemnitee by the officers of the Company in the course of their duties, (iii) the advice of legal counsel for the Company or its Board of Directors or counsel selected by any committee of the Board of Directors or (iv) information or records given or reports made to the Company by an independent certified public accountant, an appraiser, investment banker or other expert selected with reasonable care by the Company or its Board of Directors or any committee of the Board of Directors. The provisions of this Section 13(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d)    Neither the knowledge, actions nor failure to act of any other director, officer, agent or employee of the Company shall be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
14.      Subrogation; No Duplication of Payments . In the event that the Company pays any Expenses under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received payment from a third party for such amounts under any insurance policy, contract, agreement or otherwise; provided, however, that if the Indemnitee repays any of these payments to such third party (whether due to a reservation of rights or otherwise), the Company shall again be obligated to Indemnitee under this Agreement with respect to such payments. Notwithstanding the foregoing, the Company shall be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification or advancement of expenses in connection with any Jointly Indemnifiable Claims that may arise due to the service of an Indemnitee as a director and/or officer of the Company at the request of an Indemnitee-Related Entity, irrespective of any right of recovery an Indemnitee may have from any Indemnitee-Related Entity. Under no circumstance shall the Company be entitled to any right of subrogation against or contribution by an Indemnitee­Related Entity.
15.      Services to Company . Indemnitee agrees to serve as a director or officer of the Company for so long as Indemnitee is duly elected or appointed or until Indemnitee tenders his or her resignation. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries) and Indemnitee. Indemnitee specifically acknowledges that any employment with the Company (or any of its subsidiaries) is at will, and Indemnitee may be discharged at any time for any reason, with or without cause, with or without notice, except as may be otherwise expressly provided in any executed, written employment contract between Indemnitee and the Company (or any of its subsidiaries), any existing formal severance policies adopted by the Company's Board of Directors or, with respect to service as a director or officer of the Company, the Company's Certificate of Incorporation or Bylaws or the DGCL.
16.      Exclusions . Notwithstanding the foregoing, the Company shall not be liable under this Agreement to pay any Expenses in connection with any Proceeding:
(a)    for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the " Sarbanes-Oxley Act "), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements);
(b)    for a disgorgement of profits made from the purchase and sale by the Indemnitee of securities pursuant to Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any state statutory law or common law;
(c)    initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees, agents or other indemnitees, unless (i) the Company's Board of Directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (ii) otherwise authorized in Section 12(d) or (iii) otherwise required by applicable law; or

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(d)    if prohibited by applicable law.
17.      Waivers . The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term only by a writing signed by the party against which such waiver is to be asserted. Unless otherwise expressly provided herein, no delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
18.      Entire Agreement . This Agreement and the documents referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are superseded by this Agreement, provided that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation and Bylaws of the Company and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
19.      Notices . All notices, requests, demands and other communications under this Agreement shall be in writing (which may be by facsimile transmission). All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. The address for notice to a party is as shown on the signature page of this Agreement, or such other address as any party shall have given by written notice to the other party as provided above.
20.      Amendments . The entitlement to payment hereunder of an Indemnitee shall not be affected or diminished by any amendment, termination or repeal of the General Corporation Law of the State of Delaware or the Certificate of Incorporation of the Company with respect to any Proceeding arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of any such amendment, termination or repeal. This Agreement may not be modified or altered except by a formal writing signed by both the Company and the Indemnitee that specifically refers to this Agreement.
21.      Counterparts . This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one instrument.
22.      Indemnification Hereunder Not Exclusive . Nothing herein shall be deemed to diminish or otherwise restrict the Indemnitee's right to indemnification under any provision of the Certificate of Incorporation or the Bylaws of the Company and amendments thereto or under law. Except as expressly set forth herein, no right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy. It is the intention of the parties in entering into this Agreement that the insurers under any D&O Insurance policy shall be obligated ultimately to pay any claims by Indemnitee which are covered by such policy and not to give such insurers any rights against the Company under or with respect to this Agreement, including, without limitation, any right to be subrogated to any of Indemnitee's rights hereunder, unless otherwise expressly agreed to by the Company in writing, and the obligation of such insurers to the Company or Indemnitee shall not be deemed reduced or impaired in any respect by virtue of the provisions of this Agreement.
23.      Governing Law . This Agreement shall be governed by and construed in accordance with Delaware law, without regard to its conflict of laws rules.
24.      Saving Clause . Wherever there is conflict between any provision of this Agreement and any applicable present or future statute, law or regulation contrary to which the Company and the Indemnitee have no legal right to contract, the latter shall prevail but (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this

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Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby but in such event the affected provisions of this Agreement shall be curtailed and restricted only to the extent necessary to bring them within applicable legal requirements.
25.      Coverage; Continuation of Indemnity . The provisions of this Agreement shall apply with respect to the Indemnitee's service as a Director or officer of the Company prior to the date of this Agreement (if any) and with respect to all periods of such service after the date of this Agreement, even though the Indemnitee may have ceased to be a Director or officer of the Company and shall inure to the benefit of the heirs, executors, administrators, legatees and assigns of the Indemnitee. To the extent Indemnitee served as an officer or director of Alpha Natural Resources, Inc., a predecessor of the Company, the provisions of this Agreement shall also apply with respect to the time period that Indemnitee served as an officer or director of Alpha Natural Resources, Inc. All agreements and obligations of the Company contained in this Agreement shall continue during the period the Indemnitee is a director or officer of the Company (or is or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, representative, agent or fiduciary of another corporation, partnership, joint venture, trust, limited liability company or other enterprise and shall continue thereafter so long as the Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that the Indemnitee was a director or officer of the Company or serving in any other capacity referred to herein.
26.      Successors . This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company, and shall inure to the benefit of Indemnitee and Indemnitee's heirs, executors, administrators, legatees and assigns. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
27.      Miscellaneous .
(a)    Notwithstanding Section 20, the Company may amend this Agreement from time to time without Indemnitee's consent to the extent deemed necessary or appropriate, in its sole discretion, to effect compliance with Section 409A of the Internal Revenue Code, including regulations and interpretations thereunder, which amendments may result in a reduction of benefits provided hereunder and/or other unfavorable changes to Indemnitee.
(b)    This Agreement is intended to provide for the indemnification of, and/or purchase of insurance policies providing for payments of, expenses and damages incurred with respect to bona fide claims against the Indemnitee, as a service provider, or the Company, as the service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10), pursuant to which the Agreement shall not provide for the deferral of compensation.  The Agreement shall be construed consistently, and limited in accordance with, the provisions of such regulation.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and signed as of the day and year first above written.
CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:

INDEMNITEE
By:
 
 
Name:
 
Title:


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EXHIBIT C

Exhibit C
Form of 2018 Long-Term Incentive Plan

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CONTURA ENERGY, INC.
2018 LONG-TERM INCENTIVE PLAN
Section 1. PURPOSE . THE PURPOSE OF THE CONTURA ENERGY, INC. 2018 LONG-TERM INCENTIVE PLAN (AS AMENDED FROM TIME TO TIME, THE “ PLAN ”) IS TO ADVANCE THE INTERESTS OF CONTURA ENERGY, INC. (THE “ COMPANY ”) AND ITS STOCKHOLDERS BY MOTIVATING AND RETAINING EMPLOYEES AND OTHER SELECTED INDIVIDUALS WHO CONTRIBUTE SIGNIFICANTLY TO THE STRATEGIC AND LONG-TERM PERFORMANCE OBJECTIVES AND GROWTH OF THE COMPANY.
Section 2. DEFINITIONS . CERTAIN CAPITLIZED TERMS APPLICABLE TO THE PLAN ARE SET FORTH IN APPENDIX A.
Section 3. ADMINISTRATION .  
(a) Administration of the Plan . The Plan shall be administered by the Committee. All decisions of the Committee shall be final, conclusive and binding upon all parties, including the Company, its stockholders, Eligible Persons and any Beneficiaries thereof. The Committee may issue rules and regulations for administration of the Plan. It shall meet at such times and places as it may determine.
(b) Composition of Committee . To the extent necessary or desirable to comply with applicable regulatory regimes, any action by the Committee shall require the approval of Committee members who are (i) independent, within the meaning of and to the extent required by applicable rulings and interpretations of the applicable stock market or exchange on which the Common Shares are quoted or traded; and (ii) non-employee Directors within the meaning of Rule 16b-3 under the Exchange Act. The Board may designate one or more Directors as alternate members of the Committee who may replace any absent or disqualified member at any meeting of the Committee. To the extent permitted by applicable law, including under Section 157(c) of the Delaware General Corporation Law, the Committee may delegate to one or more officers of the Company some or all of its authority under the Plan, including the authority to grant Options and Stock Appreciation Rights or other Awards in the form of Common Share rights (except that such delegation shall not be applicable to any Award for a Person then covered by Section 16 of the Exchange Act), and the Committee may delegate to one or more committees of the Board (which may consist of solely one Director) some or all of its authority under the Plan, including the authority to grant all types of Awards, in accordance with applicable law.
(c) Authority of Committee . Subject to the terms of the Plan and applicable law, the Committee (or its delegate) shall have full discretion and authority to: (i)designate Eligible Persons; (ii) determine the type or types of Awards (including Substitute Awards) to be granted to each Eligible Person under the Plan; (iii) determine the number of Common Shares to be covered by (or with respect to which payments, rights or other matters are to be calculated in connection with) Awards; (iv) determine the terms and conditions of any Award and prescribe the form of each Award Agreement which need not be identical for each Participant; (v)determine whether, to what extent and under what circumstances Awards may be settled or exercised in cash, Common Shares, other Awards, other property, net settlement, or any combination thereof, or canceled, forfeited or suspended, and the method or methods by which Awards may be settled, exercised, canceled, forfeited or suspended; (vi)determine whether, to what extent and under what circumstances cash, Common Shares, other Awards, other property and other amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Committee; (vii) amend terms or conditions of any outstanding Awards in a manner consistent with Section 5(b) hereof; (viii)correct any defect, supply any omission and reconcile any inconsistency in the Plan or any Award, in the manner and to the extent it shall deem desirable to carry the Plan into effect; (ix)interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (x)establish, amend, suspend or waive such rules and regulations and appoint such agents, trustees, brokers, depositories and advisors and determine such terms of their engagement as it shall deem appropriate for the proper administration of the Plan and due compliance with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations; and (xi) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan and due compliance with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations. Notwithstanding anything to the contrary contained herein, the Board may, in its sole discretion, at any time and from time to time, grant Awards or administer the Plan. In any such case, the Board shall have all of the authority and responsibility granted to the Committee herein.

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Section 4. PARTICIPATION .
Section 8.12    Consistent with the purposes of the Plan, the Committee shall have exclusive power to select the Eligible Persons who may participate in the Plan and be granted Awards under the Plan. Eligible Persons may be selected individually or by groups or categories, as determined by the Committee in its discretion.
Section 5. SHARES AVAILABLE FOR AWARD.
(a) Share Reserve .
(i) Subject to adjustment as provided in Section 5(b) and except for Substitute Awards, the maximum number of Common Shares available for issuance under the Plan is 1,000,000. The maximum number of Common Shares available for issuance with respect to Incentive Stock Options shall be 940,800.
(ii) If any Award, in whole or in part, is forfeited, cancelled, expires, terminates or otherwise lapses, or is settled in cash without the delivery of Common Shares, or Common Shares are withheld by the Company in respect of taxes, then the corresponding Common Shares shall again be available for grant under the Plan. For the avoidance of doubt, any Common Shares tendered or withheld to pay the exercise price of Options, or that are covered by a Stock Appreciation Right (to the extent that it is settled in Common Shares, without regard to the number of Shares that are actually issued upon exercise), will not again become available for issuance under the Plan.
(iii) Common Shares issued pursuant to the Plan may be either authorized but unissued shares, treasury shares, reacquired shares or any combination thereof.
(b) Adjustments . In the event that the Committee determines that, as a result of any dividend or other distribution (other than an ordinary dividend or distribution), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, separation, rights offering, split-up, spin-off, combination, repurchase or exchange of Common Shares or other securities of the Company, issuance of warrants or other rights to purchase Common Shares or other securities of the Company, issuance of Common Shares pursuant to the anti-dilution provisions of securities of the Company, or other similar corporate transaction or event affecting the Common Shares, or changes in applicable laws, regulations or accounting principles, an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, subject to compliance with Section 409A of the Code and other applicable law, adjust equitably so as to ensure no undue enrichment or harm (including, without limitation, by payment of cash) any or all of:
(i) the number and type of Common Shares (or other securities) which thereafter may be made the subject of Awards, including the aggregate limit specified in Section 5(a) and the individual limits specified in Section 5(c);
(ii) the number and type of Common Shares (or other securities) subject to outstanding Awards; and
(iii) the grant, purchase, exercise or hurdle price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award;
provided , however , that the number of Common Shares subject to any Award denominated in Common Shares shall always be a whole number.
(c) Non-Employee Director Limits . No non-employee Director may be granted (i) Award(s) (denominated in Common Shares) in excess of 34,285 Common Shares (or if greater, in the case of Restricted Stock Units, Restricted Stock, Performance Awards and Other Stock-Based Awards, Common Shares with an aggregate Fair Market Value of $300,000, as calculated on the grant date of the applicable Award) or (ii) Award(s) denominated in cash in excess of $150,000 under the Plan in any one fiscal year of the Company.

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Section 6. AWARDS UNDER THE PLAN .
(a) Types of Awards . Awards under the Plan may include, but need not be limited to, one or more of the following types, either alone or in any combination thereof: (i)Stock Options, (ii)Stock Appreciation Rights, (iii)Restricted Stock, (iv)Restricted Stock Units, (v)Performance Awards, (vi)Other Cash-Based Awards and (vii)Other Stock-Based Awards.
(b) Rights with Respect to Common Shares and Other Securities . Except as provided in Section 9(c) with respect to Awards of Restricted Stock and unless otherwise determined by the Committee in its discretion, a Participant to whom an Award is made (and any Person succeeding to such a Participant’s rights pursuant to the Plan) shall have no rights as a stockholder with respect to any Common Shares or as a holder with respect to other securities, if any, issuable pursuant to any such Award until the date a stock certificate evidencing such Common Shares or other evidence of ownership is issued to such Participant or until such Participant’s ownership of such Common Shares shall have been entered into the books of the registrar in the case of uncertificated shares.
(c) Award Agreements. Each Award granted or sold under the Plan shall be evidenced by an Award Agreement in such form as the Committee shall prescribe from time to time in accordance with the Plan and shall comply with the applicable terms and conditions of the Plan and applicable law, and with such other terms and conditions, including, but not limited to, treatment of the Award upon a Separation from Service and restrictions upon a Stock Option or the Common Shares issuable upon exercise thereof, as the Committee, in its discretion, shall establish.
Section 7. STOCK OPTIONS . THE COMMITTEE MAY GRANT STOCK OPTIONS TO ELIGIBLE PERSONS WITH THE FOLLOWING TERMS AND CONDITIONS AND WITH SUCH ADDITIONAL TERMS AND CONDITIONS, IN EACH CASE, NOT INCONSISTENT WITH THE PROVISIONS OF THE PLAN, AS THE COMMITTEE SHALL DETERMINE; PROVIDED THAT AN INCENTIVE STOCK OPTION MAY BE GRANTED ONLY TO ELIGIBLE PERSONS WHO ARE EMPLOYEES OF THE COMPANY OR ANY PARENT OR SUBSIDIARY OF THE COMPANY WITHIN THE MEANING OF SECTIONS 424(E) AND (F) OF THE CODE, INCLUDING A SUBSIDIARY WHICH BECOMES SUCH AFTER ADOPTION OF THE PLAN.
(a) The Committee shall determine the number of Common Shares to be subject to each Stock Option. The exercise price of a Stock Option shall not be less than the Fair Market Value of the Common Shares subject to such Stock Option on the date of grant, as determined by the Committee; provided, however , if an Incentive Stock Option is granted to a Ten Percent Employee, such exercise price shall not be less than 110% of such Fair Market Value at the time the Stock Option is granted.
(b) Any Stock Option may be exercised during its term only at such time or times and in such installments as the Committee may establish.
(c) A Stock Option shall not be exercisable:
(i) in the case of any Incentive Stock Option granted to a Ten Percent Employee, after the expiration of five years from the date it is granted, and, in the case of any other Stock Option, after the expiration of ten years from the date it is granted; and
(ii) no Common Shares shall be issued unless payment in full is made for the Common Shares being acquired under such Stock Option at the time of exercise as provided in Section 7(e).
(d) In the case of an Incentive Stock Option, the amount of the aggregate Fair Market Value of Common Shares (determined at the time of grant of the Stock Option) with respect to which Incentive Stock Options are exercisable for the first time by an employee of the Company or a Subsidiary during any calendar year (under all such plans of his or her employer corporation and its parent and subsidiary corporations within the meaning of Sections 424(e) and (f) of the Code) shall not exceed $100,000 or such other amount as is specified in the Code. An Incentive Stock Option that is exercised at a time that is beyond the time an Incentive Stock Option may be exercised in order to qualify as such under the Code shall cease to be an Incentive Stock Option.
(e) The Committee shall determine the method or methods by which, and the form or forms, including cash, Common Shares, other Awards, other property, net settlement, broker-assisted cashless exercise or any combination thereof, having a Fair Market Value (if such form is other than cash) on the exercise date equal to the exercise price of the Common

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Shares as to which the Option shall be exercised, in which payment of the exercise price with respect thereto may be made or deemed to have been made.
(f) If the exercise of a Stock Option is prevented by Section 19(e), the Stock Option shall remain exercisable until thirty days after the date such exercise first would no longer be prevented by such provision, but in any event no later than the expiration date of such Stock Option.
Section 8. STOCK APPRECIATION RIGHTS. THE COMMITTEE MAY GRANT STOCK APPRECIATION RIGHTS TO ELIGIBLE PERSONS WITH THE FOLLOWING TERMS AND CONDITIONS, AND WITH SUCH ADDITIONAL TERMS AND CONDITIONS IN EACH CASE NOT INCONSISTENT WITH THE PROVISIONS OF THE PLAN, AS THE COMMITTEE SHALL DETERMINE.
(a) The Committee shall determine the number of Common Shares to be subject to each Stock Appreciation Right. Stock Appreciation Rights shall have an exercise price no less than the Fair Market Value of the Common Shares subject to such Stock Appreciation Right on the date of grant, as determined by the Committee.
(b) Any Stock Appreciation Right may be exercised during its term only at such time or times and in such installments as the Committee may establish and shall not be exercisable after the expiration of ten years from the date it is granted.
(c) A Stock Appreciation Right shall entitle the holder to exercise such Award and to receive from the Company in exchange thereof, without payment to the Company, that number of Common Shares or cash having an aggregate value equal to the excess of the Fair Market Value of one Common Share, at the time of such exercise, over the exercise price, times the number of Common Shares subject to the Award, or portion thereof, that is so exercised or surrendered, as the case may be.
(d) If the exercise of a Stock Appreciation Right is prevented by Section 19(e), the Stock Appreciation Right shall remain exercisable until thirty days after the date such exercise first would no longer be prevented by such provision, but in any event no later than the expiration date of such Stock Appreciation Right.  
Section 9. RESTRICTED STOCK AND RESTRICTED STOCK UNITS. THE COMMITTEE IS AUTHORIZED TO GRANT AWARDS OF RESTRICTED STOCK AND RESTRICTED STOCK UNITS TO ELIGIBLE PERSONS WITH THE FOLLOWING TERMS AND CONDITIONS, AND WITH SUCH ADDITIONAL TERMS AND CONDITIONS IN EACH CASE NOT INCONSISTENT WITH THE PROVISIONS OF THE PLAN, AS THE COMMITTEE SHALL DETERMINE.
(a) The Committee shall determine the number of Common Shares to be issued to a Participant pursuant to the Award of Restricted Stock or Restricted Stock Units, and the extent, if any, to which they shall be issued in exchange for cash, other consideration, or both. The Award Agreement shall specify the applicable conditions and restrictions and, with respect to Restricted Stock Units, the delivery schedule (which may include deferred delivery later than an applicable vesting date).
(b) Until the expiration of such period as the Committee shall determine from the date on which the Award is granted and subject to such other terms and conditions as the Committee, in its discretion, shall establish (the “ Restricted Period ”), a Participant to whom an Award of Restricted Stock is made shall be issued, but shall not be entitled to the delivery of, a stock certificate or other evidence of ownership representing the Common Shares subject to such Award.
(c) Unless otherwise determined by the Committee in its discretion, a Participant to whom an Award of Restricted Stock has been made (and any Person succeeding to such a Participant’s rights pursuant to the Plan) shall have, after issuance of a certificate for the number of Common Shares awarded (or after the Participant’s ownership of such Common Shares shall have been entered into the books of the registrar in the case of uncertificated shares) and prior to the expiration of the Restricted Period, ownership of such Common Shares, including the right to vote such Common Shares and to receive dividends or other distributions made or paid with respect to such Common Shares, provided that, such Common Shares, and any new, additional or different shares, or Other Company Securities or property, or other forms of consideration that the Participant may be entitled to receive with respect to such Common Shares as a result of a stock split, stock dividend or any other change in the corporation or capital structure of the Company, shall be subject to the restrictions set forth in the

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Award Agreement. A Restricted Stock Unit shall not convey to the Participant the rights and privileges of a stockholder with respect to the Common Share subject to the Restricted Stock Unit, such as the right to vote or the right to receive dividends, unless and until a Common Share is issued to the Participant to settle the Restricted Stock Unit.
(d) The Committee may, in its discretion, specify in the applicable Award Agreement that any or all dividends, Dividend Equivalents or other distributions, as applicable, paid on Awards of Restricted Stock or Restricted Stock Units prior to vesting or settlement, as applicable, be paid either in cash or in additional Common Shares and either on a current or deferred basis and that such dividends, dividend equivalents or other distributions may be reinvested in additional Common Shares, which may be subject to the same restrictions as the underlying Awards. Notwithstanding the foregoing, dividends and Dividend Equivalents with respect to Restricted Stock and Restricted Stock Units that are granted as Performance Awards shall vest only if and to the extent that the underlying Performance Award vests, as determined by the Committee.
Section 10. PERFORMANCE AWARDS .
(a) Grant . The Committee may grant a Performance Award to Eligible Persons which shall consist of a right that is (i)denominated and/or payable in cash, Common Shares or any other form of Award issuable under the Plan (or any combination thereof) (other than Stock Options or Stock Appreciation Rights), (ii)valued, as determined by the Committee, in accordance with the achievement of such performance goals applicable to such performance periods as the Committee shall establish and (iii)payable at such time and in such form as the Committee shall determine.
(b) Terms and Conditions . Performance Awards may be conditioned upon the achievement of pre-established goals relating to one or more of the following performance measures, as determined by the Committee and subject to such modifications as specified by the Committee: cash flow; cash flow from operations; earnings (including, but not limited to, earnings before interest, taxes, depreciation and amortization or some variation thereof); earnings per share, diluted or basic; earnings per share from continuing operations; net asset turnover; inventory turnover; capital expenditures; debt; debt reduction; working capital; return on investment; return on sales; net or gross sales; market share; economic value added; cost of capital; change in assets; expense reduction levels; productivity; delivery performance; safety record and/or performance; environmental record and/or performance; stock price; return on equity; total or relative increases to stockholder return; return on invested capital; return on assets or net assets; revenue; income or net income; operating income or net operating income; operating profit or net operating profit; gross margin, operating margin or profit margin; and completion of acquisitions, business expansion, product diversification, new or expanded market penetration, and other non-financial operating and management performance objectives. The Committee may determine that certain adjustments shall apply, in whole or in part, to exclude or include the effect of specified events that occur during a performance period. Performance measures may be determined either individually, alternatively or in any combination, applied to either the Company as a whole or to a business unit or subsidiary entity thereof, either individually, alternatively or in any combination, and measured over a period of time including any portion of a year, annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous fiscal years’ results or to a designated comparison group, in each case as specified by the Committee.
(c) Additional Restrictions/Exercise of Discretion . The Committee, in its sole discretion, may also establish such additional restrictions or conditions that must be satisfied as a condition precedent to the payment of all or a portion of any Performance Awards. Such additional restrictions or conditions need not be performance-based and may include, among other things, the receipt by a Participant of a specified annual performance rating, the continued employment by the Participant and/or the achievement of specified performance goals by the Company, business unit or Participant. Furthermore, and notwithstanding any provision of the Plan to the contrary, the Committee, in its sole discretion, may retain the discretion to adjust the amount of any Performance Award payable to a Participant if it concludes that such adjustment is necessary or appropriate.
(d) Payment of Performance Awards . Performance Awards may be paid in a lump sum or in installments following the close of the relevant Performance Period or, in accordance with procedures established by the Committee, on a deferred or accelerated basis.
Section 11. OTHER CASH-BASED AWARDS AND OTHER STOCK-BASED AWARDS. THE COMMITTEE MAY GRANT OTHER CASH-BASED AWARDS AND OTHER STOCK-BASED AWARDS TO ELIGIBLE PERSONS WITH THE FOLLOWING TERMS AND CONDITIONS, AND WITH SUCH ADDITIONAL TERMS AND CONDITIONS IN EACH CASE NOT INCONSISTENT WITH THE PROVISIONS OF THE PLAN, AS THE COMMITTEE SHALL

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DETERMINE, WHICH SHALL CONSIST OF ANY RIGHT THAT IS (i)NOT AN AWARD DESCRIBED IN SECTIONS ‎7 THROUGH ‎10 ABOVE AND (ii)AN AWARD OF COMMON SHARES OR CASH OR AN AWARD DENOMINATED OR PAYABLE IN, VALUED IN WHOLE OR IN PART BY REFERENCE TO, OR OTHERWISE BASED ON OR RELATED TO, COMMON SHARES (INCLUDING, WITHOUT LIMITATION, SECURITIES CONVERTIBLE INTO COMMON SHARES), AS DEEMED BY THE COMMITTEE TO BE CONSISTENT WITH THE PURPOSES OF THE PLAN. SUBJECT TO THE TERMS OF THE PLAN AND ANY APPLICABLE AWARD AGREEMENT, THE COMMITTEE SHALL DETERMINE THE TERMS AND CONDITIONS OF ANY SUCH OTHER CASH-BASED AWARD OR OTHER STOCK-BASED AWARD.
Section 12. EFFECT OF SEPERATION FROM SERVICE OR A CHANGE IN CONTROL ON AWARDS .
(a) The Committee may provide, by rule or regulation or in any applicable Award Agreement, or may determine in any individual case, the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event of the Participant’s Separation from Service prior to the end of a Performance Period or vesting, exercise or settlement of such Award.
(b) In the event of a Change in Control, the Committee may, in its sole discretion, and on such terms and conditions as it deems appropriate, take any one or more of the following actions with respect to any outstanding Award, which need not be uniform with respect to all Participants and/or Awards:
(i) continuation or assumption of such Award by the Company (if it is the surviving corporation) or by the successor or surviving corporation or its parent;
(ii) substitution or replacement of such Award by the successor or surviving corporation or its parent with cash, securities, rights or other property to be paid or issued, as the case may be, by the successor or surviving corporation (or a parent or subsidiary thereof), with substantially the same terms and value as such Award (including, without limitation, any applicable performance targets or criteria with respect thereto);
(iii) acceleration of the vesting of such Award and the lapse of any restrictions thereon and, in the case of an Option or Stock Appreciation Right, acceleration of the right to exercise such Award during a specified period (and the termination of such Option or Stock Appreciation Right without payment of any consideration therefor to the extent such Award is not timely exercised), in each case, upon (A) the Participant’s involuntary Separation from Service (including upon a termination of the Participant’s employment by the Company (or a successor corporation or its parent) without “cause” or by the Participant for “good reason”) as such terms may be defined in the applicable Award Agreement and/or the Participant’s employment agreement or offer letter, as the case may be) on or within 24 months following such Change in Control or (B) the failure of the successor or surviving corporation (or its parent) to continue or assume such Award;
(iv) in the case of a Performance Award, determination of the level of attainment of the applicable performance condition(s); and
(v) cancellation of such Award in consideration of a payment, subject to the following: (A) such payment shall be made in cash, securities, rights and/or other property; (B) the amount of such payment shall equal the value of such Award, as determined by the Committee in its reasonable discretion; provided that, in the case of an Option or Stock Appreciation Right, if such value equals the Intrinsic Value of such Award, such value shall be deemed to be valid; provided further that, if the Intrinsic Value of an Option or Stock Appreciation Right is equal to or less than zero, the Committee may, in its sole discretion, provide for the cancellation of such Award without payment of any consideration therefor (for the avoidance of doubt, in the event of a Change in Control, the Committee may, in its sole discretion, terminate any Option or Stock Appreciation Right for which the exercise or hurdle price is equal to or exceeds the per Common Share value of the consideration to be paid in the Change in Control transaction without payment of consideration therefor); and (C) such payment shall be made promptly following such Change in Control or on a specified date or dates following such Change in Control; provided that the timing of such payment shall comply with Section 409A.
Section 13. SECTION 409A . NOTWITHSTANDING ANY PROVISION OF THE PLAN OR AN AWARD AGREEMENT TO THE CONTRARY, IF ANY AWARD PROVIDED UNDER THE PLAN IS SUBJECT TO THE

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PROVISIONS OF SECTION 409A, THE PROVISIONS OF THE PLAN AND ANY APPLICABLE AWARD AGREEMENT SHALL BE ADMINISTERED, INTERPRETED AND CONSTRUED IN A MANNER NECESSARY IN ORDER TO COMPLY WITH SECTION 409A OR AN EXCEPTION THERETO (OR DISREGARDED TO THE EXTENT SUCH PROVISION CANNOT BE SO ADMINISTERED, INTERPRETED OR CONSTRUED), AND THE FOLLOWING PROVISIONS SHALL APPLY, AS APPLICABLE AND AS REQUIRED BY SECTION 409A:
(a) If a Participant is a Specified Employee for purposes of Section 409A and a payment subject to Section 409A (and not excepted therefrom) to the Participant is due upon Separation from Service, such payment shall be delayed for a period of six (6) months after the date the Participant Separates from Service (or, if earlier, the death of the Participant). Any payment that would otherwise have been due or owing during such six-month period will be paid immediately following the end of the six-month period unless another compliant date is specified in the applicable Award Agreement.
(b) For purposes of Section 409A, and to the extent applicable to any Award under the Plan, it is intended that distribution events qualify as permissible distribution events for purposes of Section 409A and shall be interpreted and construed accordingly. Whether a Participant has Separated from Service will be determined by the Committee based on all of the facts and circumstances and, to the extent applicable to any Award, in accordance with the guidance issued under Section 409A.
(c) The grant of Nonqualified Stock Options and Stock Appreciation Rights are intended to be granted under terms and conditions consistent with Treas. Reg. § 1.409A-1(b)(5) such that any such Award does not constitute a deferral of compensation under Section 409A.
Section 14. DEFERRED PAYMENT OF AWARDS . THE COMMITTEE, IN ITS DISCRETION, MAY SPECIFY THE CONDITIONS UNDER WHICH THE PAYMENT OF ALL OR ANY PORTION OF ANY CASH COMPENSATION, OR COMMON SHARES OR OTHER FORM OF PAYMENT UNDER AN AWARD, MAY BE DEFERRED UNTIL A LATER DATE. DEFERRALS SHALL BE FOR SUCH PERIODS OR UNTIL THE OCCURRENCE OF SUCH EVENTS, AND UPON SUCH TERMS AND CONDITIONS, AS THE COMMITTEE SHALL DETERMINE IN ITS DISCRETION, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 409A; PROVIDED, HOWEVER, THAT NO DEFERRAL SHALL BE PERMITTED WITH RESPECT TO STOCK OPTIONS OR STOCK APPRECIATION RIGHTS.
Section 15. TRANSFERABILITY OF AWARDS. EXCEPT PURSUANT TO THE LAWS OF DESCENT AND DISTRIBUTION, A PARTICIPANT’S RIGHTS AND INTEREST UNDER THE PLAN OR ANY AWARD MAY NOT BE ASSIGNED OR TRANSFERRED, HYPOTHECATED OR ENCUMBERED IN WHOLE OR IN PART, INCLUDING, BUT NOT BY WAY OF LIMITATION, EXECUTION, LEVY, GARNISHMENT, ATTACHMENT, PLEDGE, BANKRUPTCY OR IN ANY OTHER MANNER; PROVIDED, HOWEVER, THE COMMITTEE MAY PERMIT SUCH TRANSFER TO A PERMITTED TRANSFEREE; AND PROVIDED, FURTHER, THAT, UNLESS OTHERWISE PERMITTED BY THE CODE, ANY INCENTIVE STOCK OPTION GRANTED PURSUANT TO THE PLAN SHALL NOT BE TRANSFERABLE OTHER THAN BY WILL OR BY THE LAWS OF DESCENT AND DISTRIBUTION, AND SHALL BE EXERCISABLE DURING THE PARTICIPANT’S LIFETIME ONLY BY PARTICIPANT.
Section 16. AMENDMENT OR SUBSTITUTION OF AWARDS OF THE PLAN .
(a) The terms of any outstanding Award under the Plan may be amended or modified from time to time after grant by the Committee in its discretion in any manner that it deems appropriate (including, but not limited to, acceleration of the date of exercise of any Award and/or payments under any Award) in accordance with the terms of the Plan; provided that no such amendments or acceleration shall adversely affect in a material manner any right of a Participant under the Award without his or her written consent. The Committee may, in its discretion, permit holders of Awards under the Plan to surrender outstanding Awards in order to exercise or realize the rights under other Awards, or in exchange for the grant of new Awards, or require holders of Awards to surrender outstanding Awards as a condition precedent to the grant of new Awards under the Plan.
(b) No Repricing . Notwithstanding the foregoing, except as provided in Section 5(b), no action (including the repurchase of Options or Stock Appreciation Right Awards (in each case, that are “out of the money”) for cash and/or other property) shall directly or indirectly, through cancellation and regrant or any other method, reduce, or have the effect of

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reducing, the exercise or hurdle price of any Award established at the time of grant thereof without approval of the Company’s stockholders.
Section 17. TERMINATION OF A PARTICIPANT. FOR ALL PURPOSES UNDER THE PLAN, THE COMMITTEE SHALL DETERMINE WHETHER A PARTICIPANT HAS SEPARATED FROM SERVICE, TERMINATED EMPLOYMENT WITH, OR TERMINATED THE PERFORMANCE OF SERVICES FOR, THE COMPANY OR ANY SUBSIDIARY; PROVIDED, HOWEVER, AN ABSENCE OR LEAVE APPROVED BY THE COMPANY, TO THE EXTENT PERMITTED BY APPLICABLE PROVISIONS OF THE CODE, SHALL NOT BE CONSIDERED AN INTERRUPTION OF EMPLOYMENT OR PERFORMANCE OF SERVICES FOR ANY PURPOSE UNDER THE PLAN.
Section 18. DESIGNATION OF BENEFICIARY BY PARTICIPANT. A PARTICIPANT MAY NAME A BENEFICIARY TO RECEIVE ANY PAYMENT TO WHICH SUCH PARTICIPANT MAY BE ENTITLED WITH RESPECT TO ANY AWARD UNDER THE PLAN IN THE EVENT OF HIS OR HER DEATH, ON A WRITTEN FORM TO BE PROVIDED BY AND FILED WITH THE COMMITTEE, AND IN A MANNER DETERMINED BY THE COMMITTEE IN ITS DISCRETION (A “ BENEFICIARY ”). THE COMMITTEE RESERVES THE RIGHT TO REVIEW AND APPROVE BENEFICIARY DESIGNATIONS. A PARTICIPANT MAY CHANGE HIS OR HER BENEFICIARY FROM TIME TO TIME IN THE SAME MANNER, UNLESS SUCH PARTICIPANT HAS MADE AN IRREVOCABLE DESIGNATION. ANY DESIGNATION OF A BENEFICIARY UNDER THE PLAN (TO THE EXTENT IT IS VALID AND ENFORCEABLE UNDER APPLICABLE LAW) SHALL BE CONTROLLING OVER ANY OTHER DISPOSITION, TESTAMENTARY OR OTHERWISE, AS DETERMINED BY THE COMMITTEE IN ITS DISCRETION. IF NO DESIGNATED BENEFICIARY SURVIVES THE PARTICIPANT AND IS LIVING ON THE DATE ON WHICH ANY AMOUNT BECOMES PAYABLE TO SUCH A PARTICIPANT’S BENEFICIARY, SUCH PAYMENT WILL BE MADE TO THE LEGAL REPRESENTATIVES OF THE PARTICIPANT’S ESTATE, AND THE TERM “ BENEFICIARY ” AS USED IN THE PLAN SHALL BE DEEMED TO INCLUDE SUCH PERSON OR PERSONS. IF THERE ARE ANY QUESTIONS AS TO THE LEGAL RIGHT OF ANY BENEFICIARY TO RECEIVE A DISTRIBUTION UNDER THE PLAN, THE COMMITTEE IN ITS DISCRETION MAY DETERMINE THAT THE AMOUNT IN QUESTION BE PAID TO THE LEGAL REPRESENTATIVES OF THE ESTATE OF THE PARTICIPANT, IN WHICH EVENT THE COMPANY, THE BOARD, THE COMMITTEE AND THE MEMBERS THEREOF, WILL HAVE NO FURTHER LIABILITY TO ANYONE WITH RESPECT TO SUCH AMOUNT.
Section 19. MISCELLANEOUS PROVISIONS .
(a) Any proceeds from Awards shall constitute general funds of Company.
(b) No fractional shares may be delivered under an Award, but in lieu thereof a cash or other adjustment may be made as determined by the Committee in its discretion.
(c) No Eligible Person or other Person shall have any claim or right to be granted an Award under the Plan. Determinations made by the Committee under the Plan need not be uniform and may be made selectively among Eligible Persons under the Plan, whether or not such Eligible Persons are similarly situated. Neither the Plan nor any action taken under the Plan shall be construed as giving any Eligible Person any right to continue to be employed by or perform services for the Company, and the Company specifically reserves the right to terminate the employment of, or performance of services by, Eligible Persons at any time and for any reason.
(d) No Participant or other Person shall have any right with respect to the Plan or the Common Shares reserved for issuance under the Plan or in any Award, contingent or otherwise, until written evidence of the Award shall have been delivered to the Participant and all the terms, conditions and provisions of the Plan and the Award applicable to such Participant (and each Person claiming under or through him or her) have been met.
(e) Notwithstanding anything to the contrary contained in the Plan or in any Award agreement, each Award shall be subject to the requirement, if at any time the Committee shall determine, in its sole discretion, that such requirement shall apply, that the listing, registration or qualification of any Award under the Plan, or of the Common Shares, Other Company Securities or property or other forms of payment issuable pursuant to any Award under the Plan, on any stock exchange or other market quotation system or under any federal or state law, or the consent or approval of any government regulatory body, is necessary as a condition of, or in connection with, the granting of such Award or the exercise or settlement thereof, such Award shall not be granted, exercised or settled in whole or in part until such listing, registration, qualification,

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consent or approval shall have been effected, obtained and maintained free of any conditions not acceptable to the Committee. Notwithstanding anything to the contrary contained in the Plan or in any Award agreement, no Common Shares, Other Company Securities or property or other forms of payment shall be issued under the Plan with respect to any Award unless the Committee shall be satisfied that such issuance will be in compliance with applicable law and any applicable rules of any stock exchange or other market quotation system on which such Common Shares are listed. If the Committee determines that the exercise of any Stock Option or Stock Appreciation Right would fail to comply with any applicable law or any applicable rules of any stock exchange or other market quotation system on which Common Shares are listed, the Participant holding such Stock Option or Stock Appreciation Right shall have no right to exercise such Stock Option or Stock Appreciation Right until such time as the Committee shall have determined that such exercise will not violate any applicable law or any such applicable rule.
(f) Although it is the intent of Company that the Plan and Awards hereunder, to the extent the Committee deems appropriate and to the extent applicable, comply with Rule 16b-3 and Sections 409A and 422; (i)the Company does not warrant that any Award under the Plan will qualify for favorable tax treatment under any provision of federal, state, local or non-United States law; and (ii)in no event shall any member of the Committee or the Company (or its employees, officers or directors) have any liability to any Participant (or any other Person) due to the failure of an Award to satisfy the requirements of Rule 16b-3 or Section 409A or 422 or, as applicable, for any tax, interest, or penalties the Participant might owe as a result of the grant, holding, vesting, exercise, or payment of any Award under the Plan.
(g) The Company shall have the right to deduct from any payment made under the Plan any federal, state, local or foreign income or other taxes required by law to be withheld with respect to such payment. It shall be a condition to the obligation of Company to issue Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof, upon exercise, settlement or payment of any Award under the Plan, that the Participant (or any Beneficiary or Person entitled to act) pay to the Company, upon its demand, such amount as may be required by the Company for the purpose of satisfying any liability to withhold federal, state, local or foreign income or other taxes. If the amount requested is not paid, the Company may refuse to issue Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof. Notwithstanding anything in the Plan to the contrary, the Committee may, in its discretion, permit an Eligible Person (or any Beneficiary or Person entitled to act) to elect to pay a portion or all of the amount requested by the Company for such taxes with respect to such Award, at such time and in such manner as the Committee shall deem to be appropriate (including, but not limited to, by authorizing the Company to withhold, or agreeing to surrender to the Company on or about the date such tax liability is determinable, Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof, owned by such Person or a portion of such forms of payment that would otherwise be distributed, or have been distributed, as the case may be, pursuant to such Award to such Person, having a Fair Market Value equal to the amount of such taxes); provided, however , that any broker-assisted cashless exercise shall comply with the requirements of Financial Accounting Standards Board, Accounting Standards Codification, Topic 718, and any withholding satisfied through a net-settlement of an Award shall be limited to the maximum statutory withholding requirements.
(h) The expenses of the Plan shall be borne by the Company.
(i) The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the payment of any Award under the Plan, and rights to the payment of Awards shall be no greater than the rights of the Company’s general creditors.
(j) By accepting any Award or other benefit under the Plan, each Participant (and each Person claiming under or through him or her) shall be conclusively deemed to have indicated his or her acceptance and ratification of, and consent to, any action taken under the Plan by the Company, the Board or the Committee.
(k) Records of the Company shall be conclusive for all purposes under the Plan or any Award, unless determined by the Committee to be incorrect.
(l) If any provision of the Plan or any Award is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of the Plan or any Award, but such provision shall be fully severable, and the Plan or Award, as applicable, shall be construed and enforced as if the illegal or invalid provision had never been included in the Plan or Award, as applicable.

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(m) The terms of the Plan shall govern all Awards under the Plan and in no event shall the Committee have the power to grant any Award under the Plan that is contrary to any of the provisions of the Plan.
(n) Notwithstanding the foregoing, any Award granted under the Plan which is or becomes subject to recovery under any Company policy adopted after the Effective Date or required by law, regulation or stock exchange listing requirement, shall be subject to such deductions, recoupment, and clawback as may be required to be made pursuant to such Company policy (the “ Clawback Policy ”) or applicable law, regulation or stock exchange listing requirement. Upon the adoption of the Clawback Policy, the Committee is hereby granted the authority, in its discretion, to amend and/or terminate any similar recoupment and clawback provisions in outstanding Awards which are inconsistent with, similar to, or duplicative of, such Clawback Policy.
(o) The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying securities, tax or other laws of various jurisdictions in which the Company intends to grant Awards. Any sub-plans shall contain such limitations and other terms and conditions as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but, if applicable, each sub-plan shall apply only to the Participants in the jurisdiction for which the sub-plan was designed. Awards may be granted to Participants who are non-United States nationals or employed or providing services outside the United States, or both, on such terms and conditions different from those applicable to Awards to Participants who are employed or providing services in the United States as may, in the judgment of the Committee, be necessary or desirable to recognize differences in local law, tax policy or custom.
Section 20. EFFECTIVE DATE AND APPROVAL DATE. THE PLAN SHALL BECOME EFFECTIVE UPON THE DATE OF APPROVAL OF THE PLAN BY THE BOARD (THE “ EFFECTIVE DATE ”); PROVIDED, HOWEVER, THAT THE PLAN SHALL BE SUBJECT TO THE SUBSEQUENT APPROVAL BY THE COMPANY’S STOCKHOLDERS, SUCH STOCKHOLDER APPROVAL TO BE OBTAINED NOT LATER THAN ONE YEAR AFTER THE EFFECTIVE DATE. ANY AWARDS GRANTED UNDER THE PLAN PRIOR TO SUCH APPROVAL BY STOCKHOLDERS SHALL BE SUBJECT TO SUCH APPROVAL, AND, IN THE ABSENCE OF SUCH APPROVAL, SUCH AWARDS SHALL BE NULL AND VOI D
Section 21. PLAN AMENDMENT OR SUSPENSION. THE PLAN MAY BE AMENDED OR SUSPENDED IN WHOLE OR IN PART AT ANY TIME AND/OR FROM TIME TO TIME BY THE COMMITTEE; PROVIDED THAT NO SUCH CHANGE OR AMENDMENT SHALL BE MADE WITHOUT STOCKHOLDER APPROVAL IF SUCH APPROVAL IS NECESSARY TO QUALIFY FOR OR COMPLY WITH ANY TAX OR REGULATORY REQUIREMENT OR OTHER APPLICABLE LAW FOR WHICH THE COMMITTEE DEEMS IT NECESSARY OR DESIRABLE TO QUALIFY OR COMPLY. NO AMENDMENT OF THE PLAN SHALL ADVERSELY AFFECT IN A MATERIAL MANNER ANY RIGHT OF ANY PARTICIPANT WITH RESPECT TO ANY AWARD PREVIOUSLY GRANTED WITHOUT SUCH PARTICIPANT’S WRITTEN CONSENT, EXCEPT AS PERMITTED UNDER ‎SECTION 5(B). NOTWITHSTANDING THE FOREGOING OR ANY PROVISION OF THE PLAN TO THE CONTRARY, THE COMMITTEE MAY AT ANY TIME (WITHOUT THE CONSENT OF ANY PARTICIPANT) MODIFY, AMEND OR TERMINATE ANY OR ALL OF THE PROVISIONS OF THE PLAN OR AN AWARD TO THE EXTENT NECESSARY TO CONFORM THE PROVISIONS OF THE PLAN WITH SECTION 409A OR ANY OTHER PROVISION OF THE CODE OR OTHER APPLICABLE LAW, THE REGULATIONS ISSUED THEREUNDER OR AN EXCEPTION THERETO, REGARDLESS OF WHETHER SUCH MODIFICATION, AMENDMENT OR TERMINATION OF THE PLAN SHALL ADVERSELY AFFECT THE RIGHTS OF A PARTICIPANT.
Section 22. TERM OF THE PLAN . NO AWARDS SHALL BE GRANTED UNDER THE PLAN AFTER EARLIER OF THE FOLLOWING DATES OR EVENTS TO OCCUR:
(a) upon the adoption of a resolution of the Board terminating the Plan; or
(b) the tenth anniversary of the Effective Date.
Section 23. GOVERNING LAW . THE PLAN AND ANY AWARD GRANTED UNDER THE PLAN AS WELL AS ANY DETERMINATIONS MADE OR ACTIONS TAKEN UNDER THE PLAN SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CHOICE OR CONFLICTS OF LAWS PRINCIPLES.

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ARTICLE 9    APPENDIX A
ARTICLE 10    THE FOLLOWING TERMS SHALL HAVE THE MEANING INDICATED:
ARTICLE 11    “ AFFILIATE ” MEANS ANY ENTITY THAT, DIRECTLY OR INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH, THE COMPANY.
“ Award ” means an award of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Awards, Other Cash-Based Awards or Other Stock-Based Awards to an Eligible Person under the Plan.
“ Award Agreement ” means any agreement, contract or other instrument or document (including in electronic form) evidencing any Award granted under the Plan, which may, but need not, be executed or acknowledged by a Participant.
“ Beneficiary ” has the meaning set forth in Section 18.
“ Board ” means the Board of Directors of the Company.
“ Clawback Policy ” has the meaning set forth in Section 19(n).
“ Change in Control ” means the occurrence of any one or more of the following events:
(i) any Person, other than (A)any employee plan established by the Company or any Subsidiary, (B)the Company or any of its Affiliates, (C)an underwriter temporarily holding securities pursuant to an offering of such securities, or (D)a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company, is (or becomes, during any 12-month period) the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business) representing 50% or more of the total voting power of the stock of the Company; provided that the provisions of this subsection (i) are not intended to apply to or include as a Change in Control any transaction that is specifically excepted from the definition of Change in Control under subsection (iii) below;
(ii) a change in the composition of the Board such that, during any 12-month period, which shall in no event begin prior to the Initial Public Offering, the individuals who constitute the Board at the time of the Initial Public Offering (the “ Existing Board ”) cease for any reason to constitute at least 50% of the Board; provided , however , that any individual becoming a member of the Board subsequent to the Initial Public Offering whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the Directors immediately prior to the date of such appointment or election shall be considered as though such individual were a member of the Existing Board; provided further , that, notwithstanding the foregoing, no individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 or Regulation 14A promulgated under the Exchange Act or successor statutes or rules containing analogous concepts) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate or other entity or Person other than the Board, shall in any event be considered to be a member of the Existing Board;
(iii) the consummation of a merger or consolidation of the Company with any other corporation or other entity, or the issuance of voting securities in connection with a merger or consolidation of the Company pursuant to applicable stock exchange requirements; provided that immediately following such merger or consolidation the voting securities of the Company outstanding immediately prior thereto do not continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity of such merger or consolidation or parent entity thereof) 50% or more of the total voting power of the Company’s stock (or, if the Company is not the surviving entity of such merger or consolidation, 50% or more of the total voting power of the stock of such surviving entity or parent entity thereof); and provided , further , that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates other than in

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connection with the acquisition by the Company or its Affiliates of a business) representing 50% or more of either the then-outstanding Common Shares or the combined voting power of the Company’s then-outstanding voting securities shall not be considered a Change in Control; or
(iv) the sale or disposition by the Company of the Company’s assets in which any Person acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Person) assets from the Company that have a total gross fair market value equal to more than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions.
Notwithstanding the foregoing, (A) no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the Common Shares immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns substantially all of the assets of the Company immediately prior to such transaction or series of transactions, (B) for purposes of any compensation that constitutes “nonqualified deferred compensation” pursuant to Section 409A, no event or circumstances described in any of clauses (i) through (iv) above shall constitute a Change in Control unless such event or circumstances also constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the Company’s assets, in each case, as defined in Section 409A. Terms used in the definition of a Change in Control shall be as defined or interpreted in a manner consistent with Section 409A of the Code.
“ Code ” shall mean the Internal Revenue Code of 1986, as it now exists or may be amended from time to time, and the rules and regulations promulgated thereunder, as they may exist or may be amended from time to time.
“ Committee ” shall mean the person or persons responsible for administering the Plan as appointed by the Board; provided, however , that at any time the Board may designate itself as the Committee or designate itself to administer certain of the Committee’s authority under the Plan, including administering certain Awards under the Plan.
“ Common Shares ” means shares of common stock, par value $0.01 per share, of the Company and stock of any other class into which such shares may thereafter be changed.
“ Consultant ” means any individual, including an advisor, who is providing services to the Company or any Subsidiary or who has accepted an offer of service or consultancy from the Company or any Subsidiary.
“ Director ” means any member of the Board.
“ Dividend Equivalents ” means an award of cash or other property with a Fair Market Value equal to the dividends which would have been paid on the Common Shares underlying an outstanding Award of Restricted Stock Units had such Common Shares been outstanding.
“ Effective Date ” has the meaning set forth in Section 21.
“ Eligible Person(s) ” means those persons who are (i) full or part-time employees or Consultants of the Company or any Subsidiary or (ii) other individuals who perform services for the Company or any Subsidiary, including, without limitation, Directors who are not employees of the Company or any Subsidiary.
“ Exchange Act ” means the Securities Exchange Act of 1934, as it now exists or may be amended from time to time, and the rules promulgated thereunder, as they may exist or may be amended from time to time.
“ Fair Market Value ” means (i) with respect to the Common Shares, as of any date (A) if the Company’s Common Shares are listed on any established stock exchange, system or market, the closing market price of the Common Shares as quoted in such exchange, system or market on the day before such date as reported in the Wall Street Journal or such other source as the Committee deems reliable or (B) in the absence of an established market for the Common Shares, as determined in good faith by the Committee or (ii) with respect to property other than Common Shares, the value of such property, as determined by the Committee, in its sole discretion.
“ Incentive Stock Option ” means a Stock Option that is an incentive stock option as defined in Section 422 of the Code.

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“ Intrinsic Value ” with respect to an Option or Stock Appreciation Right means (i) the excess, if any, of the price or implied price per Common Share in a Change in Control or other event over (ii) the exercise or hurdle price of such Award multiplied by (iii) the number of Common Shares covered by such Award.
“ Nonqualified Stock Option ” means a Stock Option that is not an incentive stock option as defined in Section 422 of the Code.
“ Option ” means an Incentive Stock Option or a Non-Qualified Stock Option.
“ Other Company Securities ” means Company securities (which may include, but need not be limited to, unbundled stock units or components thereof, debentures, preferred stock, warrants, securities convertible into Common Shares or other property) other than Common Shares.
“ Other Cash-Based Award ” means an Award granted pursuant to Section 11, including cash awarded as a bonus or upon the attainment of specified performance criteria or otherwise as permitted under the Plan.
“ Other Stock-Based Award ” means an Award granted pursuant to Section 11 that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Common Shares or factors that may influence the value of Common Shares, including convertible or exchangeable debt securities, other rights convertible or exchangeable into Common Shares, purchase rights for Common Shares, dividend rights or dividend equivalent rights or Awards with a value and payment contingent upon performance of the Company or business units thereof or any other factors designated by the Committee.
“ Participant ” means an Eligible Person to whom an Award has been granted under the Plan.
“ Performance Award ” means an Award subject, in part, to the terms, conditions and restrictions described in Section 10, pursuant to which the recipient may become entitled to receive cash, Common Shares, Other Company Securities or other property issuable under the Plan, or any combination thereof, as determined by the Committee.
“ Performance Period ” means the period established by the Committee with respect to any Performance Award during which the performance goals specified by the Committee with respect to such Award are to be measured.
“ Permitted Transferee ” means (i) any person defined as an employee in the Instructions to Registration Statement Form S-8 promulgated by the Securities and Exchange Commission, as such form may be amended from time to time, which persons include, as of the date of adoption of the Plan, executors, administrators or beneficiaries of the estates of deceased Participants, guardians or members of a committee for incompetent former Participants, or similar persons duly authorized by law to administer the estate or assets of former Participants, and (ii) Participants’ family members who acquire Awards from the Participant other than for value, including through a gift or a domestic relations order. For purposes of this definition, “family member” includes any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Participant’s household (other than a tenant or employee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant) own more than fifty percent of the voting interests. For purposes of this definition, neither (i) a transfer under a domestic relations order in settlement of marital property rights, nor (ii) a transfer to an entity in which more than fifty percent of the voting or beneficial interests are owned by family members (or the Participant) in exchange for an interest in that entity is considered a transfer for “value”.
“ Person ” means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, governmental body or other entity of any kind.
“ Restricted Period ” has the meaning set forth in Section 9(b).
“ Restricted Stock ” means an Award of Common Shares that are issued subject, in part, to the terms, conditions and restrictions described in Section 9.

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“ Restricted Stock Units ” means an Award of the right to receive either (as the Committee determines) Common Shares or cash equal to the Fair Market Value of a Common Share on the payment date, issued subject, in part, to the terms, conditions and restrictions described in Section 9.
“ Rule 16b-3 ” means Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act and any successor rule.
“ Section 409A ” means Section 409A of the Code, any rules or regulations promulgated thereunder, as they may exist or may be amended from time to time, or any successor to such section.
“ Section 422 ” means Section 422 of the Code, any rules or regulations promulgated thereunder, as they may exist or may be amended from time to time, or any successor to such section.
“ Separation from Service ” and “ Separate from Service ” means the Participant’s death, retirement or other termination of employment or service with the Company (including all persons treated as a single employer under Sections 414(b) and 414(c) of the Code) that constitutes a “separation from service” (within the meaning of Section 409A).
“ Specified Employee ” means a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company as determined in accordance with Section 409A and the procedures established by the Company.
“ Stock Appreciation Right ” means an Award of a right to receive (without payment to the Company) cash, Common Shares, Other Company Securities or other property, or other forms of payment, or any combination thereof, as determined by the Committee, based on the increase in the value of the number of Common Shares specified in the Stock Appreciation Right. Stock Appreciation Rights are subject, in part, to the terms, conditions and restrictions described in Section 8.
“ Subsidiary ” means an entity of which the Company directly or indirectly holds at least a majority of the value of the outstanding equity interests of such entity or a majority of the voting power with respect to the voting securities of such entity.
“ Substitute Award ” means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or other business acquired by the Company or with which the Company combines.
“ Ten Percent Employee ” means an employee of the Company or any Subsidiary who owns stock representing more than ten percent of the voting power of all classes of stock of the Company or any parent or subsidiary of the Company within the meaning of Sections 424(e) and (f) of the Code.
“ Treasury Regulation ” means a final, proposed or temporary regulation of the Department of Treasury under the Code and any successor regulation.


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EXHIBIT D

Exhibit D
Form of Record Owner Written Consent

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EXHIBIT D

CONTURA ENERGY, INC.
(a Delaware corporation)
WRITTEN CONSENT OF STOCKHOLDERS
[ l ], 2018
Pursuant to Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (“ DGCL ”), the Amended and Restated Certificate of Incorporation (the “ Existing Certificate of Incorporation ”) of Contura Energy, Inc. (the “ Corporation ”) and the Amended and Restated Bylaws (the “ Existing Bylaws ”) of the Corporation, the undersigned stockholders (the “ Stockholders ”), who constitute the holders of not less than the minimum number of votes that would be necessary to authorize or take the following actions at a meeting at which all of the shares entitled to vote thereon were present, hereby consent to the adoption of the following resolutions and hereby waive any notice required by law, the Existing Certificate of Incorporation or the Existing Bylaws with respect thereto:
Adoption of the Second Amended and Restated Certificate of Incorporation
WHEREAS , the Board of Directors of the Corporation (the “ Board ”) has determined that it is advisable and in the best interest of the Corporation and its stockholders that, contingent on and effective immediately prior to the closing of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of April 25, 2018, by and between ANR, Inc. (“ ANR ”), a Delaware corporation, Alpha Natural Resources Holdings, Inc., a Delaware corporation, the Corporation (“ Holdings ”), Prime Acquisition I, Inc., a Delaware corporation and wholly owned Subsidiary of Contura (“ MergerSub 1 ”), and Prime Acquisition II, Inc., a Delaware corporation and wholly owned Subsidiary of MergerSub 1 (the “ Merger Transaction ”), the Existing Certificate of Incorporation be amended and restated in substantially the form attached hereto as Exhibit A (the “ Second Amended and Restated Certificate of Incorporation ”), in order to, among other things, increase the number of shares of the Corporation’s common stock, par value $0.01 per share (the “ Common Stock ”) and preferred stock, par value $0.01 per share, authorized for issuance by the Corporation, and has recommended the approval of the Second Amended and Restated Certificate of Incorporation by the stockholders;
NOW, THEREFORE, BE IT RESOLVED , that the Second Amended and Restated Certificate of Incorporation, recommended by the Board and substantially in the form attached hereto as Exhibit A , is hereby adopted and approved in all respects, provided that the Second Amended and Restated Certificate of Incorporation shall not become effective until immediately prior to the closing of the Merger Transaction.
Approval of the Indemnification Agreements
WHEREAS , the Board has determined that it is advisable and in the best interest of the Corporation and its stockholders that, contingent on, and effective contemporaneously with, the effectiveness of the registration statement on Form S-4 filed in connection with the Merger Transaction (the “ Registration Statement ”), the Corporation enter into indemnification agreements with each of its directors and executive officers in substantially the form attached hereto as Exhibit B (the “ Indemnification Agreements ”);
NOW, THEREFORE, BE IT RESOLVED , that the Indemnification Agreements to be entered into with each the Corporation’s directors and executive officers, substantially in the form attached hereto as Exhibit B , is hereby approved, contingent on, and effective contemporaneously with, the effectiveness of the Registration Statement.
Adoption of the 2018 Long-Term Incentive Plan
WHEREAS , the Board has determined that it is advisable and in the best interest of the Corporation and its stockholders to adopt the Contura Energy, Inc. 2018 Long-Term Incentive Plan, substantially in the form attached as Exhibit C hereto (the “ LTIP ”).
NOW, THEREFORE, BE IT RESOLVED , the LTIP is hereby approved and adopted, and the Corporation is authorized to reserve up to 1,000,000 shares of the Corporation’s common stock for issuance under the LTIP.

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EXHIBIT D

General Authorizing Resolutions
FURTHER RESOLVED , that the officers and directors of the Corporation be, and each acting alone is, hereby authorized, empowered and directed, for and on behalf of the Corporation, to take or cause to be taken any and all actions, including, without limitation, the execution, acknowledgement, filing, amendment and delivery of any and all papers, agreements, documents, instruments and certificates, and the payment of such sums, as such officers and directors may deem necessary or advisable in order to carry out fully the intent and purposes of the foregoing resolutions and each of them, and that the performance of such acts by them shall be conclusive evidence of the approval thereof and the authority therefor by and from the Corporation; and
FURTHER RESOLVED , that all actions heretofore taken by any officer or director of the Corporation in connection with the transactions contemplated by the foregoing resolutions be, and they hereby are, approved, ratified and confirmed in all respects.
[Signature Page Follows]

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EXHIBIT D

Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned have executed this Written Consent of Stockholders of the Corporation as of the date first set forth above. By executing this Signature Page, the undersigned hereby represents and warrants that the undersigned holds of record the number of shares of Common Stock owned by the beneficial owner as set forth below.
Date:
 
 
 
 
 
 
By:
 
Number of shares of Common Stock
 
 
Name:
 
owned by the beneficial owner and held of record by such Stockholder:
 
 
Title:
 
_____________________
 
 
 
 
Beneficial owner:
 
 
 
 
_____________________
 
 
 
 




















[Signature Page to Contura Energy, Inc. Stockholder Consent]

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ANNEX B

MOELISLOGOA01.JPG
 
399 Park Avenue
5 th  Floor
New York, New York 10022
 

T 212.883.3807
F 212.880.4260
April 29, 2018
Board of Directors
ANR, Inc.
636 Shelby Street, 3 rd Floor
Bristol, TN 37620
Members of the Board:
The Board of Directors of ANR, Inc. (“ANR”) (solely in its capacity as such) has requested our opinion as to the fairness, from a financial point of view, to the holders of Class C-1 common stock, par value $0.01 per share (“ANR C-1 Common Stock”), of ANR, Inc. of the Exchange Ratio (as defined below) set forth in the Agreement and Plan of Merger (the “Agreement”) to be entered into by and between ANR, Alpha Natural Resources Holdings, Inc. (“Holdings”), Contura Energy, Inc. (“Contura”), Prime Acquisition I, Inc., a wholly owned subsidiary of Contura (“Merger Sub 1”), and Prime Acquisition II, Inc., a wholly owned subsidiary of Merger Sub 1 (“Merger Sub 2”). We understand that the Agreement provides for, among other things, (x) the merger of Holdings with Merger Sub 1 (the “First Merger”) pursuant to which Holdings will continue as the surviving corporation and become a wholly owned subsidiary of Contura and (y) the merger of ANR with Merger Sub 2 (the “Second Merger” and together with the First Merger, the “Transaction”) pursuant to which ANR will continue as the surviving corporation and become a wholly owned subsidiary of Holdings. Pursuant to the Transaction and as more fully described in the Agreement, (x) each issued and outstanding share of ANR C-1 Common Stock will be converted into the right to receive 0.4071 shares (the “Exchange Ratio”) of common stock, par value $0.01 per share (“Contura Common Stock”), of Contura, (y) each issued and outstanding share of Class C-2 Common Stock, par value $0.01 per share (“ANR C-2 Common Stock”), of ANR will be canceled for no consideration and (z) each issued and outstanding share of common stock, par value $0.01 per share (“Holdings Common Stock”), of Holdings will be converted into the right to receive that number of shares of Contura Common Stock equal to the Exchange Ratio.
In arriving at our opinion, we have, among other things: (i) reviewed certain publicly available business and financial information relating to ANR, Holdings and Contura; (ii) reviewed certain internal information relating to the business, earnings, cash flow, assets, liabilities and prospects of ANR furnished to us by ANR, including financial forecasts prepared and provided to us (and discussed with us) by the management of ANR (“ANR Projections”); (iii) reviewed certain internal information relating to the business, earnings, cash flow, assets, liabilities and prospects of Contura furnished to us by Contura, including financial forecasts prepared and provided to us (and discussed with us) by the management of Contura (“Contura Projections”); (iv) reviewed certain financial forecasts for Contura reflecting adjustments to the Contura Projections made by the management of ANR regarding the financial impact attributable to the expiration of ANR’s marketing arrangement with Contura (the “Contura Adjusted Projections”); (v) reviewed estimates of management of ANR regarding cost savings anticipated to result from the Transaction, including the amount and timing thereof (“Synergy Estimates”); (vi) reviewed estimates of management of ANR regarding ANR’s and Contura’s anticipated utilization of their respective net operating losses and realization of their respective other tax assets, including the amount and timing thereof (“Tax Attribute Estimates”); (vii) conducted discussions with members of the senior management and representatives of ANR and Contura concerning the information described in clauses (i) through (vi) of this paragraph, as well as the business and prospects of ANR and Contura generally; (viii) reviewed publicly available financial and stock market data of certain other companies in lines of business that we deemed relevant; (ix) reviewed a draft, dated April 28, 2018, of the Agreement; (x) participated in certain discussions and negotiations among representatives of ANR and Contura and their advisors; and (xi) conducted such other financial studies and analyses and took into account such other information as we deemed appropriate.
In connection with our review, we have, with your consent, relied on the information supplied to, discussed with or reviewed by us for purposes of this opinion being complete and accurate in all material respects. We have not assumed any responsibility for independent verification of, and did not independently verify, any of such information. With your consent, we have relied upon, without independent verification, the assessment of ANR and its legal, tax, regulatory, environmental

B-1
MOELISLOGOA01.JPG
 
 

and accounting advisors with respect to legal, tax, regulatory, environmental and accounting matters. With respect to the ANR Projections and Contura Projections referred to above, we have assumed, at your direction, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR or Contura, as the case may be, as to the future performance of ANR and Contura, respectively. With respect to the Contura Adjusted Projections referred to above, we have assumed, at your direction, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR as to the future performance of Contura. With respect to the Synergy Estimates, we have assumed, at your direction, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR as to the cost savings anticipated to result from the Transaction (including the amount and timing thereof). With respect to the Tax Attribute Estimates, we have assumed, at your direction, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of ANR as to ANR’s and Contura’s respective net operating losses and the anticipated utilization thereof and realization of other tax assets (including the amount and timing thereof). We express no views as to the reasonableness of any financial forecasts or the assumptions or methodologies on which they are based. With your consent, we have not made any independent evaluation or appraisal of any of the assets or liabilities (contingent, derivative, off-balance-sheet, or otherwise) of ANR, Holdings or Contura, nor have we been furnished with any such evaluation or appraisal. In addition, you have advised us (and we have relied on the fact) that the ANR certificate of incorporation provides that the rights of the ANR C-1 Common Stock and the ANR C-2 Common Stock are substantially equal (other than with respect to voting rights), and such certificate of incorporation provides for the holders of the ANR C-1 Common Stock and the holders of ANR C-2 Common Stock to receive the same per share consideration in any merger or similar transaction. You have also advised us, and, we have assumed with your consent, that Holdings has no assets or liabilities, other than its interest in shares of ANR C-2 Common Stock. Accordingly, we have assumed, with your consent, that the ANR C-1 Common Stock and the ANR C-2 Common Stock are identical for purposes of our analysis and opinion.
Our opinion does not address ANR’s underlying business decision to effect the Transaction or the relative merits of the Transaction as compared to any alternative business strategies or transactions that might be available to ANR and does not address any legal, regulatory, environmental, tax or accounting matters. At your direction, we have not been asked to, nor do we, offer any opinion as to any terms of the Agreement or any aspect or implication of the Transaction, except for the fairness of the Exchange Ratio from a financial point of view to the holders of ANR C-1 Common Stock. We are also not expressing any opinion as to what the value of shares of Contura Common Stock actually will be when issued in the Transaction or the prices at which shares of ANR C-1 Common Stock, ANR C-2 Common Stock, Holdings Common Stock or Contura Common Stock may trade at any time. We have assumed, with your consent, that the shares of Contura Common Stock to be issued in the Transaction will be authorized for trading on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market. In addition, for purposes of our analyses and this opinion we have at your direction assumed that, for U.S. federal income tax purposes, the Transaction will qualify as a “reorganization” within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended. In rendering this opinion, we have assumed, with your consent, that the final executed form of the Agreement will not differ in any material respect from the draft that we have reviewed, that the Transaction will be consummated in accordance with its terms without any waiver or modification that could be material to our analysis, and that the parties to the Agreement will comply with all the material terms of the Agreement. We have assumed, with your consent, that all governmental, regulatory or other consents or approvals necessary for the completion of the Transaction will be obtained, except to the extent that could not be material to our analysis.
Our opinion is necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to us as of, the date hereof, and we assume no responsibility to update this opinion for developments occurring or coming to our attention after the date hereof. As you are aware, certain data underlying our analysis and opinion pre-dates (and/or does not reflect the impact of) recently enacted federal tax legislation. The financial and stock markets have been adjusting to the impacts of such legislation, and we express no opinion or view as to any potential effects of such impacts on ANR, Holdings, Contura or the Transaction.
We have acted as financial advisor to ANR in connection with the Transaction and will receive a fee for our services, the principal portion of which is contingent upon the consummation of the Transaction. We have received monthly fees in connection with our engagement and will also receive fees upon execution of the Agreement and upon delivery of this opinion. Our affiliates, employees, officers and partners may at any time own securities (long or short) of ANR, Holdings and Contura. We have provided investment banking and other services to ANR unrelated to the Transaction and in the future may provide such services to Contura, ANR and Holdings and have received and may receive compensation for such

B-2
MOELISLOGOA01.JPG
 
 

services. In the past two years prior to the date hereof, we acted as financial advisor to ANR in connection with certain capital structuring transactions, for which we received compensation.
This opinion is for the use and benefit of the Board of Directors of ANR (solely in its capacity as such) in its evaluation of the Transaction. This opinion does not constitute a recommendation as to how any holder of any securities should vote or act with respect to the Transaction or any other matter. This opinion does not address the fairness of the Transaction or any aspect or implication thereof to, or any other consideration of or relating to, the holders of any class of securities, creditors or other constituencies of ANR or Holdings, other than the fairness of the Exchange Ratio from a financial point of view to the holders of ANR C-1 Common Stock. We are not expressing any opinion with respect to the form or structure of the Transaction, including any agreements entered into between ANR or Holdings with any of their officers, directors or employees to repurchase securities of ANR or Holdings (each, a “Repurchase Agreement”), the fairness of the aggregate consideration to be received by any holder of ANR C-1 Common Stock that is subject to a Repurchase Agreement, the allocation of the Exchange Ratio among the holders of ANR C-1 Common Stock and the holders of ANR C-2 Common Stock, or between ANR and Holdings (and their respective stockholders), or the relative fairness of the Exchange Ratio to any such stockholders or entities. We are also not expressing any opinion as to the value of the greater voting power attributable to shares of ANR C-2 Common Stock or any securities of Holdings (relative to the shares of ANR C-1 Common Stock or otherwise), or as to the application of the provisions of the ANR certificate of incorporation that would permit holders of shares of ANR C-2 Common Stock to receive securities with greater voting power than the securities issued to holders of shares of ANR C-1 Common Stock). We do not express any opinion as to the fairness of the amount or nature of any compensation to be received by any officers, directors or employees of any parties to the Transaction, or any class of such persons, including under the Repurchase Agreements, relative to the Exchange Ratio or otherwise. This opinion was approved by a Moelis & Company LLC fairness opinion committee.
Based upon and subject to the foregoing, it is our opinion that, as the date hereof, the Exchange Ratio set forth in the Agreement is fair from a financial point of view to holders of ANR C-1 Common Stock.
Very truly yours,



MOELIS & COMPANY LLC


B-3

ANNEX C

BRG Valuation Services, LLC
550 South Hope Street | Suite 2150
Los Angeles, CA 90071
O 213.261.7710
F 213.622.0390
 
BRGLOGOA01.JPG
April 29, 2018

Board of Directors of
Alpha Natural Resources Holdings, Inc.
c/o Alpha Natural Resources Holdings, Inc.
300 Running Right Way
Julian, WV 25529


Greetings:
BRG Valuation Services, LLC (“BRG”) understands that Alpha Natural Resources Holdings, Inc. (“Holdings”), ANR, Inc. (“ANR”), Contura Energy, Inc. (“Contura”), Prime Acquisition I, Inc., a wholly-owned subsidiary of Contura (“MergerSub1”), and Prime Acquisition II, Inc., a wholly-owned subsidiary of MergerSub1 (“MergerSub2”), are contemplating merger transactions whereby (a) MergerSub1 will be merged with and into Holdings (the “Holdings Merger”) and as a result the separate corporate existence of MergerSub1 shall cease and Holdings shall continue as the surviving corporation of the Holdings Merger and as a wholly-owned subsidiary of Contura, and (b) immediately following the effectiveness of the Holdings Merger, MergerSub2 shall be merged with and into ANR (the “ANR Merger”) and as a result the separate corporate existence of MergerSub2 shall cease and ANR shall continue as the surviving corporation of the ANR Merger and as a wholly-owned subsidiary of Holdings. In connection with and pursuant to the terms of (i) the Holdings Merger, among other things, it is contemplated that each outstanding share of Holdings common stock (“Holdings Common Stock”), other than certain shares to be cancelled or subject to appraisal rights, will be converted into the right to receive a number of fully-paid and nonassessable shares of Contura common stock (“Contura Common Stock”) equal to 0.4071 (the “Exchange Ratio”) and (ii) the ANR Merger, among other things, (A) it is contemplated that each outstanding share of ANR Class C-1 Common Stock, other than certain shares to be cancelled or subject to appraisal rights, will be converted into the right to receive a number of fully-paid and nonassessable shares of Contura Common Stock equal to the Exchange Ratio, and (B) each outstanding share of ANR Class C-2 Common Stock shall be automatically cancelled and shall cease to exist and no consideration shall be delivered in exchange therefor. The Holdings Merger and the ANR Merger are together referred to herein as the “Transaction.”
Holdings’ Board of Directors (the “Holdings Board”) has requested that BRG render to it a written opinion (the “Opinion”) as to the fairness, from a financial point of view, of the Exchange Ratio to the holders of the Holdings Common Stock (the “Opinion”). We have not been requested to, and did not solicit, third party indications of interest in acquiring all or any part of Holdings or ANR. Furthermore, at your request, we have not negotiated the Transaction or advised you with respect to alternatives to it.
In connection with the Opinion, we have made such reviews, analyses and inquiries as we have deemed necessary and appropriate under the circumstances. Among other things, we have:
1.
reviewed audited financial statements for ANR for the period from July 26, 2016 through December 31, 2016 and for the fiscal year ended December 31, 2017 (the “ANR Financial Statements”);
2.
reviewed audited financial statements for Contura for the period from July 26, 2016 to December 31, 2016 and for the fiscal year ended December 31, 2017;

C-1

The Board of Directors of
Alpha Natural Resources Holdings, Inc.
April 29, 2018


3.
reviewed certain financial forecasts and other information and data relating to ANR which were provided to and discussed with BRG by the management of ANR, including financial forecasts relating to ANR prepared by ANR management;
4.
reviewed certain financial forecasts and other information and data relating to Contura which were provided to and discussed with BRG by the management of Contura, including financial forecasts relating to Contura prepared by Contura management;
5.
reviewed a presentation entitled “ANR Financial Forecast and Assumptions” dated March 2018;
6.
reviewed the draft Agreement and Plan of Merger dated April 28, 2018, by and among Contura, ANR, Holdings, MergerSub1 and Merger Sub2;
7.
reviewed documents related to ANR’s background, including:
a.
the Amended and Restated Contingent Revenue Payment Agreement dated June 14, 2017;
b.
the Membership Interest and Asset Purchase Agreement in connection with the Lexington Coal Company, LLC transaction;
c.
the Second Amended Joint Plan of Reorganization dated May 27, 2016;
d.
the Form 8937 for ANR and Holdings; and
e.
the presentation entitled “Introduction Discussion Materials” dated April 2018;
8.
reviewed documents related to Contura’s background, including;
a.
Form S-1 Registration Statement as filed with the Securities and Exchange Commission on May 8, 2017; and
b.
The presentation entitled “Company Overview” dated April 2018;
9.
held discussions with certain senior officers, directors and other representatives and advisors of ANR, Holdings and Contura concerning the businesses, operations and prospects of ANR and Contura, including in respect of certain tax benefit projections;
10.
reviewed certain publicly available business and financial information relating to Holdings, ANR, and Contura;
11.
analyzed certain financial, stock market and other publicly available information relating to the businesses of other companies whose operations BRG considered relevant in evaluating those of ANR and Contura;
12.
considered, to the extent publicly available, the financial terms of certain other M&A transactions which BRG considered relevant in evaluating the Transaction; and
13.
conducted such other analyses and examinations and considered such other information and financial, economic and market criteria as BRG deemed to be appropriate in arriving at its opinion.
We have relied upon and assumed, without independent verification, the accuracy and completeness of all information that was furnished to or discussed with us by Holdings, ANR, Contura or otherwise reviewed by or for us. We have not made or been provided with any physical inspection or independent appraisal of any of the properties, liabilities or assets of Holdings, ANR or Contura. Management of Holdings, ANR and Contura have advised us, and we have relied upon and assumed, without independent verification, that the financial forecasts and projections provided to us have been reasonably prepared in good faith and reflect the best currently available estimates of the future financial results and condition of Holdings, ANR and Contura; that there has been no change in the assets, liabilities, financial condition, results of operations, cash flows, business or prospects of Holdings, ANR and Contura since the respective dates of the most recent financial statements and other information made available to us; and that there is no information or any facts that would make any of the information reviewed by us incomplete or misleading in any material respect. We express no opinion with respect to the financial

C-2

The Board of Directors of
Alpha Natural Resources Holdings, Inc.
April 29, 2018


forecasts or the assumptions on which they are based. Management of Holdings has further advised us that Holdings does not have financial statements, that Holdings’ only asset is its shares of ANR Class C-2 Common Stock and that Holdings has no liabilities. Therefore, we have assumed for purposes of our Opinion that the ANR Financial Statements are representative of Holdings’ financial condition.
We have relied upon and assumed, without independent verification, that (a) the representations and warranties of all parties to the agreements, documents and instruments identified in items 6 and 7 above and all other related documents and instruments that are referred to therein are true and correct, (b) each party to all such agreements and other related documents and instruments will fully and timely perform all of the covenants and agreements required to be performed by such party, (c) all conditions to the consummation of the Transaction will be satisfied without waiver thereof, and (d) the Transaction will be consummated in a timely manner in accordance with the terms described in all such agreements and other related documents and instruments, without any amendments or modifications thereto. We have also assumed, with the consent of Holdings, that the Transaction will qualify as a tax-free reorganization. We have relied upon and assumed, without independent verification, that (i) the Transaction will be consummated in a manner that complies in all respects with all applicable federal and state statutes, rules and regulations, and (ii) all governmental, regulatory, and other consents and approvals necessary for the consummation of the Transaction will be obtained and that no delay, limitations, restrictions or conditions will be imposed or amendments, modifications or waivers made that would have an effect on the Transaction, Holdings or ANR that would be material to our analyses or this opinion. In addition, we have relied upon and assumed, without independent verification, that the final forms of any draft documents identified above will not differ in any respect from the drafts of said documents.
The Opinion does not consider, and should not be interpreted to consider, whether the terms offered in the Transaction represent the best terms attainable.
The Opinion is necessarily based on business, economic, market and other conditions as they exist and can be evaluated by us at the date of this letter. Subsequent developments may affect the Opinion, however, and we do not have any obligation to update, revise, reaffirm or withdraw the Opinion. We are not expressing any opinion as to what the value of the Contura Common Stock actually will be when issued pursuant to the Transaction or the price or range of prices at which the Contura Common Stock may be purchased or sold, or otherwise be transferable, at any time. The Opinion is limited to the fairness, from a financial point of view, in the aggregate, of the financial terms of the Holdings Exchange Ratio in the Transaction and we express no opinion with respect to (i) the underlying business decision of the Holdings Board, Holdings, its security holders or any other party to proceed with or effect the Transaction, (ii) the legal (as opposed to business) terms of any arrangements, understandings, agreements or documents related to, or the form of, the Transaction or otherwise (other than to the extent expressly specified in the Opinion), (iii) the fairness of the Transaction not expressly addressed in the Opinion, (iv) the fairness of the Transaction to any party other than as set forth in the Opinion, (v) the relative merits of the Transaction as compared to any alternative business strategies that might exist for Holdings or any other party or the effect of any other transaction in which Holdings or any other party might engage, (vi) the tax consequences of the Transaction to either Holdings, its security holders, or any other party, (vii) the solvency or fair value of Holdings or any other participant in the Transaction, under any applicable laws relating to bankruptcy, insolvency, fraudulent conveyance or similar matters, (viii) the fairness of the Transaction to any one class of Holdings’ or any other party’s security holders vis-à-vis any other class of Holdings’ or such other party’s security holders, (ix) the appropriate capital structure of Contura or whether Holdings should pursue the Transaction, (x) how the Holdings Board, any of Holdings’ security holders or any other party should act or vote with respect to the Transaction, (xi) whether Holdings, its security holders or any other party is paying or receiving reasonably equivalent value in the Transaction, (xii) the fairness, financial or otherwise, of the amount, nature or any other aspect of any compensation to or consideration payable to or received by any officers, directors or employees of any party to the Transaction, any class of such persons or any other party, and (xiii) the dilutive or other similar effects of the Transaction on the existing security holders of Holdings. No opinion, counsel or interpretation is intended in matters that require legal, regulatory, accounting, insurance, tax or other similar professional advice. It is assumed that such opinions, counsel or interpretations have been or will be obtained from the appropriate professional sources. Furthermore, we have relied, with the consent of the Holdings Board, on the assessments by Holdings, ANR, Contura and their respective advisors, as to all legal, regulatory, accounting, insurance and tax matters with respect to Holdings and the Transaction or otherwise.
We will receive a fee from Holdings for rendering the Opinion, for which payment is not contingent on either the conclusions expressed in the Opinion or the consummation of the Transaction. In addition, Holdings has agreed to reimburse certain of our expenses and to indemnify us for certain potential liabilities arising out of our engagement. During the two years

C-3

The Board of Directors of
Alpha Natural Resources Holdings, Inc.
April 29, 2018


preceding the date of this letter, we have provided financial advisory services to Holdings and ANR in connection with share reclassification transactions effected by Holdings and ANR in February, 2018. BRG may provide financial advisory services to parties in the Transaction in the future, for which BRG may receive compensation.
The issuance of the Opinion has been approved by a fairness opinion committee of BRG. This letter is provided to the Holdings Board (in its capacity as such) in connection with the Transaction and may not be used for any other purpose without our prior written consent. The Opinion should not be construed as creating any fiduciary duty on BRG’s part to any party. The Opinion may not be disclosed, reproduced, disseminated, quoted, summarized, referred to, or communicated (in whole or in part) to any third party for any purpose whatsoever except with our prior written approval. Notwithstanding the foregoing, the Opinion may be included in its entirety in any proxy statement or prospectus distributed to stockholders of ANR and Holdings, or registration statement filed by Contura, in connection with the Transaction or in any other document required by law or regulation to be filed with the U.S. Securities and Exchange Commission in connection therewith, and ANR, Holdings and Contura may summarize or otherwise reference the existence of the Opinion in such documents; provided that any such summary or reference language will be subject to our prior approval (not to be unreasonably withheld).
Based upon and subject to the foregoing, and in reliance thereon, it is our opinion that, as of the date hereof, the Exchange Ratio is fair, from a financial point of view, to the holders of the Holdings Common Stock.

BRG VALUATION SERVICES, LLC
BRGSIGA01.JPG

C-4

ANNEX D

DUCERA.JPG
 
Ducera Securities LLC
 
499 Park Avenue
 
16th Floor
 
New York, NY 10022
 
 
 
 
 
 
 
 
 
p (212) 671-9700
 
 
April 29, 2018
 
 
 
 
 
 
DuceraPartners.com
The Board of Directors of
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd.
Bristol, TN 37620
Members of the Board of Directors:
We understand that Contura Energy, Inc., a Delaware corporation (the “ Company ”), proposes to enter into an Agreement and Plan of Merger (the “ Agreement ”), by and between ANR, Inc., a Delaware corporation (“ ANR ”), Alpha Natural Resources Holdings, Inc., a Delaware corporation (“ Holdings ”), the Company, Prime Acquisition I, Inc., a Delaware corporation and wholly owned Subsidiary of the Company (“ MergerSub 1 ”), and Prime Acquisition II, Inc., a Delaware corporation and wholly owned Subsidiary of MergerSub 1 (“ MergerSub 2 ”). Pursuant to the Agreement, (i) MergerSub 1 will merge with and into Holdings (the “ Holdings Merger ”), with Holdings being the surviving corporation in the Holdings Merger, and immediately thereafter (ii) MergerSub 2 will merge with and into ANR (the “ ANR Merger ” and, together with the Holdings Merger, the “ Mergers ”), with ANR being the surviving corporation in the ANR Merger. As a result of the Holdings Merger, each share of Holdings common stock, par value $0.01 per share (“ Holdings Common Stock ”), issued and outstanding immediately prior to the effective time of the Holdings Merger (other than shares to be cancelled in accordance with Section 1.05(a)(ii) of the Agreement, and as provided in Section 1.07 of the Agreement with respect to Appraisal Shares (as such term is defined in the Agreement)), shall be converted into the right to receive that number of fully paid and nonassessable shares of common stock, par value $0.01 per share, of the Company (the “ Company Common Stock ”), equal to 0.4071 (the “ Exchange Ratio ”). As a result of the ANR Merger, each share of ANR Class C-1 common stock, par value $0.01 per share (“ ANR Class C-1 Common Stock ”), issued and outstanding immediately prior to the effective time of the ANR Merger (other than shares to be cancelled in accordance with Section 1.05(b)(ii) of the Agreement, and as provided in Section 1.07 of the Agreement with respect to Appraisal Shares), shall be converted into the right to receive that number of fully paid and nonassessable shares of Company Common Stock, equal to the Exchange Ratio.
The terms and conditions of the Mergers are more fully set forth in the Agreement. Capitalized terms used herein and not defined shall have the meanings ascribed thereto in the Agreement.
The Board of Directors of the Company has requested our opinion as to the fairness of the Exchange Ratio, from a financial point of view, to the Company, as of the date hereof.
For purposes of the opinion set forth herein, we have, among other things:
(i) reviewed a draft of the Agreement dated as of April 27, 2018;
(ii) reviewed certain publicly available financial statements and other business and financial information relating to the Company, ANR and Holdings which we believed to be relevant, including publicly available research analysts’ reports;
(iii) reviewed certain non-public historical financial statements and other non-public historical financial and operating data relating to the Company prepared and furnished to us by management of the Company;
(iv) reviewed certain non-public historical financial statements and other non-public historical financial and operating data relating to ANR prepared by ANR and furnished to us by management of the Company;

DUCERA SECURITIES LLC | 499 PARK AVENUE, 16TH FLOOR, NEW YORK, NY, 10022 | TEL: (212) 671-9700
D- 1


Letter to the Board of Directors of Contura Energy, Inc.
April 29, 2018
Page 2

(v) reviewed certain non-public historical financial statements and other non-public historical financial and operating data relating to Holdings prepared by ANR and furnished to us by management of the Company;
(vi) reviewed certain non-public projected financial data relating to the Company prepared and furnished to us by management of the Company;
(vii) reviewed certain non-public projected financial data relating to ANR prepared by ANR and furnished to us by management of the Company;
(viii) reviewed and discussed the past and current business, operations, current financial condition and financial projections of the Company and ANR with management of the Company (including their views on the amounts, timing, risks, achievability and uncertainties of attaining such projections);
(ix) reviewed the reported prices and the historical trading activity of the Company Common Stock and ANR Class C-1 Common Stock and compared such prices with those of securities of certain publicly traded companies which we believed to be relevant;
(x) reviewed certain non-public estimates of tax refunds allocable to ANR based on analysis and information furnished to us by management of the Company;
(xi) compared the financial performance of the Company and ANR and their respective stock market trading multiples with those of certain other publicly traded companies which we believed to be relevant;
(xii) reviewed estimates of synergies anticipated by the Company management to result from the Mergers; and
(xiii) performed such other studies, analyses and examinations and considered such other factors which we believed to be appropriate.
In arriving at our opinion, we have assumed and relied upon, without undertaking any independent verification of, the accuracy and completeness of all of the financial and other information supplied or otherwise made available to, discussed with, or reviewed by us (including information that is available from generally recognized public sources), and we assume no liability therefor. We have further assumed, with your consent, that all of the information furnished by management of the Company for purposes of our analysis is accurate as of the date hereof (except to the extent superseded by other information provided prior to the date hereof) and does not contain any material omissions or misstatement of material facts. With respect to the projected financial data relating to the Company and ANR referred to above, we have assumed, with your consent, that they have been reasonably prepared on bases reflecting the best currently available estimates and good faith judgments of management of the Company and ANR, respectively, as to the future financial performance of the Company and ANR, respectively. We express no view as to any projected financial data relating to the Company or ANR, or the assumptions on which they are based.
For purposes of rendering our opinion, we have assumed, in all respects material to our analysis, that the final executed Agreement will not differ from the draft Agreement reviewed by us, and that all conditions to the consummation of the Mergers will be satisfied without material waiver, modification or delay. We have further assumed that all governmental, regulatory or other consents, approvals or releases necessary for the consummation of the Mergers will be obtained without any material delay, limitation, restriction or condition that would have an adverse effect on the Company or the consummation of the Mergers.
We have not made, nor assumed any responsibility for making, any independent valuation or appraisal of the assets or liabilities (including any contingent, derivative or off-balance-sheet assets and liabilities) of the Company, nor have we been furnished with any such valuations or appraisals, nor have we evaluated the solvency or fair value of the Company under any state or federal laws relating to bankruptcy, insolvency or similar matters. Our opinion is necessarily based upon information made available to us as of the date hereof and financial, economic, market and other conditions as they exist and as can be evaluated on the date hereof.

D- 2

Letter to the Board of Directors of Contura Energy, Inc.
April 29, 2018
Page 3

We have not been asked to pass upon, and express no opinion with respect to, any matter other than the fairness of the Exchange Ratio, from a financial point of view, to the Company, as of the date hereof. We have not been asked to express, and we do not express any view on, and our opinion does not address, the fairness of the proposed transaction to, or any consideration received in connection therewith by, the holders of any securities, creditors or other constituencies of the Company, nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of the Company, or any class of such persons, whether relative to the Exchange Ratio or otherwise, nor as to the fairness of any other term of the Agreement. Our opinion does not address the relative merits of the Mergers as compared to other business or financial strategies that might be available to the Company, nor does it address the underlying business decision of the Company to engage in the Mergers. We were not authorized to solicit, and did not solicit, interest from any third party with respect to the acquisition of any or all Company Common Stock or any business combination or other extraordinary transaction involving the Company. This letter, and our opinion, does not constitute a recommendation to the Board of Directors of the Company or to any other persons in respect of the Mergers, including as to how any holder of shares of Company Common Stock should vote or act in respect of the Mergers. We express no opinion as to the price at which shares of Company Common Stock will trade at any time. We have not been asked to pass upon, and express no opinion with respect to, any tax or other consequences that may result from the Mergers. We are not legal, regulatory, accounting or tax experts and have assumed the accuracy and completeness of assessments by the Company and its advisors with respect to legal, regulatory, accounting and tax matters.
We have acted as financial advisor to the Board of Directors of the Company in connection with the Mergers and will be entitled to receive a fee for our services upon the rendering of this opinion. We will also be entitled to receive a transaction fee if the Mergers are consummated. The Company has also agreed to reimburse our expenses and to indemnify us against certain liabilities arising out of our engagement. Prior to this engagement, we and our affiliates (“ Ducera ”) provided financial advisory services to the Company. During the two year period prior to the date hereof, Ducera performed investment banking services for Alpha Natural Resources, Inc., the predecessor in interest to Holdings and ANR, pursuant to which compensation was received by Ducera. We may provide financial or other services to the Company, ANR or Holdings or their respective affiliates in the future and in connection with any such services we may receive compensation.
In the ordinary course of business, Ducera provides investment banking and other advisory services to a wide range of entities and individuals, domestically and internationally, from which conflicting interests or duties may arise. In the ordinary course of such activities, Ducera may actively trade or otherwise effect transactions, for its own account and for the accounts of its clients, in debt or equity securities, or related derivative securities, or financial instruments (including bank loans or other obligations) of the Company, ANR or Holdings or their respective affiliates, and accordingly Ducera may at any time hold a long or short position in such securities or instruments.
This letter, and the opinion expressed herein, is addressed to, and for the information and assistance of, the Board of Directors of the Company in connection with its evaluation of the proposed Mergers. The issuance of this opinion has been approved by the fairness opinion committee of Ducera Securities LLC in accordance with the procedures for opinions as to fairness of Ducera Securities LLC.
This opinion may not be disclosed, quoted, referred to or communicated (in whole or in part) to any third party for any purpose whatsoever except with our prior written approval, provided , however , that the Company may reproduce this opinion in full in any document that is required to be filed with the U.S. Securities and Exchange Commission, a final version of which is required to be provided by the Company to its stockholders relating to the Mergers; and provided , further , that all references to us or our opinion in any such document and the description of our opinion therein shall be subject to our prior consent with respect to form and substance (such consent not to be unreasonably withheld or delayed).

D- 3

Letter to the Board of Directors of Contura Energy, Inc.
April 29, 2018
Page 4

Our opinion is necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to us as of, the date hereof. It should be understood that subsequent developments may affect this opinion and the assumptions used in preparing it, and we do not have any obligation to update, revise, or reaffirm this opinion.
Based upon and subject to the foregoing, we are of the opinion that, as of the date hereof, the Exchange Ratio is fair, from a financial point of view, to the Company.
Very truly yours,
 
DUCERA SECURITIES LLC
 
 
Name: Michael A. Kramer
Title: Chief Executive Officer


D- 4

ANNEX E


SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW
§ 262 Appraisal Rights.
(a)      Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholder’s shares of stock under the circumstances described in subsections (b) and (c) of this section. As used in this section, the word “stockholder” means a holder of record of stock in a corporation; the words “stock” and “share” mean and include what is ordinarily meant by those words; and the words “depository receipt” mean a receipt or other instrument issued by a depository representing an interest in 1 or more shares, or fractions thereof, solely of stock of a corporation, which stock is deposited with the depository.
(b)      Appraisal rights shall be available for the shares of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to § 251 (other than a merger effected pursuant to § 251(g) of this title and, subject to paragraph (b)(3) of this section, § 251(h) of this title), § 252, § 254, § 255, § 256, § 257, § 258, § 263 or § 264 of this title:
(1)
Provided, however, that, except as expressly provided in § 363(b) of this title, no appraisal rights under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders entitled to receive notice of the meeting of stockholders to act upon the agreement of merger or consolidation, were either: (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in § 251(f) of this title.
(2)
Notwithstanding paragraph (b)(1) of this section, appraisal rights under this section shall be available for the shares of any class or series of stock of a constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252, 254, 255, 256, 257, 258, 263 and 264 of this title to accept for such stock anything except:
a.
Shares of stock of the corporation surviving or resulting from such merger or consolidation, or depository receipts in respect thereof;
b.
Shares of stock of any other corporation, or depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts at the effective date of the merger or consolidation will be either listed on a national securities exchange or held of record by more than 2,000 holders;
c.
Cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a. and b. of this section; or
d.
Any combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a., b. and c. of this section.
(3)
In the event all of the stock of a subsidiary Delaware corporation party to a merger effected under § 251(h), § 253 or § 267 of this title is not owned by the parent immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation.
(4)
In the event of an amendment to a corporation’s certificate of incorporation contemplated by § 363(a) of this title, appraisal rights shall be available as contemplated by § 363(b) of this title, and the procedures of this section, including those set forth in subsections (d) and (e) of this section, shall apply as nearly as practicable, with the word “amendment” substituted for the words “merger or consolidation,” and the word “corporation” substituted for the words “constituent corporation” and/or “surviving or resulting corporation.”

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(c)      Any corporation may provide in its certificate of incorporation that appraisal rights under this section shall be available for the shares of any class or series of its stock as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or substantially all of the assets of the corporation. If the certificate of incorporation contains such a provision, the procedures of this section, including those set forth in subsections (d) and (e) of this section, shall apply as nearly as is practicable.
(d)      Appraisal rights shall be perfected as follows:
(1)
If a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of such meeting (or such members who received notice in accordance with § 255(c) of this title) with respect to shares for which appraisal rights are available pursuant to subsection (b) or (c) of this section that appraisal rights are available for any or all of the shares of the constituent corporations, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Each stockholder electing to demand the appraisal of such stockholder’s shares shall deliver to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholder’s shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholder’s shares. A proxy or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or
(2)
If the merger or consolidation was approved pursuant to § 228, § 251(h), § 253, or § 267 of this title, then either a constituent corporation before the effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of mailing of such notice or, in the case of a merger approved pursuant to § 251(h) of this title, within the later of the consummation of the tender or exchange offer contemplated by § 251(h) of this title and 20 days after the date of mailing of such notice, demand in writing from the surviving or resulting corporation the appraisal of such holder’s shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holder’s shares. If such notice did not notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice or, in the case of a merger approved pursuant to § 251(h) of this title, later than the later of the consummation of the tender or exchange offer contemplated by § 251(h) of this title and 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holder’s shares in accordance with this subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation that is required to give either notice that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of determining the stockholders entitled to receive either notice, each constituent corporation may fix, in advance, a record date that shall be not more than 10 days prior to the date the notice is given, provided, that if the notice is given on or after the effective date of the merger or consolidation, the record date shall be such

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effective date. If no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the day on which the notice is given.
(e)      Within 120 days after the effective date of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) of this section hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholder’s demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) of this section hereof, upon written request, shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such written statement shall be mailed to the stockholder within 10 days after such stockholder’s written request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the period for delivery of demands for appraisal under subsection (d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such person’s own name, file a petition or request from the corporation the statement described in this subsection.
(f)      Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within 20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation.
(g)      At the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder.
(h)      After the Court determines the stockholders entitled to an appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of the shares exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. Unless the Court in its discretion determines otherwise for good cause shown, interest from the effective date of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholder’s certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights under this section.
(i)      The Court shall direct the payment of the fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled thereto. Payment shall be so made to each such stockholder, in the case of

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holders of uncertificated stock forthwith, and the case of holders of shares represented by certificates upon the surrender to the corporation of the certificates representing such stock. The Court’s decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or resulting corporation be a corporation of this State or of any state.
(j)      The costs of the proceeding may be determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorney’s fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal.
(k)      From and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholder’s demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just; provided, however that this provision shall not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder’s demand for appraisal and to accept the terms offered upon the merger or consolidation within 60 days after the effective date of the merger or consolidation, as set forth in subsection (e) of this section.
(l)      The shares of the surviving or resulting corporation to which the shares of such objecting stockholders would have been converted had they assented to the merger or consolidation shall have the status of authorized and unissued shares of the surviving or resulting corporation.


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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20.
Indemnification of Directors and Officers
Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the registrant. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Section 8(a) of the registrant’s Amended and Restated Certificate of Incorporation provides for indemnification by the registrant of its directors, officers and employees to the fullest extent permitted by the DGCL. The registrant has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the registrant’s amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the registrant for which indemnification is sought.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The registrant’s Certificate of Incorporation provides for such limitation of liability.
The registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the registrant with respect to payments which may be made by the registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.
Item 21.    Exhibits and Financial Statement Schedules
Exhibit No.
Description of Exhibit
2.1*
Agreement and Plan of Merger, dated as of April 29, 2018, by and among Contura Energy, Inc., Alpha Natural Resources Holdings, Inc., ANR, Inc., Prime Acquisition I, Inc. and Prime Acquisition II, Inc.
2.2*
Asset Purchase Agreement, dated as of December 7, 2017, by among Blackjewel L.L.C., as purchaser, and Contura Coal West, LLC, Contura Wyoming Land, LLC and Contura Coal Sales, LLC, as seller
2.3*
Form of Permit Operating Agreement, dated as of December 7, 2017, by among Contura Coal West, LLC, as Transferor and Blackjewel L.L.C., as Transferee (included as Exhibit E to the Asset Purchase Agreement)
2.4*
Form of Royalty Agreement, dated as of December 7, 2017, by among Blackjewel L.L.C., as purchaser, and Contura Coal West, LLC and Contura Wyoming Land, LLC, as seller (included as Exhibit G to the Asset Purchase Agreement)
2.5*
Asset Purchase Agreement, dated July 26, 2016, among Contura Energy, Inc., Alpha Natural Resources, Inc., certain subsidiaries of Alpha Natural Resources, Inc., ANR, Inc. and Alpha Natural Resources, Inc., as sellers’ representative
3.1*
Form of Amended and Restated Certificate of Incorporation of Contura Energy, Inc.
3.2*
Form of Amended and Restated Bylaws of Contura Energy, Inc.
4.1*
Specimen Certificate for shares of Common Stock
5.1*
Opinion of Davis Polk & Wardwell LLP

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Exhibit No.
Description of Exhibit
8.1*
Opinion of Davis Polk & Wardwell LLP regarding tax matters
10.1*
Credit Agreement dated as of March 17, 2017 among Contura Energy, Inc. as Borrower, Jefferies Finance LLC, as Administrative Agent and Collateral Agent, and the Other Lenders Party Thereto (Jefferies Finance LLC, BMO Capital Markets Corp., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as Joint Lead Arrangers and Joint Bookrunners)
10.2*
First Amendment to Credit Agreement, dated as of June 13, 2017, to the Credit Agreement, dated as of March 17, 2017 among Contura Energy, Inc. as Borrower, Jefferies Finance LLC, as Administrative Agent and Collateral Agent, and the Other Lenders Party Thereto
10.3*
Asset-Based Revolving Credit Agreement dated as of April 3, 2017 among Contura Energy, Inc., and certain of its Subsidiaries, as the Borrowers; the Guarantors Party Thereto; Citibank, N.A., as Administrative Agent; Citibank, N.A., as Swingline Lender; Citibank, N.A., BMO Harris Bank N.A. and Credit Suisse AG, Cayman Islands Branch, as L/C Issuers; the Other Lenders Party Thereto and Citigroup Global Markets Inc., BMO Capital Markets Corp. and Credit Suisse Securities (USA) LLC, as Joint Lead Arrangers and Joint Bookrunners
10.4*
First Amendment to Asset-Based Revolving Credit Agreement, dated as of June 9, 2017, to the Asset-Based Revolving Credit Agreement dated as of April 3, 2017 among Contura Energy, Inc., and certain of its Subsidiaries, as the Borrowers; the Guarantors Party Thereto; Citibank, N.A., as Administrative Agent; Citibank, N.A., as Swingline Lender; Citibank, N.A., BMO Harris Bank N.A. and Credit Suisse AG, Cayman Islands Branch, as L/C Issuers; the Other Lenders Party Thereto and Citigroup Global Markets Inc., BMO Capital Markets Corp. and Credit Suisse Securities (USA) LLC, as Joint Lead Arrangers and Joint Bookrunners
10.5*
Loan Agreement dated as of July 26, 2016 by and between ANR, Inc. as Borrower; the Guarantors Party Thereto and Contura Energy, Inc. as Lender
10.6*
Registration Rights Agreement, dated as of July 26, 2016, by and among Contura Energy, Inc. and the holders party thereto
10.7*
Amendment No. 1 to the Registration Rights Agreement, dated as of February 24, 2017, by and among Contura Energy, Inc. and the holders party thereto
10.8*
Amendment No. 2 to the Registration Rights Agreement, dated as of October 10, 2017, by and among Contura Energy, Inc. and the holders party thereto
10.9*
Amendment No. 3 to the Registration Rights Agreement, dated as of June 1, 2018, by and among Contura Energy, Inc. and the holders party thereto
10.10*
Settlement Agreement, dated November 3, 2016 but effective only as of the Settlement Effective Time, by and among Contura Energy, Inc., for itself and on behalf of certain of its subsidiaries; ANR, Inc., for itself and on behalf of certain of its affiliates and Old ANR, Inc. (f/k/a Alpha Natural Resources, Inc.) on behalf of itself and on behalf of all of the sellers in its capacity as sellers’ representative
10.11*
Reclamation Funding Agreement, dated July 12, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc.; the Illinois Department of Natural Resources; the Kentucky Energy and Environment Cabinet, Department for Natural Resources; the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee; the Virginia Department of Mines, Minerals and Energy and the West Virginia Department of Environmental Protection
10.12*
Amended Reclamation Funding Agreement dated October 23, 2017, by and among ANR, Lexington Coal Company, LLC, Contura, the Illinois Department of Natural Resources, the Kentucky Energy and Environment Cabinet Department for Natural Resources, the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement (in its capacity as the regulatory authority over surface mining operations in the State of Tennessee), the Virginia Department of Mines, Minerals and Energy and the WVDEP.
10.13*
Settlement Agreement, dated July 12, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc.; Citicorp North America, Inc. and the United States Department of the Interior, on behalf of the Office of Surface Mining, Reclamation and Enforcement, including in its capacity as the regulatory authority over surface mining operations in the State of Tennessee, the Office of Natural Resources Revenue and the Bureau of Land Management

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Exhibit No.
Description of Exhibit
10.14*
Permitting and Reclamation Plan Settlement Agreement for the Commonwealth of Kentucky, dated July 12, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc. and the Kentucky Energy and Environment Cabinet, Department for Natural Resources
10.15*
Termination Agreement dated October 23, 2017, by and among Alpha Natural Resources, on behalf of itself and its affiliates, Contura Energy, Inc. and the Kentucky Energy and Environmental Cabinet, Department for Natural Resources
10.16*
Permitting and Reclamation Plan Settlement Agreement for the State of Illinois, dated July 12, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc. and the Illinois Department of Natural Resources
10.17*
First Amendment to Permitting and Reclamation Plan Settlement Agreement for the State of Illinois by and among Alpha Natural Resources, Inc., on behalf of itself and its affiliates, Contura and Illinois Department of Natural Resources.
10.18*
Permitting and Reclamation Plan Settlement Agreement for the Commonwealth of Virginia, dated July 12, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc. and the Commonwealth of Virginia, Department of Mines, Minerals and Energy
10.19*
First Amendment to Permitting and Reclamation Plan Settlement Agreement for the Commonwealth of Virginia dated October 23, 2017, by and among ANR, on behalf of itself and its affiliates, including Old ANR, LLC (f/k/a Alpha Natural Resources, Inc.), Contura and the Virginia Department of Mines, Minerals and Energy.
10.20*
Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia, dated July 12, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc. and the West Virginia Department of Environmental Protection
10.21*
First Amendment to Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia, dated July 25, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc. and the West Virginia Department of Environmental Protection
10.22*
Second Amendment to Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia, dated October 23, 2017, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc. and the West Virginia Department of Environmental Protection
10.23*
Stipulation Regarding Water Treatment Obligations, dated July 12, 2016, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; Contura Energy, Inc. and the United States
10.24*
Amended Stipulation Regarding Water Treatment Obligations, dated October 23, 2017, by and among Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates, Lexington Coal Company, LLC, Contura Energy, Inc. and the United States
10.25*
Stipulation and Agreed Order dated July 15, 2016 among Alpha Natural Resources, Inc., et   al. , as Debtors; Citicorp North America, as administrative and collateral agent; Contura Energy, Inc. and the Retiree Settlement Committee
10.26*
Stipulation and Agreed Order dated July 6, 2016 among Alpha Natural Resources, Inc., et   al. , as Debtors; Citicorp North America, as administrative and collateral agent; Contura Energy, Inc. and the UMWA Funds
10.27*
Agreement to Fund VEBA, dated July 5, 2016, by and among Contura Energy, Inc., on behalf of itself and as authorized agent for certain of its subsidiaries, and the United Mine Workers of America
10.28*
Form of Indemnification Agreement by and between Contura Energy, Inc. and each of its current and future directors and officers
10.29*
Warrant Agreement, dated July 26, 2016, between Contura Energy, Inc., Computershare, Inc. and Computershare Trust Company, N.A. (including Form of Warrant Certificate)
10.30*
Transition Services Agreement, dated July 26, 2016, between Contura Energy, Inc., Alpha Natural Resources, Inc. and ANR, Inc.
10.31*
First Amendment to Transition Services Agreement, dated August 26, 2016, to the Transition Services Agreement, dated July 26, 2016, between Contura Energy, Inc., Alpha Natural Resources, Inc. and ANR, Inc.

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Exhibit No.
Description of Exhibit
10.32*
Second Amendment to Transition Services Agreement, dated October 20, 2016, to the Transition Services Agreement, dated July 26, 2016, between Contura Energy, Inc., Alpha Natural Resources, Inc. and ANR, Inc.
10.33*
Third Amendment to Transition Services Agreement, dated February 22, 2017, to the Transition Services Agreement, dated July 26, 2016, between Contura Energy, Inc., Alpha Natural Resources, Inc. and ANR, Inc.
10.34*
Fourth Amendment to Transition Services Agreement, dated December 19, 2017, to the Transition Services Agreement, dated July 26, 2016, between Contura Energy, Inc., Alpha Natural Resources, Inc. and ANR, Inc.
10.35*†

Employment Agreement, dated July 26, 2016 by and between Contura Energy, Inc. and Kevin S. Crutchfield
10.36*†
Contura Energy, Inc. Management Incentive Plan, effective as of July 26, 2016
10.37*†
Amendment 1 to Contura Energy, Inc. Management Incentive Plan, dated as of January 18, 2017
10.38*†
Form of Contura Energy, Inc. Option Agreement
10.39*†
Form of Contura Energy, Inc. Restricted Share Agreement
10.40*†
Form of Contura Energy, Inc. Emergence Award Agreement
10.41*†
Contura Energy, Inc. Deferred Compensation Plan
10.42*†
Contura Energy, Inc. Annual Incentive Bonus Program
10.43*†
Contura Energy, Inc. Key Employee Separation Plan, effective as of July 26, 2016
10.44*†
Contura Energy, Inc. Amended and Restated Non-Employee Director Compensation Policy, dated December 14, 2017
10.45*†
Form of 2018 Long-Term Incentive Plan
21.1*
List of Subsidiaries of Contura Energy, Inc.
23.1*
Consent of KPMG LLP (Contura)
23.2*
Consent of KPMG LLP (ANR)
23.3*
Consent of KPMG LLP (Holdings)
23.4*
Consent of Marshall Miller & Associates, Inc.
23.5*
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
24.1
Power of Attorney (included on signature page to this Registration Statement)
99.1**
Form of Proxy Card to be used by holders of common stock of Alpha Natural Resources Holdings, Inc.
99.2**
Form of Proxy Card to be used by holders of common stock of ANR, Inc.
99.3*
Consent of Ducera Partners LLC
99.4*
Consent of Moelis & Company LLC
99.5*
Consent of BRG Valuation Services, LLC
99.6*
Consent of John E. Lushefski
99.7*
Consent of Daniel J. Geiger
99.8*
Consent of David J. Stetson
99.9*
Consent of Harvey L. Tepner
______________
* Filed herewith.
** To be filed by amendment.
† Management contract, compensatory plan or arrangement.

Item 22.    Undertakings
(a)    The undersigned registrant hereby undertakes:

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(1)    To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)    To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933.
(ii)    To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii)    To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2)    That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)    To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)    That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) (1)    The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(2)    The registrant undertakes that every prospectus: (i) that is filed pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)    Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 20 above, or otherwise, the

II-5


registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d)    The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

II-6


EXHIBITS
Exhibit No.
Description of Exhibit

II-7



II-8


99.1**
Form of Proxy Card to be used by holders of common stock of Alpha Natural Resources Holdings, Inc.
99.2**
Form of Proxy Card to be used by holders of common stock of ANR, Inc.

II-9


______________
* Filed herewith.
** To be filed by amendment.
† Management contract, compensatory plan or arrangement.


II-10


SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bristol, State of Tennessee on August 20, 2018.
CONTURA ENERGY, INC.
By:
/s/ Kevin S. Crutchfield
 
Name:   Kevin S. Crutchfield
 
Title:     Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Charles Andrew Eidson and Mark M. Manno, and each of them singly, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
Capacity
Date
/s/ Kevin S. Crutchfield
Chief Executive Officer and Director (Principal Executive Officer)
August 20, 2018
Kevin S. Crutchfield
/s/ Charles Andrew Eidson
Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
August 20, 2018
Charles Andrew Eidson
/s/ Neale X. Trangucci
Chairman
August 20, 2018
Neale X. Trangucci
/s/ Albert E. Ferrara, Jr.
Director
August 20, 2018
Albert E. Ferrara, Jr.
/s/ Anthony J. Orlando
Director
August 20, 2018
Anthony J. Orlando
/s/ Michael J. Ward
Director
August 20, 2018
Michael J. Ward


II-11

Exhibit 2.1
EXECUTION VERSION












AGREEMENT AND PLAN OF MERGER
BETWEEN
CONTURA ENERGY, INC.,
ALPHA NATURAL RESOURCES HOLDINGS, INC.,
ANR, INC.,
PRIME ACQUISITION I, INC.,
AND
PRIME ACQUISITION II, INC.
Dated as of April 29, 2018




TABLE OF CONTENTS
PAGE
 
ARTICLE 1
 
THE MERGER
 
 
 
Section 1.01.    The Mergers; Effects of the Mergers
9

Section 1.02.    Consummation of the Mergers
9

Section 1.03.    Certificate of Incorporation; Bylaws
10

Section 1.04.    Directors and Officers
10

Section 1.05.    Conversion of Shares
12

Section 1.06.    Fractional Shares
13

Section 1.07.    Appraisal Rights
13

Section 1.08.    Subsequent Actions
14

 
 
ARTICLE 2
 
EXCHANGE OF SHARES AND CERTIFICATES, EQUITY AWARDS
 
 
 
Section 2.01.    Exchange of Shares and Certificates; Procedures
14

Section 2.02.    Closing of Transfer Books
17

Section 2.03.    Treatment of ANR Stock Options
17

Section 2.04.    Adjustments
18

 
 
ARTICLE 3
 
REPRESENTATIONS AND WARRANTIES OF THE ALPHA PARTIES
 
 
 
Section 3.01.    Organization and Qualification
19

Section 3.02.    Capitalization
20

Section 3.03.    Authority for this Agreement; Board Action
22

Section 3.04.    Consents and Approvals; No Violation
24

Section 3.05.    Financial Statements
25

Section 3.06.    Absence of Certain Changes
26

Section 3.07.    Information Supplied; Joint Proxy Statement
26

Section 3.08.    Employee Benefits Matters
26

Section 3.09.    Employees
28

Section 3.10.    Litigation
30

Section 3.11.    Tax Matters
30

Section 3.12.    Compliance with Law
32

Section 3.13.    Permits; Surety Bonds
32

Section 3.14.    Environmental Matters
34

Section 3.15.    Intellectual Property
36

Section 3.16.    Real Property; Personal Property
37

Section 3.17.    Material Contracts
40

Section 3.18.    Insurance
42

Section 3.19.    Suppliers and Customers
43

Section 3.20.    Questionable Payments
43


i

Section 3.21.    Interested Party Agreements
43

Section 3.22.     Required Vote of Stockholders
43

Section 3.23.    Takeover Laws, Etc
44

Section 3.24.    Opinion of Financial Advisor
44

Section 3.25.    Brokers; Certain Fees
44

Section 3.26.    No Other Representations; Disclaimer
45

 
 
ARTICLE 4
 
REPRESENTATIONS AND WARRANTIES OF CONTURA
 
 
 
Section 4.01.    Organization and Qualification
46

Section 4.02.    Capitalization
46

Section 4.03.    Authority for this Agreement; Board Action
48

Section 4.04.    Consents and Approvals; No Violation
49

Section 4.05.    Reports; Financial Statements
50

Section 4.06.    Absence of Certain Changes
51

Section 4.07.    Information Supplied; Joint Proxy Statement
51

Section 4.08.    Employee Benefits Matters
51

Section 4.09.    Employees
53

Section 4.10.    Litigation
54

Section 4.11.    Tax Matters
55

Section 4.12.    Compliance with Law
56

Section 4.13.    Permits; Surety Bonds
56

Section 4.14.    Environmental Matters
58

Section 4.15.    Intellectual Property
59

Section 4.16.    Real Property; Personal Property
59

Section 4.17.    Material Contracts
62

Section 4.18.    Insurance
64

Section 4.19.    Suppliers and Customers
65

Section 4.20.    Questionable Payments
65

Section 4.21.    Interested Party Transactions
65

Section 4.22.    Required Vote of Contura Stockholders
65

Section 4.23.    Opinion of Financial Advisor
65

Section 4.24.    Brokers; Certain Fees
66

Section 4.25.    No Other Representations; Disclaimer
66

 
 
ARTICLE 5
 
COVENANTS
 
 
 
Section 5.01.    Interim Undertakings of the Alpha Parties
66

Section 5.02.    Interim Undertakings of Contura
71

Section 5.03.    Alpha No Solicitation
74

Section 5.04.    Preparation of SEC Documents; Listing
78

Section 5.05.    Stockholder Approvals
79

Section 5.06.    Access to Information
81

Section 5.07.    Commercially Reasonable Efforts; Consents and Governmental Approvals
82


ii

Section 5.08.    Indemnification and Insurance
84

Section 5.09.    Employee Matters
86

Section 5.10.    Takeover Laws
87

Section 5.11.    Notification of Certain Matters
87

Section 5.12.    Financing Assistance
88

Section 5.13.    Press Releases
89

Section 5.14.    Stockholder Litigation
89

Section 5.15.    No Control of Other Party’s Business
90

Section 5.16.    Section 280G Matters
90

Section 5.17.    Tax Matters
90

 
 
ARTICLE 6
 
CONDITIONS TO CONSUMMATION OF THE MERGER
 
 
 
Section 6.01.    Conditions to Each Party’s Obligation to Effect the Mergers
95

Section 6.02.    Conditions to Obligations of Contura
96

Section 6.03.    Conditions to Obligations of the Alpha Parties
97

 
 
ARTICLE 7
 
TERMINATION; AMENDMENT; WAIVER
 
 
 
Section 7.01.    Termination
98

Section 7.02.    Effect of Termination
100

Section 7.03.    Fees and Expenses
100

Section 7.04.    Amendment
102

Section 7.05.    Extension; Waiver; Remedies
102

 
 
ARTICLE 8
 
MISCELLANEOUS
 
 
 
Section 8.01.    Representations and Warranties
103

Section 8.02.    Entire Agreement; Assignment
103

Section 8.03.    Jurisdiction; Venue
103

Section 8.04.    Validity; Specific Performance
103

Section 8.05.    Notices
104

Section 8.06.    Governing Law
105

Section 8.07.    Descriptive Headings
105

Section 8.08.    Parties in Interest
105

Section 8.09.    Interpretation
106

Section 8.10.    Counterparts
106

Section 8.11.    Certain Definitions
106


iii

Glossary of Defined Terms
Defined Term
Section
2017 Equity Plan
3.02(c)
Affiliate
8.11
Agreement
Preamble
Alpha Acquisition Proposal
5.03(h)(i)
Alpha Board Recommendations
3.03(d)(iv)
Alpha Cap Ex Budget
5.01(p)(i)
Alpha Capital Stock
3.02(b)(ii)
Alpha Director
1.04(c)
Alpha Director Designee
1.04(a)
Alpha Disclosure Schedule
Article 3
Alpha Environmental Permits
3.14
Alpha Improvements
3.16(c)(iv)
Alpha Intellectual Property
3.15(a)
Alpha Interested Party Agreement
3.21
Alpha Leased Real Property
3.16(a)(ii)
Alpha Lease
3.16(a)(ii)
Alpha Material Adverse Effect
8.11
Alpha Material Contract
3.17(a)(xiv)
Alpha New Acquisition
5.01(c)(ii)
Alpha New Acquisitions
5.01(c)(ii)
Alpha Notice Period
5.03(d)(A)
Alpha Owned Intellectual Property
3.15(b)(i)
Alpha Owned Real Property
3.16(a)(i)
Alpha Parties
Preamble
Alpha Party Shareholder
5.17(d)(ii)
Alpha Permit Applications
3.13(c)(i)
Alpha Permits
3.13(a)(i)
Alpha Real Property
3.16(a)(iii)
Alpha Securities
3.02(d)(iii)
Alpha Service Provider
3.08(h)
Alpha Special Meetings
5.05(a)
Alpha Stockholder Approvals
3.22(b)
Alpha Subsidiary Securities
3.02(e)(iii)
Alpha Superior Proposal
5.03(h)(ii)
Alpha Surety Bonds
3.13(d)
ANR
Preamble
ANR Board
3.03(c)
ANR Board Recommendation
3.03(d)(iv)
ANR Bylaws
3.01(b)
ANR Certificate of Incorporation
3.01(b)
ANR Certificate of Merger
1.02(b)
 
 

iv

Defined Term
Section
ANR Financial Advisor
3.24
ANR Merger
1.01
ANR Merger Consideration
1.05(b)(iii)
ANR Merger Surviving Corporation
1.01
ANR Plan
8.11
ANR RSU
2.03(b)
ANR Stockholder Approvals
3.22(b)
ANR Stock Option
2.03
Antitrust Law
5.07(a)
Appraisal Shares
1.07
beneficial ownership
8.11
Book-Entry Shares
2.01(b)(ii)
Business Day
8.11
Capitalization Date
3.02(a)
Certificates
2.01(b)(i)
Change of Alpha Board Recommendation
5.03(a)(iii)
Class C-1 Common Stock
3.02(b)(i)
Class C-2 Common Stock
3.02(b)(ii)
Closing
1.02(a)
Closing Date
1.02(a)
Code
Recitals
Computer Software
3.15(e)
Confidentiality Agreement
8.11
Contract
3.04(a)(iii)
Controlled Group Liability
8.11
Contura
Preamble
Contura Board
Recitals
Contura Bylaws
4.01(b)
Contura Cap Ex Budget
5.02(o)(i)
Contura Certificate of Incorporation
4.01(b)
Contura Charter Amendment
Recitals
Contura Common Stock
Recitals
Contura Disclosure Schedule
Article 4
Contura Environmental Permits
4.14
Contura Financial Advisor
4.23
Contura Improvements
4.16(c)(iv)
Contura Intellectual Property
4.15(a)
Contura Interested Party Agreement
4.21(iii)
Contura Lease
4.16(a)(ii)
Contura Leased Real Property
4.16(a)(ii)
Contura Material Adverse Effect
8.11
Contura Material Contract
4.17(a)(x)
Contura New Acquisition
5.02(c)(ii)
Contura New Acquisitions
5.02(c)(ii)
Contura Owned Intellectual Property
4.15(b)(i)

v

Defined Term
Section
Contura Owned Real Property
4.16(a)(i)
Contura Parties
4.03(a)
Contura Permit Applications
4.13(c)(i)
Contura Permits
4.13(a)(i)
Contura Plan
8.11
Contura Preferred Stock
4.02(a)(ii)
Contura Real Property
4.16(a)(iii)
Contura RSU
2.03(b)
Contura Sale Transaction
5.07(b)
Contura Securities
4.02(c)(iii)
Contura Service Provider
4.08(h)
Contura Stock Option
4.02(b)
Contura Stockholder Approval
4.22
Contura Subsidiary Securities
4.02(d)(iii)
Contura Surety Bonds
4.13(d)
Copyrights
3.15(e)
Current Employees
5.09
DGCL
1.01
Effective Time
1.02(b)
Environment
3.14(i)(i)
Environmental Claim
3.14(i)(ii)
Environmental Law
3.14(i)(iii)
ERISA
3.08(b)(ii)
ERISA Affiliate
8.11
Exchange Act
3.04(b)(ii)
Exchange Agent
2.01(a)
Exchange Fund
2.01(a)
Exchange Ratio
8.11
Excluded Intervening Event
8.11
Expense Reimbursement
7.03(d)
First Effective Time
1.02(b)
Form S-4
3.07(i)
Governmental Entity
3.04(b)
Hazardous Materials
3.14(i)(iv)
HSR Act
3.04(b)(i)
Holdings
Preamble
Holdings Board
3.03(a)
Holdings Board Recommendation
3.03(b)(iv)
Holdings Bylaws
3.01(b)
Holdings Certificate of Incorporation
3.01(b)
Holdings Certificate of Merger
1.02(b)
Holdings Common Stock
3.02(a)
Holdings Merger
1.01
Holdings Merger Consideration
1.05(a)(iii)
Holdings Merger Surviving Corporation
1.01

vi

Defined Term
Section
Holdings Preferred Stock
3.02(a)
Holdings Series A Preferred Stock
3.02(a)
Holdings Series B Preferred Stock
3.02(a)
Holdings Stockholder Approval
3.22(a)
Indebtedness
8.11
Indemnified Parties
5.08(b)
Indemnified Party
5.08(b)
Initial Alpha Director Designees
1.04(a)
Intellectual Property Rights
3.15(a)
Joint Proxy Statement
3.07(ii)
KESP
5.09(c)
knowledge
8.11
Law
3.04(a)(ii)
Lien
8.11
Materially Burdensome Conditions
5.07(a)
Merger Consideration
1.05(b)(iii)
MergerSub 1
Preamble
MergerSub 2
Preamble
New Option
2.03
NYSE
8.11
Outside Date
8.11
Permit
8.11
Permitted Liens
8.11
Person
8.11
Proceeding
3.10(a)
Release
3.14(i)(v)
Representatives
8.11
Required Nomination Period
1.04(b)
Reverse Termination Fee
7.03(g)
SEC
3.04(b)(ii)
Second Effective Time
1.02(b)
Secretary of State
1.02(b)
Section 262
1.07
Securities Act
3.07(i)
Subsidiary
8.11
Surety Bonds
3.13(d)
Surviving Corporations
1.01
Takeover Laws
3.23
Tax
3.11(l)
Tax Certificate
5.17(d)(vi)
Taxing Authority
3.11(l)
Tax Return
3.11(l)
Termination Fee
7.03(d)
Treasury Regulations
8.11
WARN
3.09(d)

vii

Exhibit 2.1
EXECUTION VERSION


AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of April 29, 2018, by and between ANR, Inc., a Delaware corporation (“ ANR ”), Alpha Natural Resources Holdings, Inc., a Delaware corporation (“ Holdings ”, and together with ANR, the “ Alpha Parties ”), Contura Energy, Inc., a Delaware corporation (“ Contura ”), Prime Acquisition I, Inc., a Delaware corporation and wholly owned Subsidiary of Contura (“ MergerSub 1 ”), and Prime Acquisition II, Inc., a Delaware corporation and wholly owned Subsidiary of MergerSub 1 (“ MergerSub 2 ”).
RECITALS
WHEREAS, the respective Boards of Directors of each of Holdings, ANR, Contura, MergerSub 1 and MergerSub 2 have approved this Agreement and determined that the terms of this Agreement, including the consummation of the Mergers upon the terms and subject to the conditions set forth herein, are in the best interests of Holdings, ANR, Contura, MergerSub 1 or MergerSub 2, respectively, and their respective stockholders;
WHEREAS, the respective Boards of Directors of each of Holdings, ANR, MergerSub 1 and MergerSub 2 have declared the advisability of this Agreement, recommended adoption of this Agreement by their respective stockholders and directed that this Agreement be submitted to their respective stockholders for adoption;
WHEREAS, after the Holdings Merger, Holdings will be a wholly owned Subsidiary of Contura, and, after the ANR Merger, ANR will be a wholly owned Subsidiary of Holdings;
WHEREAS, the Board of Directors of Contura (the “ Contura Board ”) has resolved to recommend approval by the stockholders of Contura of the amendment of Contura’s certificate of incorporation in the form attached hereto as Exhibit A to, among other things, increase the number of authorized shares of common stock, par value $0.01 of Contura (“ Contura Common Stock ”), in connection with the transactions contemplated herein (the “ Contura Charter Amendment ”);
WHEREAS, promptly following the execution and delivery of this Agreement, the beneficial owners of a majority of the outstanding shares of Contura Common Stock shall execute and deliver a written consent approving the Contura Charter Amendment in the form attached hereto as Exhibit B , and the Contura Charter Amendment will become effective immediately prior to the First Effective Time;
WHEREAS, for United States federal income tax purposes, it is intended that each Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and this Agreement is intended to be and is adopted as a “plan of reorganization” for purposes of Sections 354 and 361 of the Code; and


WHEREAS, the parties hereto desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
THE MERGERS
Section 1.01.      The Mergers; Effects of the Mergers . Upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”), (a) at the First Effective Time, MergerSub 1 shall be merged with and into Holdings (the “ Holdings Merger ”) and as a result the separate corporate existence of MergerSub 1 shall cease and Holdings shall continue as the surviving corporation of the Holdings Merger (the “ Holdings Merger Surviving Corporation ”) and (b) at the Second Effective Time, MergerSub 2 shall be merged with and into ANR (the “ ANR Merger ” and together with the Holdings Merger, the “ Mergers ”) and as a result the separate corporate existence of MergerSub 2 shall cease and ANR shall continue as the surviving corporation of the ANR Merger (the “ ANR Merger Surviving Corporation ” and together with the Holdings Merger Surviving Corporation, the “ Surviving Corporations ”). The Mergers shall have the effects set forth herein and in the applicable provisions of the DGCL. Without limiting the generality of the foregoing and subject thereto, (i) at the First Effective Time, all the property, rights, privileges, immunities, powers and franchises of Holdings and MergerSub 1 shall vest in the Holdings Merger Surviving Corporation and all debts, liabilities and duties of Holdings and MergerSub 1 shall become the debts, liabilities and duties of the Holdings Merger Surviving Corporation and (ii) at the Second Effective Time, all the property, rights, privileges, immunities, powers and franchises of ANR and MergerSub 2 shall vest in the ANR Merger Surviving Corporation and all debts, liabilities and duties of ANR and MergerSub 2 shall become the debts, liabilities and duties of the ANR Merger Surviving Corporation.
Section 1.02.      Consummation of the Mergers . (a) Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated hereby (the “ Closing, ” and the date on which the Closing occurs, the “ Closing Date ”) will take place at 10:00 a.m., New York time, as promptly as practicable, but in no event later than the fourth Business Day, after the satisfaction or, to the extent permitted by applicable Law, waiver (by the party entitled to grant such waiver) of the conditions set forth in ‎Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions at the Closing), at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, NY 10017 or at such other place or on such other date or time as the parties hereto may mutually agree in writing.
(b)      On the Closing Date and subject to the terms and conditions hereof, Contura and the Alpha Parties shall (i) cause the Holdings Merger to be consummated by filing

9

with the Secretary of State of the State of Delaware (the “ Secretary of State ”) a duly executed certificate of merger (the “ Holdings Certificate of Merger ”), as required by the DGCL, and shall take all such further actions as may be required by Law to make the Holdings Merger effective, and immediately thereafter (ii) cause the ANR Merger to be consummated by filing with the Secretary of State a duly executed certificate of merger (the “ ANR Certificate of Merger ”), as required by the DGCL, and shall take all such further actions as may be required by Law to make the ANR Merger effective. The date and time of the filing of the Holdings Certificate of Merger with the Secretary of State (or such later date and time as shall be agreed to by the parties hereto and is specified in the Holdings Certificate of Merger) is referred to as the “ First Effective Time ” and the date and time of the filing of the ANR Certificate of Merger with the Secretary of State (or such later date and time as shall be agreed to by the parties hereto and is specified in the ANR Certificate of Merger) is referred to as the “ Second Effective Time ”.
Section 1.03.      Certificate of Incorporation; Bylaws . (a) (i) At the First Effective Time, the certificate of incorporation of MergerSub 1 shall, by virtue of the Holdings Merger, become the certificate of incorporation of the Holdings Merger Surviving Corporation, until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the Holdings Merger Surviving Corporation shall be amended to be Alpha Natural Resources Holdings, Inc.) and (ii) at the Second Effective Time, the certificate of incorporation of MergerSub 2 shall, by virtue of the ANR Merger, become the certificate of incorporation of the ANR Merger Surviving Corporation, until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the ANR Merger Surviving Corporation shall be amended to be ANR, Inc.).
(b)      (i) At the First Effective Time, the bylaws of MergerSub 1 shall, by virtue of the Holdings Merger, become the bylaws of the Holdings Merger Surviving Corporation until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the Holdings Merger Surviving Corporation shall be amended to be Alpha Natural Resources Holdings, Inc.) and (i) at the Second Effective Time, the bylaws of MergerSub 2 shall, by virtue of the ANR Merger, become the bylaws of the ANR Merger Surviving Corporation, until thereafter amended in accordance with its terms and as provided by Law (subject to ‎Section 5.08(a) and provided that the name of the ANR Merger Surviving Corporation shall be amended to be ANR, Inc.).
Section 1.04.      Directors and Officers . (a) Contura shall take all such actions as are necessary, in accordance with the Contura Certificate of Incorporation and Contura Bylaws, to, as of the Second Effective Time (i) cause the size of the Contura Board to be expanded to nine directors and (ii) cause to be appointed to the Contura Board four individuals (the “ Initial Alpha Director Designees ”), filling the vacancies created by the increase of the size of the Contura Board. The Initial Alpha Director Designees shall be John E. Lushefski, Daniel J. Geiger, David J. Stetson and Harvey L. Tepner; provided that, if John E. Lushefski, Daniel J. Geiger or Harvey L. Tepner fail to meet any Independence Standard as of the Closing, such individual shall not be appointed to the Contura Board. In the event that any such Initial Alpha Director Designee, at or prior to

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the Closing, is unable to or has declined to serve on the Contura Board (or is not appointed to the Contura Board pursuant to the proviso to the immediately preceding sentence), Contura shall cause to be appointed to the Contura Board, as of the Second Effective Time, an individual designated by ANR (following consultation with Contura and subject to the approval of the Contura Board, which shall not be unreasonably withheld, conditioned or delayed (provided that the Contura Board may decline to approve any individual who fails to meet any Independence Standard in its reasonable discretion exercised in good faith)) to replace such Initial Alpha Director Designee on the Contura Board. Each Initial Alpha Designee and any other individual nominated or designated to serve as an Alpha Director is referred to herein as an “ Alpha Director Designee .” Contura acknowledges and agrees that, as of the date of this Agreement and based solely upon the information provided by the Alpha Parties to Contura prior to the date hereof, it has no reason to believe that any of Messrs. Lushefski, Geiger and Tepner would fail to meet any Independence Standard as of the date of this Agreement. At or prior to the Closing, Contura shall not adopt, implement or change any Independence Standard in a manner that would adversely affect the ability of any of Messrs. Lushefski, Geiger and Tepner to satisfy any Independence Standards, except to the extent required by the listing standards of the NYSE or NASDAQ, as applicable, or the rules and regulations of the SEC.
(b)      Following the Closing and through the completion of Contura’s annual meeting of its stockholders in 2019 (the “ Required Nomination Period ”), (i) the size of the Contura Board shall not be changed (except that the size may be reduced to fewer than nine directors in the event of any resignation or other cessation of service of one or more directors) and (ii) in connection with any annual meeting of Contura’s stockholders or any special meeting of Contura’s stockholders at which directors of the Contura Board are to be elected, the Contura Board shall (x) nominate for election to the Contura Board of, (y) unanimously recommend that Contura’s stockholders vote in favor of election to the Contura Board of, and (z) solicit proxies in favor of the election of, each of the Alpha Director Designees; provided, however, that the Contura Board will not be required to take any of the actions set forth in the preceding clauses (x), (y) and (z) if it reasonably determines, upon the advice of counsel and applying the same standards and principles with respect to all directors of Contura, that the taking of such action would reasonably be expected to constitute a violation of its fiduciary duties.
(c)      Each Alpha Director Designee who is elected or appointed to the Contura Board (each such individual, an “ Alpha Director ”) shall serve on the Contura Board, to hold office in accordance with the Contura Certificate of Incorporation and Contura Bylaws, until the earlier of his or her resignation or until his or her successor is duly elected and qualified, as the case may be.
(d)      Each Alpha Director shall be entitled to (i) compensation for services rendered to the Contura Board (including any committee of the Contura Board) at levels, and otherwise on terms, comparable to other members of the Contura Board who are not employees of Contura or its Subsidiaries and (ii) indemnification protection and liability insurance coverage on the same terms as other members of the Contura Board.

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(e)      From and after the Closing, until successors are duly elected or appointed and qualified in accordance with applicable Law, unless otherwise determined by Contura prior to the Closing, (i) the directors of MergerSub 1 at the First Effective Time shall be the directors of the Holdings Merger Surviving Corporation, (ii) the directors of MergerSub 2 at the Second Effective Time shall be the directors of the ANR Merger Surviving Corporation, (iii) the officers of MergerSub 1 at the First Effective Time shall be the officers of the Holdings Merger Surviving Corporation and (iv) the officers of MergerSub 2 at the Second Effective Time shall be the officers of the ANR Merger Surviving Corporation.
Section 1.05.      Conversion of Shares .
(a)      At the First Effective Time, by virtue of the Holdings Merger and without any action on the part of the parties hereto or on the part of any holder of any shares of capital stock or other equity interests of the parties hereto:
(i)      Each share of common stock, par value $0.01, of MergerSub 1 issued and outstanding immediately prior to the First Effective Time shall be converted into and become one validly issued, fully paid and nonasessable share of common stock, par value $0.01, of the Holdings Merger Surviving Corporation.
(ii)      Each share of Holdings Common Stock that is directly owned by Holdings, including as treasury stock, immediately prior to the First Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(iii)      Subject to ‎Section 1.06, each share of Holdings Common Stock issued and outstanding immediately prior to the First Effective Time (other than shares to be canceled in accordance with ‎Section 1.05(a)(ii) and as provided in ‎Section 1.07 with respect to Appraisal Shares) shall be converted into the right to receive that number of fully paid and nonassessable shares of Contura Common Stock equal to the Exchange Ratio (the “ Holdings Merger Consideration ”). All such shares of Holdings Common Stock, when so converted, shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder thereof shall cease to have any rights with respect thereto, except the right to receive the Holdings Merger Consideration as provided herein, any dividends or other distributions payable pursuant to ‎Section 2.01(c) and cash in lieu of fractional shares payable pursuant to ‎Section 1.06.
(b)      At the Second Effective Time, by virtue of the ANR Merger and without any action on the part of the parties hereto or on the part of any holder of any shares of capital stock or other equity interests of the parties hereto:
(i)      Each share of common stock, par value $0.01, of MergerSub 2 issued and outstanding immediately prior to the Second Effective Time shall be

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converted into and become one validly issued, fully paid and nonasessable share of common stock, par value $0.01, of the ANR Merger Surviving Corporation.
(ii)      Each share of Class C-1 Common Stock that is directly owned by ANR, including as treasury stock, immediately prior to the Second Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(iii)      Subject to ‎Section 1.06, each share of Class C-1 Common Stock issued and outstanding immediately prior to the Second Effective Time (other than shares to be canceled in accordance with ‎Section 1.05(b)(ii) and as provided in ‎Section 1.07 with respect to Appraisal Shares) shall be converted into the right to receive that number of fully paid and nonassessable shares of Contura Common Stock equal to the Exchange Ratio (the “ ANR Merger Consideration ” and together with the Holdings Merger Consideration, the “ Merger Consideration ”). All such shares of Class C-1 Common Stock, when so converted, shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder thereof shall cease to have any rights with respect thereto, except the right to receive the ANR Merger Consideration as provided herein, any dividends or other distributions payable pursuant to ‎Section 2.01(c) and cash in lieu of fractional shares payable pursuant to ‎Section 1.06.
(iv)      Each share of Class C-2 Common Stock issued and outstanding immediately prior to the Second Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
Section 1.06.      Fractional Shares . No fraction of a share of Contura Common Stock will be issued by virtue of either of the Mergers to holders of Holdings Common Stock or Class C-1 Common Stock, but in lieu thereof each holder of Holdings Common Stock or Class C-1 Common Stock who would otherwise be entitled to a fraction of a share of Contura Common Stock (after aggregating all shares of Contura Common Stock that otherwise would be received by such holder) shall, upon surrender of such holder’s Certificates or Book-Entry Shares in accordance with ‎Section 2.01, receive from Contura (through the amounts deposited with the Exchange Agent in accordance with Section 2.01) an amount of cash (rounded to the nearest whole cent), without interest, equal to the product of: (i) the fractional share interest (after aggregating all shares of Contura Common Stock that would otherwise be received by such holder) which such holder would otherwise receive, multiplied by (ii) the Per Contura Share Price.
Section 1.07.      Appraisal Rights . Notwithstanding anything in this Agreement to the contrary, shares (the “ Appraisal Shares ”) of Holdings Common Stock or Class C-1 Common Stock issued and outstanding immediately prior to the Closing that are held by any holder who is entitled to demand and properly demands appraisal of such shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“ Section 262 ”) shall not be converted into the right to receive the Merger

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Consideration as provided in ‎Section 1.05, but instead such holder shall be entitled to payment of the fair value of such shares in accordance with the provisions of Section 262. At the Closing, the Appraisal Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262 or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Appraisal Shares under Section 262 shall cease and such Appraisal Shares shall be deemed to have been converted at the Closing into, and shall have become, the right to receive the Merger Consideration as provided in ‎Section 1.05. The Alpha Parties shall give prompt notice to Contura of any demands for appraisal of any shares of Holdings Common Stock or Class C-1 Common Stock, withdrawals of such demands and any other instruments served pursuant to the DGCL received by the Alpha Parties, and Contura shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Closing, the Alpha Parties shall not, without the prior written consent of Contura, voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do or commit to do any of the foregoing.
Section 1.08.      Subsequent Actions . If at any time after the Closing, Contura shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to continue, vest, perfect or confirm of record or otherwise a Surviving Corporation’s right, title or interest in, to or under any of the rights, properties, privileges, franchises or assets of the applicable Alpha Party as a result of, or in connection with, the Mergers, or otherwise to carry out the intent of this Agreement, the officers and directors of such Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the applicable Alpha Party all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of the applicable Alpha Party or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties, privileges, franchises or assets in such Surviving Corporation or any of its Subsidiaries or otherwise to carry out the intent of this Agreement.
ARTICLE 2
EXCHANGE OF SHARES AND CERTIFICATES, EQUITY AWARDS
Section 2.01.      Exchange of Shares and Certificates; Procedures . (a) Prior to the Closing, Contura shall engage, or shall cause to be engaged, an institution selected by Contura and reasonably acceptable to the Alpha Parties to act as exchange agent in connection with the Mergers (the “ Exchange Agent ”). Immediately prior to the Closing, Contura will deposit with the Exchange Agent, in trust for the benefit of the holders of Holdings Common Stock and Class C-1 Common Stock immediately prior to the Closing, (x) the applicable number of shares of Contura Common Stock to be issued as

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Merger Consideration, (y) cash in an amount sufficient to make the payments in lieu of fractional shares pursuant to ‎Section 1.06 and (z) cash in an amount sufficient to make any dividends or distributions to which holders of Holdings Common Stock or Class C-1 Common Stock may be entitled pursuant to ‎Section 2.01(c)(i). All cash and shares of Contura Common Stock deposited with the Exchange Agent shall hereinafter be referred to as the “ Exchange Fund. ” The cash included in the Exchange Fund shall be invested by the Exchange Agent in such manner as Contura shall direct; provided that (ii) no such investment or losses thereon shall affect the amounts payable to former holders of Holdings Common Stock or Class C-1 Common Stock after the Closing pursuant to this ‎Article 2, and (iii) such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest or income produced by such investments will be payable to Contura. The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Sections ‎1.05 and ‎1.06 and this ‎Section 2.01. Contura shall take all actions necessary to ensure that the Exchange Fund includes at all times cash sufficient to satisfy Contura’s obligations under Section ‎1.06 and this Article 2.
(b)      As soon as reasonably practicable after the Closing and in no event later than three Business Days following the Closing, Contura shall cause the Exchange Agent to mail to each record holder, as of the Closing, of (i) a certificate or certificates which immediately prior to the Closing represented outstanding shares of Holdings Common Stock or Class C-1 Common Stock (the “ Certificates ”) or (ii) Holdings Common Stock or Class C-1 Common Stock represented by book-entry (“ Book-Entry Shares ”), a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss, theft or destruction in lieu thereof meeting the requirements of Section 2.01(d)) to the Exchange Agent or, in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal (which shall be in customary form and contain such other provisions as are reasonably satisfactory to the Alpha Parties and Contura) and instructions for use in effecting the surrender of the Certificates or, in the case of Book-Entry Shares, the surrender of such Holdings Common Stock or Class C-1 Common Stock, in exchange for (x) whole shares of Contura Common Stock to be issued as Merger Consideration, (y) cash in lieu of any fractional shares pursuant to ‎Section 1.06 and (z) any dividends or other distributions payable pursuant to ‎Section 2.01(c). Following surrender to the Exchange Agent of a Certificate or Book-Entry Share, together with such letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry Share will be entitled to receive in exchange therefor, subject to the certificate requirements and discussion below in Section 5.17, (A) that number of whole shares of Contura Common Stock (after taking into account all Certificates or Book-Entry Shares surrendered by such holder) to be issued as Merger Consideration to which such holder is entitled pursuant to Sections ‎1.05 (or uncertificated shares in book

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entry form), (B) payment by cash or check in lieu of fractional shares which such holder is entitled to receive pursuant to ‎Section 1.06, and (C) any dividends or distributions payable pursuant to ‎Section 2.01(c), and the Certificates or book entries evidencing the Book-Entry Shares so surrendered shall forthwith be canceled. No interest will be paid or accrued on any amount payable pursuant to ‎Section 1.06 or ‎Section 2.01(c) upon the surrender of the Certificates or Book-Entry Shares. If payment is to be made to a Person other than the Person in whose name the Certificate or Book-Entry Share surrendered is registered, it will be a condition of payment that the Certificate or Book-Entry Share so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or established to the satisfaction of Contura that such Tax has been paid or is not applicable. Subject to Section 1.07, from and after the Closing and until surrendered in accordance with the provisions of this ‎Section 2.01, each Certificate or Book-Entry Share shall represent for all purposes solely the right to receive, in accordance with the terms hereof, the Merger Consideration (and any amounts to be paid pursuant to ‎Section 1.06 or ‎Section 2.01(c)) upon such surrender, without any interest thereon and subject to any applicable withholding Tax pursuant to Section 5.17.
(c)      No dividends or other distributions with respect to shares of Contura Common Stock with a record date after the Closing shall be paid to the holder of any unsurrendered Certificate or Book-Entry Share with respect to the shares of Contura Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to ‎Section 1.06, until such Certificate or Book-Entry Share has been surrendered in accordance with this ‎Section 2.01. Subject to applicable Law, following surrender of any such Certificate or Book-Entry Share, there shall be paid to the record holder thereof, without interest, (i) promptly after such surrender, the number of whole shares of Contura Common Stock issuable as Merger Consideration in exchange therefor pursuant to Sections ‎1.05, together with any cash payable in lieu of a fractional share of Contura Common Stock to which such holder is entitled pursuant to ‎Section 1.06 and the amount of dividends or other distributions with a record date after the Closing theretofore paid with respect to such whole shares of Contura Common Stock and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Closing and a payment date subsequent to such surrender payable with respect to such whole shares of Contura Common Stock.
(d)      If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Contura, the posting by such Person of a bond in such reasonable amount as Contura may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate such shares of Contura Common Stock to be issued as Merger Consideration as may be required pursuant to ‎Section 2.01(b), cash for fractional shares pursuant to ‎Section 1.06 and any dividends or

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distributions payable at such time pursuant to ‎Section 2.01(c) with respect to the Holdings Common Stock or Class C-1 Common Stock formerly represented thereby.
(e)      Any portion of the Exchange Fund that remains unclaimed by the former holders of Holdings Common Stock and Class C-1 Common Stock for 12 months after the Closing shall be paid to Contura. Any former holder of Holdings Common Stock or Class C-1 Common Stock that has not complied with this ‎Section 2.01 prior to the end of such 12-month period shall thereafter look only to Contura (subject to abandoned property, escheat or other similar Laws) but only as a general creditor thereof for payment of its claim for the Merger Consideration, any cash in lieu of fractional shares pursuant to ‎Section 1.06 and any dividends or distributions payable pursuant to ‎Section 2.01(c), without any interest thereon. All charges and expenses of the Exchange Agent incurred in connection with the exchange of Holdings Common Stock or Class C-1 Common Stock for the Merger Consideration, other than as provided in Section 5.17, shall be borne by Contura. Contura shall not be liable to any holder or former holder of Holdings Common Stock or Class C-1 Common Stock for any monies delivered from the Exchange Fund or otherwise to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been surrendered immediately prior to the date that such unclaimed funds would otherwise become subject to any abandoned property, escheat or similar Law, any unclaimed funds payable with respect to such Certificates or Book-Entry Shares shall, to the extent permitted by applicable Law, become the property of Contura, free and clear of all claims or interest of any Person previously entitled thereto.
(f)      All shares of Contura Common Stock issued upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this ‎Article 2 and any cash paid pursuant to ‎Section 1.06 or ‎Section 2.01(c) shall be deemed to have been issued (or paid) in full satisfaction of all rights pertaining to the Holdings Common Stock or Class C-1 Common Stock previously represented by such Certificates or Book-Entry Shares.
Section 2.02.      Closing of Transfer Books . At the Closing, the stock transfer books of the ANR Parties shall be closed, and no transfer of Holdings Common Stock or Class C-1 Common Stock that were outstanding prior to the Closing shall thereafter be made. If, after the Closing, Certificates that were outstanding prior to the Closing are presented to Contura for transfer, they shall be cancelled and exchanged as provided in this ‎Article 2.
Section 2.03.      Treatment of ANR Equity Awards .
(a)      Treatment of ANR Stock Options. Except as set forth in Section 5.01(n) of the Alpha Disclosure Schedule, immediately prior to the Second Effective Time, each compensatory option to purchase shares of Class C-1 Common Stock (each, an “ ANR Stock Option ”) that is outstanding immediately prior to the Second Effective Time, whether or not then vested, shall be converted automatically into such number of shares of Class C-1 Common Stock equal to the applicable ANR Option New Share Amount.  ANR shall issue the applicable number of shares of Class C-1 Common Stock

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(the “ Deliverable Option Shares ”) to each holder of an ANR Stock Option as Book-Entry Shares, which shall be subject to applicable Tax withholding.  Each holder of an ANR Stock Option for whom there is a Tax withholding obligation shall be given the opportunity to elect, which election must be made not less than one Business Day prior to the beginning of the period during which the Per ANR Share Price will be measured, to satisfy the applicable Tax withholding on the Deliverable Option Shares (i) in cash delivered by such holder or (ii) by reduction in the number of Deliverable Option Shares, with such reduction calculated based on the Per ANR Share Price (and any shares of Class C-1 Common Stock used to satisfy such holder’s Tax withholding obligation shall not be issued to such holder or converted into shares of Contura Common Stock in accordance with ‎Section 1.05(b)(iii)); provided that if no election is timely made, such holder shall be deemed to have elected to pay the withholding Tax by reduction in the number of Deliverable Option Shares pursuant to clause (ii). If an ANR Stock Option holder elects to pay the applicable withholding Tax in cash pursuant to clause (i), such holder will be required to make, at least one Business Day prior to the Second Effective Time and as a condition to the issuance to such holder of such shares of Contura Common Stock, a cash payment to ANR in an amount equal to the applicable Tax withholding amount (as calculated by ANR with the approval of Contura, which shall not be unreasonably withheld, conditioned or delayed), and such holder shall be required to make an additional payment (or receive reimbursement) promptly following the Second Effective Time to the extent the actual Tax withholding obligation is different than the cash payment made. At the Second Effective Time, any shares of Class C-1 Common Stock issued to a holder of an ANR Stock Option in accordance with this ‎Section 2.03(a) shall be converted into shares of Contura Common Stock in accordance with ‎Section 1.05(b)(iii); provided that Contura shall use commercially reasonable efforts to establish procedures that facilitate the prompt issuance of the applicable number of shares of Contura Common Stock to each individual that had held an ANR Stock Option. Prior to the Second Effective Time, the ANR Board or the compensation committee of the ANR Board, as applicable, shall adopt any resolutions and take any actions (including obtaining any applicable consents) which are reasonably necessary to effectuate the provisions of this ‎Section 2.03(a).
(b)      Treatment of ANR RSUs. At the Second Effective Time, each outstanding restricted stock unit granted under any ANR Plan (each, an “ ANR RSU ”), whether or not then vested, shall be assumed by Contura and converted automatically into a restricted stock unit award (a “ Contura RSU ”) relating to a number of shares of Contura Common Stock equal to the product of (i) the number of ANR RSUs held by the holder thereof immediately prior to the Second Effective Time, multiplied by (ii) the Exchange Ratio, with any fractional shares rounded down to the nearest whole number of shares. Each Contura RSU shall otherwise have the same terms and conditions (including as to continued vesting) as were applicable to an ANR RSU immediately prior to the Second Effective Time.
Section 2.04.      Adjustments . If at any time during the period between the date of this Agreement and the Closing, any change in the outstanding shares of capital stock, or securities convertible or exchangeable into or exercisable for shares of capital stock, of

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either Alpha Party or Contura shall occur as a result of any reclassification, recapitalization, stock split (including a reverse stock split) or subdivision or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, the Exchange Ratio shall be equitably adjusted, without duplication, to reflect such change; provided that nothing in this ‎Section 2.04 shall be construed to permit either Alpha Party or Contura to take any action with respect to its respective securities that is prohibited by the terms of this Agreement.
Section 2.05.      Withholding Taxes . Notwithstanding any other provision of this Agreement, Contura shall be entitled to deduct and withhold from the consideration or other amounts otherwise payable pursuant to the Mergers or this Agreement in accordance with ‎Section 5.17 and ‎Section 2.03(a), as applicable.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ALPHA PARTIES
Except as disclosed in the correspondingly numbered section of the disclosure letter dated the date of this Agreement and delivered by ANR to Contura with respect to this Agreement immediately prior to the execution of this Agreement (the “ Alpha Disclosure Schedule ”) (provided, however, that a matter disclosed in the Alpha Disclosure Schedule with respect to one representation or warranty shall also be deemed to be disclosed with respect to each other representation or warranty to the extent it is reasonably apparent from the text of such disclosure that such disclosure applies to or qualifies such other representation or warranty), each Alpha Party represents and warrants to Contura as follows:
Section 3.01.      Organization and Qualification . (a) Each Alpha Party is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, with all requisite corporate power and authority to own its properties and conduct its business as currently conducted. Each Subsidiary of the Alpha Parties is a duly organized and validly existing entity in good standing (where applicable) under the Laws of its jurisdiction of organization, with all requisite entity power and authority to own its properties and conduct its business as currently conducted. Each Alpha Party and each of their respective Subsidiaries is duly qualified and in good standing as a foreign corporation or entity authorized to do business in each of the jurisdictions in which the character of the properties owned or held under lease by it or the nature of the business transacted by it makes such qualification necessary, except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)      ANR has heretofore made available to Contura true, correct and complete copies of (i) the certificate of incorporation and bylaws of ANR as in effect on the date hereof, including all amendments thereto (respectively, the “ ANR Certificate of Incorporation ” and “ ANR Bylaws ”) and (ii) the certificate of incorporation and bylaws of Holdings as in effect on the date hereof, including all amendments thereto (respectively, the “ Holdings Certificate of Incorporation ” and “ Holdings Bylaws ”).

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(c)      Holdings does not own any assets or properties other than 4,223,400 shares of Class C-2 Common Stock, and Holdings does not have, and has never had, any employees, has not engaged in any activities or business and has incurred no liabilities or obligations, in each case, other than those incident to its ownership of Class C-2 Common Stock.
Section 3.02.      Capitalization . (a) The authorized capital stock of Holdings consists of (i) 5,000,000 shares of common stock, par value $0.01 per share, of Holdings (“ Holdings Common Stock ”) (ii) 6,500,000 shares of Series A Preferred Stock, par value $0.01 per share, of Holdings (“ Holdings Series A Preferred Stock ”), and (iii) 300,000 shares of Series B Preferred Stock, par value $0.01 per share, of Holdings (“ Holdings Series B Preferred Stock ”, and together with Holdings Series A Preferred Stock, “ Holdings Preferred Stock ”). As of the close of business on April 20, 2018 (the “ Capitalization Date ”), (A) 4,223,290 shares of Holdings Common Stock and no shares of Holdings Preferred Stock were issued and outstanding, (B) no shares of Holdings Common Stock were held in Holdings’ treasury, (C) 6,500,000 shares of Holdings Series A Preferred Stock were held in Holdings’ treasury, and (D) 300,000 shares of Holdings Series B Preferred Stock were held in Holdings’ treasury. All of the outstanding shares of Holdings Common Stock have been duly authorized and, as applicable, validly issued and are fully paid, nonassessable and free of preemptive rights.
(b)      The authorized capital stock of ANR consists of (i) 50,000,000 shares of Class C-1 common stock, par value $0.01 per share, of ANR (“ Class C-1 Common Stock ”) and (ii) 4,223,400 shares of Class C-2 Common Stock, par value $0.01 per share, of ANR (the “ Class C-2 Common Stock ”, and together with Holdings Common Stock and Class C-1 Common Stock, “ Alpha Capital Stock ”). As of the close of business on the Capitalization Date, (A) 15,907,752 shares of Class C-1 Common Stock and 4,223,400 shares of Class C-2 Common Stock were issued and outstanding, (B) no shares of Class C-1 Common Stock and no shares of Class C-2 Common Stock were held in ANR’s treasury, and (C) 2,000,000 shares of Class C-1 Common Stock and no shares of Class C-2 Common Stock were issuable under ANR Plans. All of the outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. Holdings owns 4,223,400 shares of Class C-2 Common Stock free and clear of any Liens.
(c)      Section 3.02(c) of the Alpha Disclosure Schedule contains a true, correct and complete list, as of the Capitalization Date, of each outstanding ANR Stock Option and ANR RSU outstanding, the number of shares of Class C-1 Common Stock issuable thereunder or to which such award pertains, the expiration date, and the exercise or conversion price, if applicable, related thereto and, if applicable, the ANR Plan pursuant to which each such ANR Stock Option and ANR RSU was granted. Since the Capitalization Date, no Alpha Party has issued any capital stock (other than issuances permitted by ‎Section 5.01 or upon the exercise of ANR Stock Options or settlement of ANR RSUs outstanding on the Capitalization Date in accordance with their terms), granted any other Alpha Securities or entered into any other agreements or commitments to issue any Alpha Securities, and has not split, combined or reclassified any shares of its

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capital stock. All of the outstanding ANR Stock Options and ANR RSUs have been issued under, and are subject to the terms and conditions of, the ANR, Inc. 2017 Equity Incentive Plan (the “ 2017 Equity Plan ”).
(d)      Except as set forth in ‎Section 3.02(a) and ‎(b) and except for ANR Stock Options and ANR RSUs set forth in Section 3.02(c) of the Alpha Disclosure Schedule, there are no outstanding (23) securities of any Alpha Party or any of their respective Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in any Alpha Party, (23) options, restricted stock warrants, rights or other agreements or commitments to acquire from any Alpha Party or any of their respective Subsidiaries, or obligations of any Alpha Party or any of their respective Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) any Alpha Party, or bonds, debentures, notes or other evidences of Indebtedness having the right to vote on any matters on which stockholders of any Alpha Party may vote, (23) obligations (contingent or otherwise) of any Alpha Party or any of their respective Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Alpha Security (the items in clauses ‎(i), ‎(ii) and ‎(iii), together with the capital stock of the Alpha Parties, being referred to collectively as “ Alpha Securities ”), or (iv) obligations (contingent or otherwise) of any Alpha Party or any of their respective Subsidiaries to make any payments directly or indirectly based (in whole or in part) on the price or value of any Alpha Securities. There are no outstanding obligations, commitments or arrangements, contingent or otherwise, of any Alpha Party or any of their Subsidiaries to purchase, redeem or otherwise acquire any Alpha Securities. There are no voting trusts or other agreements or understandings to which any Alpha Party or any of their respective Subsidiaries is a party (or, to the knowledge of any Alpha Party, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of any Alpha Party.
(e)      Section 3.02(e) of the Alpha Disclosure Schedule sets forth a complete and accurate list of the Subsidiaries of ANR. ANR, alone or together with one or more of its wholly owned Subsidiaries, is the record and beneficial owner of all the equity interests of each of its Subsidiaries, in each case free and clear of any Lien (other than Liens arising under applicable securities Laws). With respect to each Subsidiary of ANR, there are no outstanding (i) securities of any Alpha Party or any of their respective Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in any Subsidiary of ANR, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from any Alpha Party or any of their respective Subsidiaries, or obligations of any Alpha Party or any of their respective Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) any Subsidiary of ANR, (iii) obligations of any Alpha Party or any of their respective Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar

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agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of ANR (the items in clauses ‎(i), ‎(ii) and ‎(iii), together with the capital stock or other equity interests of such Subsidiaries, being referred to collectively as “ Alpha Subsidiary Securities ”), or (iv) obligations of any Alpha Party or any of their respective Subsidiaries to make any payment directly or indirectly based (in whole or in part) on the price or value of any Alpha Subsidiary Securities. There are no outstanding obligations, contingent or otherwise, of any Alpha Party or any of their respective Subsidiaries to purchase, redeem or otherwise acquire any outstanding Alpha Subsidiary Securities. There are no voting trusts or other agreements or understandings to which any Alpha Party or any of their respective Subsidiaries is a party (or, to the knowledge of any Alpha Party, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of any Subsidiary of ANR. Prior to the date hereof, ANR has made available to Contura complete and accurate copies of the charter and bylaws or other organizational documents of each Subsidiary of ANR.
(f)      ANR does not control, directly or indirectly, or have any direct or indirect equity participation or similar interest in any entity which is not a Subsidiary of ANR.
Section 3.03.      Authority for this Agreement; Board Action . (a) Holdings has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby to which Holdings is a party. The execution and delivery of this Agreement by Holdings and the consummation by Holdings of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Holdings (the “ Holdings Board ”), including the adoption by the Holdings Board of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the Holdings Merger, and no other corporate proceedings on the part of Holdings are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, other than, with respect to completion of the Holdings Merger, the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement by the Holdings Stockholder Approval prior to the consummation of the Holdings Merger and the filing of the Holdings Certificate of Merger with the Secretary of State as required by the DGCL. This Agreement has been duly and validly executed and delivered by Holdings and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(b)      The Holdings Board (at a meeting or meetings duly called and held) has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Holdings Merger, are advisable and fair to, and in the best interests of, Holdings and its stockholders, (ii) adopted and approved this Agreement and the transactions contemplated hereby, including the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the Holdings Merger, (iii) subject to the last sentence of ‎Section 5.05(a), directed that the

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“agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this Agreement be submitted to the stockholders of Holdings for adoption, and (iv) subject to Sections ‎5.03(d) and ‎(e), resolved to recommend the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this Agreement by the stockholders of Holdings (the “ Holdings Board Recommendation ”), which actions and resolutions, subject to Sections ‎5.03(d) and ‎(e), have not been subsequently rescinded, modified or withdrawn in any way.
(c)      ANR has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby to which ANR is a party. The execution and delivery of this Agreement by ANR and the consummation by ANR of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of ANR (the “ ANR Board ”), including the adoption by the ANR Board of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the ANR Merger, and no other corporate proceedings on the part of ANR are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, other than, with respect to completion of the ANR Merger, the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement by the ANR Stockholder Approval prior to the consummation of the ANR Merger and the filing of the ANR Certificate of Merger with the Secretary of State as required by the DGCL. This Agreement has been duly and validly executed and delivered by ANR and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of ANR, enforceable against ANR in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(d)      The ANR Board (at a meeting or meetings duly called and held) has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the ANR Merger, are advisable and fair to, and in the best interests of, ANR and its stockholders, (ii) adopted and approved this Agreement and the transactions contemplated hereby, including the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement as it relates to the ANR Merger, (iii) subject to the last sentence of ‎Section 5.05(a), directed that the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement be submitted to the stockholders of ANR for adoption, and (iv) subject to Sections ‎5.03(d) and ‎(e), resolved to recommend the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement by the stockholders of ANR (the “ ANR Board Recommendation ”, and together with the Holdings Board Recommendation, the “ Alpha Board Recommendations ”), which actions and resolutions, subject to Sections ‎5.03(d) and ‎(e), have not been subsequently rescinded, modified or withdrawn in any way.

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Section 3.04.      Consents and Approvals; No Violation . (a) Neither the execution and delivery of this Agreement by any Alpha Party nor the consummation of the transactions contemplated hereby by any Alpha Party will (i) violate or conflict with or result in any breach of any provision of the ANR Certificate of Incorporation, the Holdings Certificate of Incorporation, the ANR Bylaws or the Holdings Bylaws, (ii) assuming all consents, approvals and authorizations contemplated by clauses ‎(i) through ‎(iv) of ‎Section 3.04(b) have been obtained, and all filings described in such clauses have been made, in any material respect conflict with or violate any order, writ, injunction, decree, judgment, determination, requirement, award, stipulation, statute, rule or regulation of any Governmental Entity (“ Law ”) applicable to any Alpha Party or any of their respective Subsidiaries or by which any of their respective assets are bound, (iii) violate, conflict with or result in a breach of, or require any consent, waiver or approval under, or result in a default or give rise to any right of termination, cancellation, modification or acceleration (or an event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under, any of the terms, conditions or provisions of any note, bond, mortgage, lease, license, agreement, contract, indenture or other instrument or obligation (“ Contract ”) to which any Alpha Party or any of their respective Subsidiaries is a party or by which any Alpha Party or any of their respective Subsidiaries or any of their respective assets are bound, or (B) result (or, with the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Lien on any asset of any Alpha Party or any of their respective Subsidiaries, except in the case of clauses ‎(iii) and ‎(iv), as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)      The execution, delivery and performance of this Agreement by the Alpha Parties and the consummation of the transactions contemplated hereby do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any foreign, federal, state or local government or subdivision thereof, or governmental, judicial, legislative, executive, administrative or regulatory authority, agency, commission, tribunal or body (a “ Governmental Entity ”), except (i) the pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), (ii) the filing with the Securities and Exchange Commission (the “ SEC ”) of the Form S-4 and such other reports and filings as are required under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and regulations promulgated thereunder, (iii) the filing of the Certificates of Merger with the Secretary of State as required by the DGCL, (iv) such governmental consents, qualifications or filings as are customarily obtained or made in connection with the transfer of interests or the change of control of ownership in coal mining properties, including notices and consents relating to or in connection with mining, reclamation, nuclear material, radio communications and environmental Permits, in each case under the applicable Laws of West Virginia, Pennsylvania, Virginia, Kentucky, Utah, Tennessee, Illinois, Indiana and the United States of America and (v) any such consent, approval, authorization, permit, filing, or notification the failure of which to make or obtain would not have or reasonably be expected to be material.

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Section 3.05.      Financial Statements . (A) All of the Subsidiaries of ANR are consolidated for accounting purposes. ANR has delivered to Contura the audited consolidated financial statements (including the related notes thereto) of ANR for the fiscal year ended December 31, 2017 (the “ Balance Sheet Date ”) (the “ Alpha Financial Statements ”), and the Alpha Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of ANR and its Subsidiaries as of their respective dates, and the consolidated income, stockholders’ equity, results of operations and changes in consolidated financial position or cash flows for the periods presented therein.
(b)      The records, systems, controls, data and information of ANR and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of ANR or its accountants (including all means of access thereto and therefrom), except for any nonexclusive ownership and nondirect control that has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the system of internal accounting controls described below in this Section. ANR has implemented and maintain a system of internal controls that is designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements for external purposes in accordance with GAAP, and such system of internal controls is effective. ANR has disclosed, based on its most recent evaluation of its system of internal controls prior to the date of this Agreement, to their outside auditors and the audit committees of the ANR Board (A) any significant deficiencies and material weaknesses in the design or operation of its internal controls reporting that would reasonably be expected to adversely affect ANR’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in ANR’s internal controls over financial reporting. Prior to the date hereof, a true, correct and complete summary of any such disclosures made to ANR’s auditors and the audit committee of the ANR Board has been provided to Contura.
(c)      Since July 26, 2016, neither ANR nor any of its Subsidiaries or, to the knowledge of ANR, any director, officer, employee, auditor, accountant or representative of ANR or its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of ANR or its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that ANR or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and no attorney representing ANR or any of its Subsidiaries, whether or not employed by ANR or any of its Subsidiaries, has reported evidence of a material violation of securities Law, breach of fiduciary duty or similar violation by ANR or any of its Subsidiaries or any of its officers, directors, employees or agents to the ANR Board or any committee thereof or to any director or officer of ANR or any of its Subsidiaries.

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(d)      No Alpha Party nor any of their respective Subsidiaries has any liabilities of any nature, whether accrued, absolute, fixed, contingent or otherwise, known or unknown, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP, other than liabilities (i) as and to the extent reflected or reserved against on the consolidated balance sheet of ANR dated as of the Balance Sheet Date included in the Alpha Financial Statements, (ii) incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date, or (iii) that would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
Section 3.06.      Absence of Certain Changes . (a) Since the Balance Sheet Date, the Alpha Parties and their respective Subsidiaries have conducted their business only in the ordinary course consistent with past practice, and no Alpha Party nor any of their respective Subsidiaries has taken any action since the Balance Sheet Date that, if taken after the date of this Agreement without the prior written consent of Contura, would constitute a breach of ‎Section 5.01.
(b)      Since the Balance Sheet Date, there has not been any change, effect, event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
Section 3.07.      Information Supplied; Joint Proxy Statement . None of the information supplied or to be supplied in writing by or on behalf of any Alpha Party for inclusion or incorporation by reference in (i) the registration statement on Form S-4 to be filed with the SEC by Contura in connection with the issuance of Contura Common Stock for the Mergers (including any amendments or supplements, the “ Form S-4 ”) will, at the time the Form S-4 becomes effective under the Securities Act of 1933, as amended (the “ Securities Act ”), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the joint proxy statement relating to the Alpha Special Meetings (such proxy statement, as amended or supplemented from time to time, the “ Joint Proxy Statement ”) will, at the date such Joint Proxy Statement is first mailed to the stockholders of the Alpha Parties or at the time of the Alpha Special Meetings, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing provisions of this ‎Section 3.07, no representation or warranty is made by the Alpha Parties with respect to information or statements made or incorporated by reference in the Form S-4 or the Joint Proxy Statement that were not supplied in writing by or on behalf of the Alpha Parties.
Section 3.08.      Employee Benefits Matters . (a) Section 3.08(a) of the Alpha Disclosure Schedule contains a true, correct and complete list of all ANR Plans in effect on the date hereof. Prior to the date of this Agreement, ANR has provided or made available to Contura true, correct and complete copies as in effect on the date hereof of each of the following with respect to each such ANR Plan, as applicable: (i) the plan document or agreement or, with respect to any ANR Plan that is not in writing, a

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description of the material terms thereof; (ii) any summary plan description required to be furnished to participants pursuant to ERISA; (iii) the most recent annual report, actuarial report, financial report and/or communication to the U.S. Department of Labor or the Pension Benefits Guarantee Corporation, if any; (iv) all amendments or modifications to any such documents; (v) the most recent determination letter received from the Internal Revenue Service with respect to each ANR Plan that is intended to be a “qualified plan” under Section 401 of the Code; and (vi) the most recent required Internal Revenue Service Form 5500, including all schedules thereto.
(b)      Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, with respect to each ANR Plan, (i) since July 26, 2016, all expenses, contributions, premiums or payments required to be made to, under or with respect to such ANR Plan have been timely made and all amounts properly accrued to date or as of the Closing as liabilities of any Alpha Party or any of their respective Subsidiaries which are not yet due have been properly recorded on the books of the Alpha Parties and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Alpha Parties, (ii) since July 26, 2016, each such ANR Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)) and intended to qualify under Section 401 of the Code has received a favorable determination letter from the Internal Revenue Service with respect to such qualification, and, to the knowledge of any Alpha Party, nothing has occurred since the date of such letter that has affected, or would reasonably be expected to adversely affect, such qualification, (ii) since July 26, 2016, with respect to any ANR Plan maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied, (iv)  there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of any Alpha Party, threatened or anticipated with respect to such ANR Plan, any fiduciaries of such ANR Plan with respect to their duties to any ANR Plan, or against the assets of such ANR Plan or any trust maintained in connection with such ANR Plan, (v) since July 26, 2016, such ANR Plan has been operated and administered in compliance in all material respects with its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of any Alpha Party there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the posting of security with respect to a ANR Plan or the imposition of any pledge, lien, security interest or encumbrance on the assets of any Alpha Party or any of their respective Subsidiaries or any of their respective ERISA Affiliates under ERISA, the Pension Protection Act or the Code, or similar Laws of foreign jurisdictions.
(c)      No Alpha Party or any of their respective Subsidiaries or any of their ERISA Affiliates, (i) has, since July 26, 2016, sponsored, maintained or contributed to, or has ever had any obligation to contribute to, (ii) any “employee benefit plan” within the meaning of Section 3(3) of ERISA that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code or (iii) a “multiemployer plan” within the meaning of Section 3(37) and 4001(a)(3) of ERISA or a “multiple employer plan” within the meaning of Sections 4063/4064 of ERISA or Section 413(c) of the Code, or (iv) has,

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since July 26, 2016, incurred or reasonably expects to incur any direct or indirect liability pursuant to Title IV of ERISA (including any Controlled Group Liability).
(d)      To the knowledge of any Alpha Party, no ANR Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(e)      Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of any Alpha Party or any of their respective Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(f)      To the knowledge of any Alpha Party, all ANR Stock Options and ANR RSUs have been granted in compliance with the terms of the applicable ANR Plans, with applicable Law, and with the applicable provisions of the Alpha Certificate of Incorporation or the Alpha Bylaws as in effect at the applicable time.
(g)      Each ANR Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with applicable Law, including Section 409A of the Code.
(h)      No Alpha Party has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, consultant, director or individual independent contractor of any Alpha Party (each, an “ Alpha Service Provider ”) for any Tax incurred by such individual, including under Section 280G, 409A or 4999 of the Code.
(i)      No Alpha Party has any current or projected liability for, and no ANR Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any Alpha Service Provider (other than coverage mandated by applicable Law, including COBRA).
Section 3.09.      Employees . (a) Section 3.09(a) of the Alpha Disclosure Schedule sets forth, (i) for each current Alpha Service Provider who is classified as an employee, such employee’s name, employer, title, supervisor, hire date, years of service, location, whether full- or part-time, whether active or on leave (and, if on leave, the nature of the leave and the expected return date), whether exempt from the Fair Labor Standards Act, annual salary or wage rate, most recent annual, bi-annual, quarterly or monthly bonus received and current annual, bi-annual, quarterly or monthly bonus opportunity, retention

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incentives, and total compensation amount, including fringe benefits and (ii) for each current Alpha Service Provider who is classified as an independent contractor, such individual’s name, engaging entity, title, supervisor, engagement date, location, whether active or on leave (and, if on leave, the nature of the leave and the expected return date), annual wage rate, most recent annual or quarterly bonus received and current annual or quarterly bonus opportunity.
(b)      Section 3.09(b) of the Alpha Disclosure Schedule sets forth each collective bargaining agreement or any labor union contract with respect to employees in the United States to or by which any of the Alpha Parties or their respective Subsidiaries is a party or bound. A true and correct copy of each such agreement has been provided to Contura, together with a true and correct copy of all recall panels. There are, and since July 26, 2016 there have been, no actual or, to the knowledge of any Alpha Party, threatened, labor strikes, disputes, walkouts, work stoppages, slowdowns, or lockouts with respect to employees of any Alpha Party or any of their respective Subsidiaries. No material or class action labor grievance or arbitration demand or proceeding, or unfair labor practice charge or proceeding, whether or not filed pursuant to a collective bargaining agreement, has been filed since July 26, 2016, is pending or, to the knowledge of any Alpha Party, is threatened against any Alpha Party or their respective Subsidiaries.
(c)      Each Alpha Party and each of their respective Subsidiaries are, and since July 26, 2016 have been, in all material respects compliance with all applicable local, state, federal and foreign Laws relating to labor and employment, including but not limited to Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations. There are, and since July 26, 2016 there have been, no material complaints, lawsuits, arbitrations, administrative proceedings, or other Proceedings pending or, to the knowledge of any Alpha Party, threatened against any Alpha Party or any of their respective Subsidiaries brought by or on behalf of or material settlements entered into by an Alpha Party with any applicant for employment, any current or former Alpha Service Provider, any person alleging to be a current or former Alpha Service Provider, any class of the foregoing, or any Governmental Entity, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment or engagement, or alleging any other discriminatory, wrongful or tortuous conduct in connection with the employment or service relationship.
(d)      Since July 26, 2016, no Alpha Party or any of their current Subsidiaries has incurred any liability or obligation which remains unsatisfied under the Worker Adjustment and Retraining Notification Act or any state or local Laws regarding the termination or layoff of employees (“ WARN ”).
Section 3.10.      Litigation . (a) There is no claim, action, suit, proceeding, arbitration or mediation by or before any Governmental Entity (each, a “ Proceeding ”) pending (or, to the knowledge of any Alpha Party, threatened), nor, to the knowledge of

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any Alpha Party, is any investigation by any Governmental Entity pending or threatened (other than any such Proceeding or governmental investigation that challenges or seeks to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby), to which any Alpha Party or any of their respective Subsidiaries is a party or against any Alpha Party or any of their respective Subsidiaries or any of its or their properties or assets that (i) involves an amount in controversy in excess of $500,000, (ii) seeks injunctive or other non-monetary relief, or (iii) would have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect. As of the date hereof, there are no Proceedings pending or, to the knowledge of any Alpha Party, threatened, nor, to the knowledge of any Alpha Party, are there any investigations by any Governmental Entity pending or threatened, against any Alpha Party or any of their respective Subsidiaries challenging or seeking to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby. No Alpha Party nor any of their respective Subsidiaries nor any of their respective properties or assets is subject to any outstanding order, writ, injunction or decree of any Governmental Entity, except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)      Section 3.10(b) of the Alpha Disclosure Schedule sets forth an accurate and complete list of each Proceeding or governmental investigation resolved or settled since July 26, 2016 and prior to the date of this Agreement and requiring payment by any Alpha Party or any of their respective Subsidiaries in excess of $500,000 or involving the imposition on any Alpha Party or any of their respective Subsidiaries of injunctive or other nonmonetary relief.
(c)      Section 3.10(c) of the Alpha Disclosure Schedule sets forth an accurate and complete list of each Proceeding to which any Alpha Party or any of their respective Subsidiaries is a party or effecting any Alpha Party or any of their respective Subsidiaries or any of its or their properties or assets, in each case arising from or relating to the bankruptcy cases commenced in the United States Bankruptcy Court for the Eastern District of Virginia (“ Bankruptcy Court ”) under chapter 11 of the Bankruptcy Code and captioned as In re Alpha Natural Resources, Inc., et al., No. 15-33896 (KRH) (Bankr. E.D. Va.) (the “ Bankruptcy Cases ”).
(d)      To the knowledge of any Alpha Party, (i) no officer or director of any Alpha Party or any of their respective Subsidiaries is a defendant in any Proceeding or governmental investigation in connection with his or her status as an officer or director of any Alpha Party or any of their respective Subsidiaries, and (ii) no such Proceeding or governmental investigation is threatened in writing.
Section 3.11.      Tax Matters . (a) All material Tax Returns required by applicable Law to be filed with any Taxing Authority by or with respect to the Alpha Parties or any of their Subsidiaries since July 26, 2016 have been filed when due (taking into account extensions validly obtained) and all such Tax Returns are, or shall be at the time of filing, true, correct and complete in all material respects.

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(b)      The Alpha Parties and their Subsidiaries have paid (or have had paid on their behalf) or have withheld and remitted to the appropriate Taxing Authority all material Taxes attributable to Holdings that were due and payable since July 26, 2016 or where payment is not yet due, have established an adequate accrual, in accordance with GAAP and past custom and practice of the Alpha Parties and their Subsidiaries, for all Taxes through the end of the last period for which the Alpha Parties and their Subsidiaries ordinarily record items on their respective books and records.
(c)      There is no audit, investigation, claim, suit, proceeding or assessment in respect of Taxes or material Tax assets now pending or, to the knowledge of an Alpha Party, threatened in writing against an Alpha Party or any of its Subsidiaries.
(d)      There are no agreements or arrangements in effect to extend the period of limitations for the assessment or collection of any Tax for which an Alpha Party or any of its Subsidiaries may be liable, and there is no currently effective “closing agreement” pursuant to Section 7121 of the Code (or any similar provision of foreign, state or local Law).
(e)      No claim has been made since July 26, 2016 by any Taxing Authority in a jurisdiction where neither an Alpha Party nor any of its Subsidiaries has filed Tax Returns that an Alpha Party or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(f)      ‎Section 3.11(f) of the Alpha Disclosure Schedule contains a list of all jurisdictions (whether foreign or domestic) in which an Alpha Party or any of its Subsidiaries currently file Tax Returns.
(g)      During the five-year period ending on the date hereof, no Alpha Party or any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(h)      None of the Alpha Parties nor any of their Subsidiaries has engaged in a “listed transaction” (as defined in Treasury Regulation Section 1.6011-4).
(i)      The Alpha Parties and their Subsidiaries have withheld from payments to their employees, independent contractors, creditors, stockholders and any other applicable person (and timely paid to the appropriate Taxing Authority) all material amounts required by applicable Tax Law to be withheld and paid for all periods since July 26, 2016 through the date of this Agreement, except with respect to amounts that are being contested in good faith by appropriate proceedings, and have complied in all material respects with all applicable Laws relating to information reporting.
(j)      None of the Alpha Parties nor any of their Subsidiaries have taken or agreed to take any action, or are aware of any fact or circumstance, that would reasonably be expected to prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

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(k)      Section 3.11(k) of the Alpha Disclosure Schedule contains a list of all Tax sharing and Tax indemnification agreements entered into after July 26, 2016 and currently in effect as to which any Person other than an Alpha Party or any of its Subsidiaries is a party. There is no claim now pending or, to the knowledge of an Alpha Party, threatened in writing against an Alpha Party or any of its Subsidiaries for payment or indemnification in respect of Taxes pursuant to any such Tax sharing or Tax indemnification agreement. For purposes of this representation, commercial agreements or Contracts not primarily related to Taxes shall not be considered Tax sharing or Tax indemnification agreements
(l)      For purposes of this Agreement: “ Tax ” means (i) any tax, governmental fee or other like assessment or charge of any kind whatsoever (including withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority (a “ Taxing Authority ”) responsible for the imposition of any such tax (domestic or foreign), and any liability for any of the foregoing as transferee, and (ii) liability for the payment of any amount of the type described in clause (i) as a result of being or having been before the First Effective Time a member of an affiliated, consolidated, combined or unitary group for Tax purposes. “ Tax Return ” means any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information.
Section 3.12.      Compliance with Law . Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Subsidiary and each of their respective Subsidiaries is and has been since July 26, 2016 in compliance with all Laws applicable to the conduct of the business of any Alpha Party or any of their respective Subsidiaries or by which any assets of any Alpha Party or any of their respective Subsidiaries are bound or affected.
Section 3.13.      Permits; Surety Bonds . (a) Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect:
(i)        Each Alpha Party and each of their respective Subsidiaries have all Permits required under applicable Laws to own, lease, develop or operate their real properties and assets or to conduct their businesses as conducted on the date hereof (including Permits relating to underground mining, surface mining, highwall mining and auger mining, processing, sale or transporting of coal and coal byproducts, or activities defined under the Surface Mining Control and Reclamation Act of 1977, as amended, as “surface coal mining operations”) (collectively, the “ Alpha Permits ”) and each Alpha Permit is in full force and effect;

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(ii)    each Alpha Party and each of their respective Subsidiaries is and since July 26, 2016 has been in compliance with the terms and conditions of the Alpha Permits; and
(iii)    since July 26, 2016, no Alpha Party or any of their respective Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw, modify in any adverse respect or limit any of the Alpha Permits and, to the knowledge of any Alpha Party, there are no circumstances or conditions providing grounds for any suspension, revocation, withdrawal, adverse modification or limitation on any of the Alpha Permits.
(b)      Since July 26, 2016, no Alpha Party or any of their respective Subsidiaries has been notified in writing by the Federal Office of Surface Mining or the agency of any state administering the Surface Mining Control and Reclamation Act of 1977, as amended (or any comparable state statute) that it is (i) ineligible to receive additional surface mining Permits or (ii) under investigation to determine whether its eligibility to receive such Permits should be “permit blocked.”
(c)      Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect:
(i)          there are no applications for new Permits (for the avoidance of doubt, not including amendments, renewals, extensions or other modifications of existing Alpha Permits) other than those set forth in Section 3.13(c) of the Alpha Disclosure Schedule (the “ Alpha Permit Applications ”);
(ii)    each of the Alpha Permit Applications has been made in accordance with applicable Laws, subject to such changes as may be requested by a Governmental Entity as part of the permit review process; and
(iii)      except for changes requested by a Governmental Entity as part of the permit review process, which changes can be readily implemented by the Alpha Parties or their Subsidiaries, as applicable, no Alpha Party or any of their respective Subsidiaries has received any written notice from any Governmental Entity indicating that any of the Alpha Permit Applications will not be granted.
(d)      Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Party and their respective Subsidiaries have posted all deposits, letters of credit, trust funds, bid bonds, performance bonds, reclamation bonds and surety bonds (and all such similar undertakings) (collectively, the “ Surety Bonds ”) required to be posted in connection with their operations and pursuant to the Alpha Permits. All Surety Bonds posted by each Alpha Party and their respective Subsidiaries in connection with its respective operations are defined as the “ Alpha Surety Bonds. ” Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Party and their respective Subsidiaries is in compliance with all Alpha Surety Bonds applicable to it.

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(e)      Without limiting the generality of the foregoing, the operation of the coal mining and processing operations of each Alpha Party and their respective Subsidiaries and the state of reclamation with respect to each of their Alpha Permits is “current” with respect to the reclamation obligations required by the Alpha Permits and otherwise are in compliance with the Alpha Permits and all applicable mining, reclamation and other similar Laws, except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
Section 3.14.      Environmental Matters . (a) Except as would not reasonably be expected to be material, individually or in the aggregate, each Alpha Party and their respective Subsidiaries (x) is and since July 26, 2016 has been in compliance with applicable Environmental Laws, (y) holds and is and since July 26, 2016 has been in compliance with all Permits required under Environmental Laws for the conduct of its business and activities as currently conducted (the “ Alpha Environmental Permits ”) and (z) is and since July 26, 2016 has been in compliance with the EPA Consent Decree and all other agreements or commitments entered into with any governmental authority. All Alpha Environmental Permits are in full force and effect, and all applications, notices or other documents have been timely filed to effect timely renewal, issuance or reissuance of such Alpha Environmental Permits.
(b)      No Alpha Party or any of their respective Subsidiaries is the subject of any Environmental Claim, and no Environmental Claim is pending or, to the knowledge of any Alpha Party, threatened against any Alpha Party or any of their respective Subsidiaries or against any Person whose liability for the Environmental Claim was retained or assumed by Contract or by operation of Law or pursuant to any order issued by any Governmental Entity, in each case, by any Alpha Party or any of their respective Subsidiaries.
(c)      No Hazardous Materials are present at, on, under or emanating from any properties or facilities currently leased, operated or used or, to the knowledge of any Alpha Party, previously owned, leased, operated or used, in circumstances that would reasonably be expected to form the basis for an Environmental Claim against, or a requirement for investigation pursuant to applicable Environmental Law by, any Alpha Party or any of their respective Subsidiaries.
(d)      To the knowledge of any Alpha Party, no property presently owned, leased or operated by any Alpha Party or any of their respective Subsidiaries contains any (x) landfills, surface impoundments, disposal areas or radioactive materials (except to the extent such land use or material is allowed pursuant to applicable Permits), (y) underground storage tanks or aboveground storage tanks or (z) asbestos or asbestos-containing material, polychlorinated biphenyls, and no such property is listed or proposed for listing on the National Priorities List or any similar list issued by a Governmental Entity of sites where remedial action is or is reasonably expected to be necessary.

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(e)      No Alpha Party or any of their respective Subsidiaries has Released, disposed of, or arranged to dispose of, any Hazardous Materials in a manner, or to a location, that would reasonably be expected to result in an Environmental Claim.
(f)      No material Lien imposed by any Governmental Entity having jurisdiction pursuant to any Environmental Law is currently outstanding as to any assets owned, leased or operated by any Alpha Party or any of their respective Subsidiaries except for Liens imposed in connection with any Alpha Surety Bonds.
(g)      Except for Alpha Surety Bonds posted in the ordinary course of business and the surety agreements related thereto, no financial assurance obligation is in force as to any property or facility owned, leased or operated by any Alpha Party or any of their respective Subsidiaries.
(h)      Each Alpha Party and their respective Subsidiaries have no obligation or liability by Contract relating to or arising under Environmental Law.
(i)      For purposes of the Agreement:
(i)          “ Environment ” means any ambient, workplace or indoor air, surface water, drinking water, groundwater, land surface (whether below or above water), subsurface strata, sediment, plant or animal life, natural resources, and the sewer, septic and waste treatment, storage and disposal systems servicing real property or physical buildings or structures.
(ii)      “ Environmental Claim ” means any claim, cause of action, investigation (other than an investigation voluntarily conducted or commissioned by the subject of such investigation) or notice by any Person, including any Governmental Entity having jurisdiction, alleging potential liability (including potential liability for investigatory costs, cleanup or remediation costs, governmental or third party response costs, natural resource damages, property damage, personal injuries, or fines or penalties) based on or resulting from (A) the presence or Release of, or exposure to, any Hazardous Materials at any location, or (B) any Environmental Law, including the alleged or actual violation thereof.
(iii)      “ Environmental Law ” means any Law (including common law) or any binding Contract, memorandum of understanding or commitment letter issued or entered by or with any Governmental Entity or Person relating to: (A) the Environment, including pollution, contamination, cleanup, preservation, protection and reclamation of the Environment, (B) the protection of human health or the exposure of employees or third parties to any Hazardous Materials, (C) any Release or threatened Release of any Hazardous Materials, including investigation, assessment, testing, monitoring, containment, removal, remediation and cleanup of any such Release or threatened Release, (D) the management of any Hazardous Materials, including the use, labeling, processing, disposal, storage, treatment, transport, or recycling of any Hazardous Materials,

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or (E) the presence of Hazardous Materials in any building, physical structure, product or fixture.
(iv)      “ Hazardous Materials ” means all materials, chemicals, wastes, compounds and substances in any form defined as Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.5, toxic mold, or otherwise regulated or defined as hazardous, toxic or words of similar import under any Environmental Law.
(v)      “ Release ” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor Environment, or into or out of any property, including movement through air, soil, surface water, groundwater or property.
Section 3.15.      Intellectual Property . (a) Each Alpha Party and their respective Subsidiaries own or possess, or are validly licensed or otherwise have the right to obtain ownership or possession and to currently use, any and all patents, patent rights, inventions and discoveries (whether or not patentable or reduced to practice), trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, Copyrights, trade secrets, licenses and all other confidential or proprietary information and know-how, whether or not reduced to writing or any other tangible form, and any and all other proprietary intellectual property rights arising under the Laws of the United States (including any state or territory), any other country or group of countries or any political subdivision of any of the foregoing, whether registered or unregistered, and registrations and applications for registration of any of the foregoing (collectively, “ Intellectual Property Rights ”) used or held for use in, or otherwise reasonably necessary for, the conduct of the business of any Alpha Party or any of their respective Subsidiaries (the “ Alpha Intellectual Property ”).
(b)      Except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect, (i) the Alpha Parties and their respective Subsidiaries are the sole and exclusive owners of all Intellectual Property Rights owned or purported to be owned by any Alpha Party or by a Subsidiary of any Alpha Party (collectively, “ Alpha Owned Intellectual Property ”) and no such Alpha Owned Intellectual Property (A) is the subject of any pending or, to the knowledge of any Alpha Party, threatened interference, opposition or other Proceeding or (B) has been adjudged invalid or unenforceable in whole or part, (ii) the conduct of the business of the Alpha Parties or their respective Subsidiaries does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any third party, and (iii) the execution, delivery and performance of this Agreement by the Alpha Parties and the consummation of the transactions contemplated hereby will not cause the forfeiture or termination or give rise to a right of forfeiture or termination of any of the Alpha Intellectual Property, impair the right of any Alpha Party or a Subsidiary of any Alpha Party to make, use, sell, license, dispose of or otherwise exploit, or to bring any action for the infringement, misappropriation or other violation of, any Alpha Owned Intellectual Property, or impair

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the right of any Alpha Party or any of their respective Subsidiaries to use the Alpha Owned Intellectual Property in the conduct of their businesses as currently conducted.
(c)      The Alpha Parties and their respective Subsidiaries have used commercially reasonable efforts to maintain, protect, defend and enforce all material Alpha Owned Intellectual Property; provided that, without limiting Section 5.01, nothing herein shall be deemed to have required an Alpha Party or Subsidiary thereof to register or apply to register or to maintain, protect, defend or enforce any Alpha Owned Intellectual Property, except where the failure to do so would result in an Alpha Material Adverse Effect.
(d)      No Alpha Party or any of their respective Subsidiaries is experiencing any material defects in the Computer Software or hardware used in its business as it is currently conducted, including any material error or omission in the processing of any transactions.
(e)      For the purposes of this Agreement, “ Computer Software ” means all computer software (including programs and applications, object and source code, databases, algorithms, and documentation therefor, in each case including all Copyrights therefor), and “ Copyrights ” means all works of authorship, whether copyrightable or not, copyrights, and mask works, and registrations and applications for registration of any of the foregoing.
Section 3.16.      Real Property; Personal Property . (a) For the purpose of the Agreement:
(i)      “ Alpha Owned Real Property ” means all real property and other right, title and other interests in land, including coal, mineral, mining, water and surface rights, easements, rights of way and options, owned by any Alpha Party or any of their respective Subsidiaries, together with all improvements and fixtures located thereon or appurtenant thereto;
(ii) “ Alpha Leased Real Property ” means all real property and other right, title and other interests in land, including coal, mineral, mining, water and surface rights, easements, rights of way and options, leased, subleased, licensed or otherwise used by any Alpha Party or any of their respective Subsidiaries as lessee, licensee or grantee (each such lease, sublease, license or other use agreement, an “ Alpha Lease ”), together with all improvements and fixtures located thereon or appurtenant thereto; and
(iii) “ Alpha Real Property ” means the Alpha Owned Real Property and the Alpha Leased Real Property.
(b)      ‎Section 3.16(b) of the Alpha Disclosure Schedule sets forth a true, accurate and complete list of all Alpha Owned Real Property with a value of $1,000,000 or more. (i) The Alpha Real Property includes all of the land, buildings, structures and fixtures located thereon and all easements, rights of way, options, coal, mineral, mining, water,

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surface and other rights and interests appurtenant thereto necessary for the use by any Alpha Party and their respective Subsidiaries in the conduct of their business as currently conducted in all material respects; (ii) an Alpha Party or one of their Subsidiaries has good and marketable title to, or has a valid leasehold interest in, all Alpha Real Property (subject in all cases to Permitted Liens), except where the failure to have such title or interest could not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect; (iii) all Alpha Owned Real Property is owned by an Alpha Party or one of their Subsidiaries, free and clear of all Liens other than Permitted Liens or any other Liens that would not have, individually or in the aggregate, an Alpha Material Adverse Effect; (iv) an Alpha Party or one of their Subsidiaries has a valid leasehold interest in or easement or other property interest in, and to, and enjoys peaceful and undisturbed possession of all Alpha Leased Real Property on which it is currently conducting operations and, except where the failure to have such possession would not have, individually or in the aggregate, an Alpha Material Adverse Effect, each Alpha Party and their respective Subsidiaries has complied with all of its obligations under such leases and all such Leases are in full force and effect and are free and clear of all Liens other than Permitted Liens; and (v) an Alpha Party or one of their Subsidiaries has adequate rights of ingress and egress to all Alpha Real Property on which it is currently conducting operations, except where the failure to have such access would not have, individually or in the aggregate, an Alpha Material Adverse Effect, sufficient to access and exercise its rights with respect to such Alpha Real Property.
(c)      With respect to the Alpha Real Property:
(i)        to the knowledge of any Alpha Party, there are no pending or threatened Proceedings to take all or any portion of the Alpha Real Property or any interest therein by eminent domain or any condemnation proceeding or any sale or disposition in lieu thereof;
(ii)    there are no outstanding options, rights of reverter, rights of first offer, rights of first refusal or contracts granted by any Alpha Party or any of their respective Subsidiaries to purchase or lease any material portion of such Alpha Real Property (other than such options or rights granted in the ordinary course of business);
(iii)    there are no leases or other contracts granting to any Person (other than any Alpha Party or any of their respective Subsidiaries) the right of use or occupancy of any material portion of any Alpha Real Property, other than those granted or incurred in the ordinary course of business, that do not, in the aggregate, interfere in any material respect with the ordinary conduct of the business of the Alpha Parties or their respective Subsidiaries at the Alpha Real Property affected thereby;
(iv)    all material buildings, structures, fixtures, building systems and equipment included in the Alpha Real Property that are currently in use (the “ Alpha Improvements ”) are in operating condition in all material respects, subject to reasonable wear and tear, and, to the knowledge of any Alpha Party,

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there are no facts or conditions affecting any of the Alpha Improvements that would materially and adversely interfere with the use or occupancy of the Alpha Improvements or any portion thereof in the operation of the business of the Alpha Parties and their respective Subsidiaries as presently conducted thereon;
(v)    to the knowledge of any Alpha Party, the present use of the Alpha Real Property (including the Alpha Improvements) is, and the Alpha Improvements themselves are, in substantial conformity with all recorded deeds, restrictions of record and other agreements affecting such Alpha Real Property, and to the knowledge of any Alpha Party there are no material violations thereof;
(vi)    to the knowledge of any Alpha Party, there are no currently proposed or pending assessments materially and adversely affecting the Alpha Real Property, whether for public improvements or otherwise;
(vii)    there are no outstanding Contracts or other obligations (including options) entered into by any Alpha Party or any of their respective Subsidiaries for the sale, exchange, encumbrance or transfer of any of the Alpha Real Property, or any portion of it, that are material to the Alpha Parties and their respective Subsidiaries taken as a whole; and
(viii)    to the knowledge of any Alpha Party, with respect to each Alpha Real Property on which significant surface Alpha Improvements are located, there are no rights or claims of parties in possession not shown by the public records, encroachments, overlaps, boundary line disputes or other matters which would be disclosed by an accurate survey or inspection of the premises except as could not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(d)      To the knowledge of any Alpha Party, the coal reserves currently mined by the Alpha Parties and their respective Subsidiaries that are owned or leased by any of them are not subject to the mining rights of any other Person with respect to such coal reserves and no Alpha Party or any of their respective Subsidiaries has received a notice of claim to such effect, and the Alpha Parties have sufficient rights to access and mine such coal reserves.
(e)    The Alpha Parties and their Subsidiaries are in possession of and have good and marketable title to, or have valid leasehold interests in, all tangible personal property used in the business of the Alpha Parties and their Subsidiaries, except as could not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect. All such tangible personal property is owned by an Alpha Party or one of their Subsidiaries, free and clear of all Liens other than Permitted Liens, or, to the knowledge of any Alpha Party, is leased under a valid and subsisting lease and, in each case, is in operating condition, ordinary wear and tear excepted.
Section 3.17.      Material Contracts . (a) Section 3.17(a) of the Alpha Disclosure Schedule lists, and ANR has made available to Contura prior to the date of this

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Agreement, true, correct and complete copies of, any of the following Contracts to which any Alpha Party or any of their respective Subsidiaries is a party or by which any Alpha Party, any of their respective Subsidiaries or any of their respective assets is bound, as of the date hereof:
(i)    that would be required to be filed by any Alpha Party as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act if such Alpha Party were subject to the filing or disclosure requirements under Regulation S-K under the Securities Act, or that would be required to be disclosed by any Alpha Party on a Current Report on Form 8-K if such Alpha Party were subject to the disclosure requirements under the Exchange Act;
(ii)      that contains covenants that limit the ability of any Alpha Party or any of their respective Subsidiaries (or which, following the consummation of the transactions contemplated by this Agreement, could reasonably be expected to restrict the ability of Contura or any of its Affiliates) to compete in any business or with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that would reasonably be expected to be material;
(iii)      that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation or control of any partnership or joint venture or similar entity or arrangement (other than any partnership or limited liability company operating agreement of a direct or indirect wholly-owned Subsidiary of any Alpha Party) or pursuant to which any Alpha Party or any of their respective Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(iv)      that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case, that is material to the business of the Alpha Parties and their respective Subsidiaries, taken as a whole;
(v)      that relates to (A) Indebtedness under which any Alpha Party and/or any of their respective Subsidiaries has outstanding obligations in excess of $1,000,000 or (B) conditional or similar sale arrangements in connection with which the aggregate actual or contingent obligations of the Alpha Parties and their Subsidiaries under such Contract are greater than $1,000,000;
(vi)      under which (A) to the knowledge of any Alpha Party, any Person has guaranteed any liabilities or obligations of any Alpha Party or their

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respective Subsidiaries (other than any such guarantees by any Alpha Party or their respective Subsidiaries), in case of each such liability or obligation, in an amount in excess of $1,000,000, or (B) any Alpha Party or any of their respective Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than any Alpha Party or any of their respective Subsidiaries);
(vii)      for the purchase and sale of coal under which (x) the aggregate amounts to be paid by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period;
(viii)      under which (x) the aggregate amounts to be paid by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by the Alpha Parties and their respective Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period, in each case, other than (1) the Alpha Material Contracts described in Section ‎3.17(a)(vii) and (2) purchase orders for the purchase of goods or services in the ordinary course of business;
(ix)      any Alpha Interested Party Agreement;
(x)      that relates to the ownership, lease or use of space at ANR’s headquarters located at 636 Shelby Street, 3 rd Floor, Bristol, Tennessee;
(xi)      any Alpha Lease involving royalty payments of $500,000 or more per year;
(xii)      which is (i) a written employment agreement with any Alpha Service Provider that is not terminable on sixty (60) days' notice or less without penalty, liability or premium (including severance due upon a termination of employment) or (ii) a change in control, transaction bonus, retention bonus or other similar agreement with any Alpha Service Provider that requires a payment as a result, either alone or in combination with any other event, of the completion of the transactions contemplated hereby;
(xiii)      under which any Alpha Party or any Subsidiary thereof has granted or received a license or sublicense with respect to any Intellectual Property Right that is material to the operation of the business of such Alpha Party or such Subsidiary, and for this purpose, specifically excluding any (A) non-exclusive, end-user license for computer software that is generally commercially available (except if the failure of such Alpha Party or such Subsidiary to have such non-

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exclusive end-user license would result in an Alpha Material Adverse Effect) and (B) non-exclusive license or sublicense granted by any Alpha Party or any Subsidiary thereof in the ordinary course of business consistent with past practice;
(xiv)      that is otherwise material to the Alpha Parties or their Subsidiaries; or
(xv)      that would or would reasonably be expected to prevent or materially delay any Alpha Party’s ability to consummate the transactions contemplated by this Agreement.
Each Contract of the type described in clauses ‎(i) through ‎(xv) is referred to herein as an “ Alpha Material Contract. ”
(b)      Each Alpha Material Contract is valid and binding on any Alpha Party and any of their respective Subsidiaries that is a party thereto and, to the knowledge of any Alpha Party, each other party thereto and is in full force and effect. There is no default under any Alpha Material Contract by any Alpha Party or any of their respective Subsidiaries or, to the knowledge of any Alpha Party, by any other party, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by any Alpha Party or any of their respective Subsidiaries or, to the knowledge of any Alpha Party, by any other party, in each case except as would not have or reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(c)      No Alpha Party or any of their respective Subsidiaries is party to any Contract that prohibits any Alpha Party from providing to Contura the information described in ‎Section 5.03(c).
(d)      The information set forth under Section 3.17(d) of the Alpha Disclosure Schedule is true and correct in all material respects.
Section 3.18.      Insurance . The Alpha Parties and their respective Subsidiaries are covered by valid and currently effective insurance policies issued in favor of the Alpha Parties and their respective Subsidiaries that are customary and adequate for companies of similar size in the industries and locales in which the Alpha Parties and their Subsidiaries operate. Section 3.18 of the Alpha Disclosure Schedule sets forth, as of the date hereof, a true, correct and complete list of all material insurance policies issued in favor of any Alpha Party, or pursuant to which any Alpha Party or any of their respective Subsidiaries is a named insured or otherwise a beneficiary, as well as any historic incurrence-based policies still in force. With respect to each such insurance policy, (i) the policy is in full force and effect and all premiums due thereon have been paid, (ii) no Alpha Party is in material breach or default, and no Alpha Party or any of their respective Subsidiaries has taken any action or failed to take any action which with notice or the lapse of time would constitute such a material breach or default, or permit termination or modification of, any such policy, and (iii) to the knowledge of any Alpha Party as of the

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date hereof, no insurer on any such policy has been declared insolvent or placed in receivership, conservatorship or liquidation, and no written notice of cancellation or termination has been received with respect to any such policy.
Section 3.19.      Suppliers and Customers . Section 3.19 of the Alpha Disclosure Schedule sets forth the names of the 10 largest suppliers of the Alpha Parties and their Subsidiaries (as measured by aggregate cost of items or services purchased for the twelve-month period ended on the Balance Sheet Date). To the knowledge of any Alpha Party, no Alpha Party or any of their respective Subsidiaries (a) has been notified in writing of any dispute with any such supplier or with any of the 10 largest customers of the Alpha Parties and their Subsidiaries (as measured by revenue for the twelve-month period ended on the Balance Sheet Date) or (b) has been notified in writing by any such customer or supplier that it intends or is threatening to terminate or otherwise adversely alter the terms of its business with any Alpha Party or any of their respective Subsidiaries.
Section 3.20.      Questionable Payments . No Alpha Party or any of their respective Subsidiaries (nor, to the knowledge of any Alpha Party, any of their respective directors, executives, representatives, agents or employees) (a) is using or since July 26, 2016 has used any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) is using or since July 26, 2016 has used any corporate funds for any direct or indirect unlawful payments to any foreign or domestic government officials or employees, (c) is violating or since July 26, 2016 has violated, in any material respect, any provision of the Foreign Corrupt Practices Act of 1977, as amended, (d) since July 26, 2016, has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties, or (e) since July 26, 2016, has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.
Section 3.21.      Interested Party Agreements . As of the date hereof, there are no Contracts between any Alpha Party or any of their respective Subsidiaries, on the one hand, and (i) any holder of equity interests in any Alpha Party, (ii) any current or former director, officer or employee of any Alpha Party or any of their respective Affiliates, other than Contracts relating to compensation or benefits pursuant to any ANR Plan or (iii) any Affiliate or any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any Person described in the foregoing clauses (i) and (ii), on the other hand (each such Contract, an “ Alpha Interested Party Agreement ”).
Section 3.22.      Required Vote of Stockholders . (a) The only vote of the holders of securities of Holdings required by the Holdings Certificate of Incorporation, the Holdings Bylaws, by Law or otherwise to complete the Holdings Merger is the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this Agreement by the affirmative vote of the holders of not less than a majority of the outstanding shares of Holdings Common Stock, voting together as a single class. The adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the Holdings Merger contained in this

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Agreement by the vote described in the previous sentence is referred to as the “ Holdings Stockholder Approval. ”
(b)      The only vote of the holders of securities of ANR required by the ANR Certificate of Incorporation, the ANR Bylaws, by Law or otherwise to complete the ANR Merger is the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement by the affirmative vote of the holders of outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock, voting together as a single class, representing a majority of the votes entitled to be cast by all outstanding shares of Class C-1 Common Stock and Class C-2 Common Stock. The adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) as it relates to the ANR Merger contained in this Agreement by the vote described in the previous sentence is referred to as the “ ANR Stockholder Approval ”, and together with the Holdings Stockholder Approval is referred to as the “ Alpha Stockholder Approvals ”.
Section 3.23.      Takeover Laws, Etc . The Holdings Board and ANR Board have taken appropriate action so that the restrictions on “business combinations” set forth in Section 203 of the DGCL or any other “moratorium,” “control share,” “fair price,” “takeover” or “interested stockholder” Law (any such laws, “ Takeover Laws ”) will not apply with respect to, or as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
Section 3.24.      Opinions of Financial Advisors . Prior to the execution of this Agreement, (i) Moelis & Company (the “ ANR Financial Advisor ”) has delivered to the ANR Board its opinion, to the effect that, as of the date of such opinion and based upon and subject to the assumptions, limitations, qualifications and other matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to the holders of Class C-1 Common Stock and (ii) Berkeley Research Group, LLC (the “ Holdings Financial Advisor ”) has delivered to the Holdings Board its written opinion, dated the date of this Agreement, to the effect that, as of such date and based upon and subject to the assumptions, limitations, qualifications and other matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to the stockholders of Holdings. Promptly following receipt of the opinion by the Holdings Board and the ANR Board, a true, correct and complete copy of each opinion will be delivered to Contura for informational purposes only.
Section 3.25.      Brokers; Certain Fees . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by and on behalf of the Alpha Parties or any of their respective Subsidiaries, except as provided in the letter agreements between the applicable Alpha Party and the ANR Financial Advisor or the Holdings Financial Advisor, as applicable, complete and correct copies of which were delivered to Contura prior to the date of this Agreement.
Section 3.26.      Qualified Buyer . Each Alpha Party has determined, in accordance with the terms of the Bankruptcy Plan, that Contura constitutes a Qualified Buyer (as

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such term is defined in the Bankruptcy Plan), including for all purposes under Section IV.G of the Bankruptcy Plan.
Section 3.27.      No Other Representations; Disclaimer . (a) Except for the representations and warranties made by the Alpha Parties in this Agreement, no Alpha Party or any other Person makes any express or implied representation or warranty with respect to the Alpha Parties or their respective Subsidiaries or their respective business, operations, assets, liabilities, condition (financial or otherwise) or prospects, and the Alpha Parties hereby disclaim any such other representations or warranties, including any representation or warranty regarding merchantability or fitness for a particular purpose. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by the Alpha Parties in this Agreement, no Alpha Party nor any other Person makes or has made any representation or warranty to Contura or any of its Affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to any Alpha Party, any of their respective Subsidiaries or their respective businesses, or (ii) any oral or written information presented to Contura or any of its Affiliates or representatives in the course of their due diligence investigation of the Alpha Parties, the negotiation of this Agreement or in the course of the transactions contemplated hereby.
(a)      Notwithstanding anything contained in this Agreement to the contrary, each Alpha Party acknowledges and agrees that neither Contura nor any other Person has made or is making any representations or warranties whatsoever, express or implied, beyond those expressly given by Contura in this Agreement, including any implied representation or warranty as to the accuracy or completeness of any information regarding Contura furnished or made available to the Alpha Parties, or any of their representatives or any representation or warranty regarding merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, each Alpha Party acknowledges that, except for the representations and warranties made by Contura in this Agreement, no representations or warranties are made by Contura or any other Person with respect to any projections, forecasts, estimates, budgets or prospect information that may have been made available to any Alpha Party or any of their representatives.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CONTURA
Except as disclosed in the correspondingly numbered section of the disclosure letter dated the date of this Agreement and delivered by Contura to ANR with respect to this Agreement immediately prior to the execution of this Agreement (the “ Contura Disclosure Schedule ”) (provided, however, that a matter disclosed in the Contura Disclosure Schedule with respect to one representation or warranty shall also be deemed to be disclosed with respect to each other representation or warranty to the extent it is reasonably apparent from the text of such disclosure that such disclosure applies to or qualifies such other representation or warranty), Contura represents and warrants to each Alpha Party as follows:

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Section 4.01.      Organization and Qualification. (a) Contura is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, with all requisite corporate power and authority to own its properties and conduct its business as currently conducted. Each Subsidiary of Contura is a duly organized and validly existing entity in good standing (where applicable) under the Laws of its jurisdiction of organization, with all requisite entity power and authority to own its properties and conduct its business as currently conducted. Contura and each Subsidiary of Contura is duly qualified and in good standing as a foreign corporation or entity authorized to do business in each of the jurisdictions in which the character of the properties owned or held under lease by it or the nature of the business transacted by it makes such qualification necessary, except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(a)      Contura has heretofore made available to ANR true, correct and complete copies of the restated certificate of incorporation and bylaws of Contura as in effect on the date hereof, including all amendments thereto (respectively, the “ Contura Certificate of Incorporation ” and “ Contura Bylaws ”).
(b)      MergerSub 1 is a direct, wholly owned Subsidiary of Contura, does not own any assets other than the capital stock of MergerSub 2 and has been organized solely for the purpose of consummating the transactions contemplated herein. MergerSub 1 does not have, and has never had, any employees, and does not conduct, and has never conducted, any activities, business or other operations, and has incurred no liabilities or obligations, in each case other than those incident to its incorporation and organization and ownership of MergerSub 2’s capital stock and its obligations hereunder. MergerSub 2 is a direct, wholly owned Subsidiary of MergerSub 1, does not own any assets and has been organized solely for the purpose of consummating the transactions contemplated herein. MergerSub 2 does not have, and has never had, any employees, and does not conduct, and has never conducted, any activities, business or other operations, and has incurred no liabilities or obligations, in each case other than those incident to its incorporation and organization and its obligations hereunder.
Section 4.02.      Capitalization . (a) The authorized capital stock of Contura consists of (i) (A) as of the date hereof, 20,000,000 shares of Contura Common Stock and (B) if Contura’s stockholders approve the Contura Charter Amendment, as of the Closing Date, 55,000,000 shares of Contura Common Stock; and (ii) (A) 2,000,000 shares of preferred stock, par value $0.01 per share, of Contura (the “ Contura Preferred Stock ”), of which no Contura Preferred Stock have been designated as to series and (B) if Contura’s stockholders approve the Contura Charter Amendment, as of the Closing Date, 5,000,000 shares of Contura Preferred Stock. As of the close of business on the Capitalization Date, (A) 9,870,350 shares of Contura Common Stock and no shares of Contura Preferred Stock were issued and outstanding, (B) 911,848 shares of Contura Common Stock and no shares of Contura Preferred Stock were held in Contura’s treasury, and (C) 71,968 shares of Contura Common Stock and no shares of Contura Preferred Stock were issuable under the Contura Plans. All of the outstanding shares of Contura Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. As of the close of business on the

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Capitalization Date, there are 922,280 shares of Contura Common Stock subject to issuance upon exercise of outstanding warrants to purchase shares of Contura Common Stock.
(b)      Section 4.02(b) of the Contura Disclosure Schedule contains a true, correct and complete list, as of the Capitalization Date, of each outstanding option to purchase shares of Contura Common Stock granted pursuant to a Contura Plan (a “ Contura Stock Option ”) and other equity-based award (including under any deferred compensation plan or arrangement) outstanding, the number of shares of Contura Common Stock issuable thereunder or to which such award pertains, the expiration date, and the exercise or conversion price, if applicable, related thereto and, if applicable, the Contura Plan pursuant to which each such Contura Stock Option or other equity-based award was granted. Since the Capitalization Date, Contura has not issued any shares of Contura Common Stock (other than the issuance of Contura Common Stock permitted by ‎Section 5.02 or upon the exercise of Contura Stock Options outstanding on the Capitalization Date in accordance with their terms), has not granted any other Contura Securities or entered into any other agreements or commitments to issue any Contura Securities, and has not split, combined or reclassified any shares of its capital stock.
(c)      Except as set forth in ‎Section 4.02(a) and except for the Contura Stock Options and other equity-based awards set forth in Section 4.02(b) of the Contura Disclosure Schedule, there are no outstanding (i) securities of Contura or any of its Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in Contura, (ii) options, restricted stock warrants, rights or other agreements or commitments to acquire from Contura or any of its Subsidiaries, or obligations of Contura or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) Contura, or bonds, debentures, notes or other evidences of Indebtedness having the right to vote on any matters on which stockholders of Contura may vote, (iii) obligations (contingent or otherwise) of Contura or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in Contura (the items in clauses ‎(i), ‎(ii) and ‎(iii), together with the capital stock of Contura, being referred to collectively as “ Contura Securities ”), or (iv) obligations (contingent or otherwise) of Contura or any of its Subsidiaries to make any payments directly or indirectly based (in whole or in part) on the price or value of any Contura Securities. There are no outstanding obligations, commitments or arrangements, contingent or otherwise, of Contura or any of its Subsidiaries to purchase, redeem or otherwise acquire any Contura Securities. There are no voting trusts or other agreements or understandings to which Contura or any of its Subsidiaries is a party (or, to the knowledge of Contura, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of Contura.
(d)      Section 4.02(d) of the Contura Disclosure Schedule sets forth a complete and accurate list of the Subsidiaries of Contura. Contura, alone or together with one or more of its wholly owned Subsidiaries, is the record and beneficial owner of all the

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equity interests of each of its Subsidiaries, in each case free and clear of any Lien (other than Liens arising under applicable securities Laws). With respect to each Subsidiary of Contura, there are no outstanding (i) securities of Contura or any of its Subsidiaries convertible into or exchangeable for shares of capital stock, voting securities or other ownership interests in any Subsidiary of Contura, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from Contura or any of its Subsidiaries, or obligations of Contura or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities or other ownership interests in) any Subsidiary of Contura, (iii) obligations of Contura or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of Contura (the items in clauses ‎(i), ‎(ii) and ‎(iii), together with the capital stock or other equity interests of such Subsidiaries, being referred to collectively as “ Contura Subsidiary Securities ”), or (iv) obligations of Contura or any of its Subsidiaries to make any payment directly or indirectly based (in whole or in part) on the price or value of any Contura Subsidiary Securities. There are no outstanding obligations, contingent or otherwise, of Contura or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Contura Subsidiary Securities. There are no voting trusts or other agreements or understandings to which Contura or any of its Subsidiaries is a party (or, to the knowledge of Contura, to which any other Person is a party) with respect to the voting of capital stock or other voting securities of any Subsidiary of Contura. Prior to the date hereof, Contura has made available to ANR complete and accurate copies of the charter and bylaws or other organizational documents of each Subsidiary of Contura.
(e)      Contura does not control, directly or indirectly, or have any direct or indirect equity participation or similar interest in any entity which is not a Subsidiary of Contura.
Section 4.03.      Authority for this Agreement; Board Action . (a) Contura, MergerSub 1 and MegerSub 2 (the “ Contura Parties ”) have all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby to which Contura is a party. The execution and delivery of this Agreement by the Contura Parties and the consummation by the Contura Parties of the transactions contemplated hereby have been duly and validly authorized by the board of directors of each Contura Party, as applicable, and no other corporate proceedings on the part of any Contura Party are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, other than the approval of the Contura Charter Amendment. This Agreement has been duly and validly executed and delivered by each Contura Party and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of each Contura Party, enforceable against such Contura Party in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

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(b)      The board of directors of each Contura Party has (i) determined that this Agreement and the transactions contemplated hereby are advisable and fair to, and in the best interests of, each Contura Party, as applicable, and their respective stockholders, as applicable, and (ii) adopted and approved this Agreement and the transactions contemplated hereby.
Section 4.04.      Consents and Approvals; No Violation . (a) Neither the execution and delivery of this Agreement by the Contura Parties nor the consummation of the transactions contemplated hereby by the Contura Parties will (i) violate or conflict with or result in any breach of any provision of the Contura Certificate of Incorporation or the Contura Bylaws or the certificate of incorporation or bylaws of any other Contura Party, (ii) assuming all consents, approvals and authorizations contemplated by clauses ‎(iii) through ‎(iv) of ‎Section 4.04(b) have been obtained, and all filings described in such clauses have been made, in any material respect conflict with or violate any Law applicable to Contura or any of its Subsidiaries or by which any of their respective assets are bound, (iii) violate, conflict with or result in a breach of, or require any consent, waiver or approval under, or result in a default or give rise to any right of termination, cancellation, modification or acceleration (or an event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under, any of the terms, conditions or provisions of any Contract to which Contura or any of its Subsidiaries is a party or by which Contura or any of its Subsidiaries or any of their respective assets are bound, or (iv) result (or, with the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Lien on any asset of Contura or any of its Subsidiaries, except in the case of clauses ‎(iii) and ‎(iv), as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(b)      The execution, delivery and performance of this Agreement by the Contura Parties and the consummation of the transactions contemplated hereby do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except (i) the pre-merger notification requirements under the HSR Act, (ii) the filing with the SEC of the Form S-4 and such other reports and filings as are required under the Exchange Act and the rules and regulations promulgated thereunder, (iii) the filing of the Certificates of Merger and the Contura Charter Amendment with the Secretary of State as required by the DGCL, (iv) such governmental consents, qualifications or filings as are customarily obtained or made in connection with the transfer of interests or the change of control of ownership in coal mining properties, including notices and consents relating to or in connection with mining, reclamation, nuclear material, radio communications and environmental Permits, in each case under the applicable Laws of Virginia, West Virginia, Pennsylvania, Wyoming and the United States of America, and (v) any such consent, approval, authorization, permit, filing, or notification the failure of which to make or obtain would not have or reasonably be expected to be material.
Section 4.05.      Reports; Financial Statements . (a) All of the Subsidiaries of Contura are consolidated for accounting purposes. Contura has delivered to ANR the audited consolidated financial statements (including the related notes thereto) of Contura

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for the fiscal year ended December 31, 2017 (the “ Contura Financial Statements ”), and the Contura Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Contura and its Subsidiaries as of their respective dates, and the consolidated income, stockholders’ equity, results of operations and changes in consolidated financial position or cash flows for the periods presented therein.
(b)      The records, systems, controls, data and information of Contura and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Contura or their accountants (including all means of access thereto and therefrom), except for any nonexclusive ownership and nondirect control that has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the system of internal accounting controls described below in this Section. Contura has implemented and maintain a system of internal controls that is designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements for external purposes in accordance with GAAP, and such system of internal controls is effective. Contura has disclosed, based on its most recent evaluation of its system of internal controls prior to the date of this Agreement, to their outside auditors and the audit committee of the Contura Board (A) any significant deficiencies and material weaknesses in the design or operation of its internal controls that would reasonably be expected to adversely affect Contura’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Contura’s internal controls over financial reporting. Prior to the date hereof, a true, correct and complete summary of any such disclosures made to Contura’s auditors and the audit committee of the Contura Board has been provided to ANR.
(c)      Since July 26, 2016, neither Contura nor any of its Subsidiaries nor, to the knowledge of Contura, any director, officer, employee, auditor, accountant or representative of Contura or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of Contura or any of their Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Contura or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and no attorney representing Contura or any of its Subsidiaries, whether or not employed by Contura or any of its Subsidiaries, has reported evidence of a material violation of securities Law, breach of fiduciary duty or similar violation by Contura or any of its Subsidiaries or any of its officers, directors, employees or agents to the Contura Board or any committee thereof or to any director or officer of Contura or any of its Subsidiaries.
(d)      Neither Contura nor any of its Subsidiaries has any liabilities of any nature, whether accrued, absolute, fixed, contingent or otherwise, known or unknown, whether

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due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP, other than liabilities (a) as and to the extent reflected or reserved against on the consolidated balance sheet of Contura dated as of the Balance Sheet Date included in the Contura Financial Statements, (b) incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date, or (c) that would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
Section 4.06.      Absence of Certain Changes . (a) Since the Balance Sheet Date, Contura and its Subsidiaries have conducted their business only in the ordinary course consistent with past practice, and neither Contura nor any of its Subsidiaries has taken any action since the Balance Sheet Date that, if taken after the date of this Agreement without the prior written consent of Alpha, would constitute a breach of ‎Section 5.02.
(b)      Since the Balance Sheet Date, there has not been any change, effect, event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
Section 4.07.      Information Supplied; Joint Proxy Statement . None of the information supplied or to be supplied in writing by or on behalf of Contura for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Joint Proxy Statement will, at the date such Joint Proxy Statement is first mailed to the Alpha Parties’ stockholders or at the time of the Alpha Special Meetings, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing provisions of this Section 4.07, no representation or warranty is made by Contura with respect to information or statements made or incorporated by reference in the Form S-4 or the Joint Proxy Statement that were not supplied in writing by or on behalf of Contura.
Section 4.08.      Employee Benefits Matters . (a) Section 4.08(a) of the Contura Disclosure Schedule contains a true, correct and complete list of all Contura Plans in effect on the date hereof. Prior to the date of this Agreement, Contura has provided or made available to Alpha true, correct and complete copies as in effect on the date hereof of each of the following with respect to each such Contura Plan, as applicable: (i) the plan document or agreement or, with respect to any Contura Plan that is not in writing, a description of the material terms thereof; (ii) any summary plan description required to be furnished to participants pursuant to ERISA (iii) the most recent annual report, actuarial report, financial report and/or communication to the U.S. Department of Labor or the Pension Benefit Guaranty Corporation, if any; (iv) all amendments or modifications to any such documents; (v) the most recent determination letter received from the Internal Revenue Service with respect to each Contura Plan that is intended to be a “qualified plan” under Section 401 of the Code; and (vi) the most recent required Internal Revenue Service Form 5500, including all schedules thereto.

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(b)      Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, with respect to each Contura Plan, (i) since July 26, 2016, all expenses, contributions, premiums or payments required to be made to, under or with respect to such Contura Plan have been timely made and all amounts properly accrued to date or as of the Closing as liabilities of Contura or any of its Subsidiaries which are not yet due have been properly recorded on the books of Contura and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of Contura, (ii) since July 26, 2016, each such Contura Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) and intended to qualify under Section 401 of the Code has received a favorable determination letter from the Internal Revenue Service with respect to such qualification, and, to the knowledge of Contura, nothing has occurred since the date of such letter that has affected, or would reasonably be expected to adversely affect, such qualification, (iii) since July 26, 2016, with respect to any Contura Plan maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied, (iv) there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of Contura, threatened or anticipated with respect to such Contura Plan, any fiduciaries of such Contura Plan with respect to their duties to any Contura Plan, or against the assets of such Contura Plan or any trust maintained in connection with such Contura Plan, (v) since July 26, 2016, such Contura Plan has been operated and administered in compliance in all material respects with its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of Contura there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the posting of security with respect to an Contura Plan or the imposition of any pledge, lien, security interest or encumbrance on the assets of Contura or any of its Subsidiaries or any of their respective ERISA Affiliates under ERISA or the Code, or similar Laws of foreign jurisdictions.
(c)      Neither Contura nor any of its Subsidiaries nor any of their ERISA Affiliates, (i) has, since July 26, 2016, sponsored, maintained or contributed to, or has ever had any obligation to contribute to, (A) any “employee benefit plan” within the meaning of Section 3(3) of ERISA that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code or (B) a “multiemployer plan” within the meaning of Section 3(37) and 4001(a)(3) of ERISA or a “multiple employer plan” within the meaning of Sections 4063/4064 of ERISA or Section 413(c) of the Code, or (ii) has, since July 26, 2016, incurred or reasonably expects to incur any direct or indirect liability pursuant to Title IV of ERISA (including any Controlled Group Liability).
(d)      To the knowledge of Contura, no Contura Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(e)      Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (a) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee

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or independent contractor of Contura or any of its Subsidiaries, (b) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (c) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (d) result in any amount failing to be deductible by reason of Section 280G of the Code.
(f)      To the knowledge of Contura, all options have been granted in compliance with the terms of the applicable Contura Plans, with applicable Law, and with the applicable provisions of the Contura Certificate of Incorporation or Contura Bylaws as in effect at the applicable time.
(g)      Each Contura Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with applicable Law, including Section 409A of the Code.
(h)      Contura has no obligation to gross-up, indemnify or otherwise reimburse any current or former Contura employee, consultant, director or individual independent contractor (each, a “ Contura Service Provider ”) for any Tax incurred by such individual, including under Section 409A or 4999 of the Code.
(i)      Contura has no current or projected liability for, and no Contura Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any Contura Service Provider (other than coverage mandated by applicable Law, including COBRA).
Section 4.09.      Employees . (a) Section 4.09(a) of the Contura Disclosure Schedule sets forth each collective bargaining agreement or any labor union contract with respect to employees in the United States to or by which Contura or its Subsidiaries is a party or bound. A true and correct copy of each such agreement has been provided to ANR, together with a true and correct copy of all recall panels. There are, and since July 26, 2016 there have been no actual or, to the knowledge of Contura, threatened, labor strikes, disputes, walkouts, work stoppages, slowdowns, or lockouts with respect to employees of Contura or its Subsidiaries. No material or class action labor grievance or arbitration demand or proceeding, or unfair labor practice charge or proceeding, whether or not filed pursuant to a collective bargaining agreement, has been filed since July 26, 2016, is pending or, to the knowledge of Contura, is threatened against Contura or its Subsidiaries.
(b)      Contura and its Subsidiaries are, and since July 26, 2016 have been, in all material respects in compliance with all applicable local, state, federal and foreign Laws relating to labor and employment, including but not limited to Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations. There are, and since July 26, 2016 there have been, no material complaints,

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lawsuits, arbitrations, administrative proceedings, or other Proceedings pending or, to the knowledge of Contura, threatened against Contura or any of its Subsidiaries brought by or on behalf of or material settlements entered into by Contura with any applicant for employment, any current or former Contura Service Provider, any person alleging to be a current or former Contura Service Provider, any class of the foregoing, or any Governmental Entity, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment or engagement, or alleging any other discriminatory, wrongful or tortuous conduct in connection with the employment or service relationship.
(c)      Since July 26, 2016, neither Contura nor any of its current Subsidiaries has incurred any liability or obligation which remains unsatisfied under WARN.
Section 4.10.      Litigation . (a) There is no Proceeding pending (or, to the knowledge of Contura, threatened), nor, to the knowledge of Contura, is any investigation by any Governmental Entity pending or threatened (other than any such Proceeding or governmental investigation that challenges or seeks to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby), to which Contura or any of its Subsidiaries is a party or against Contura or any of its Subsidiaries or any of its or their properties or assets that (i) involves an amount in controversy in excess of $500,000, (ii) seeks injunctive or other non-monetary relief, or (ii) would have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect. As of the date hereof, there are no Proceedings pending or, to the knowledge of Contura, threatened, nor, to the knowledge of Contura, are there any investigations by any Governmental Entity pending or threatened, against Contura or any of its Subsidiaries challenging or seeking to prohibit the execution, delivery or performance of this Agreement or any of the transactions contemplated hereby. Neither Contura nor any of its Subsidiaries nor any of their respective properties or assets is subject to any outstanding order, writ, injunction or decree of any Governmental Entity, except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(b)      Section 4.10(b) of Contura Disclosure Schedule sets forth an accurate and complete list of each Proceeding or governmental investigation resolved or settled since July 26, 2016 and prior to the date of this Agreement and requiring payment by Contura or any of its Subsidiaries in excess of $500,000 or involving the imposition on Contura or any of its Subsidiaries of injunctive or other non-monetary relief.
(c)      To the knowledge of Contura, (i) no officer or director of Contura or any of its Subsidiaries is a defendant in any Proceeding or governmental investigation in connection with his or her status as an officer or director of Contura or any of its Subsidiaries, and (ii) no such Proceeding or governmental investigation is threatened in writing.
Section 4.11.      Tax Matters . (a) All material Tax Returns required by applicable Law to be filed with any Taxing Authority by or with respect to Contura or any of its Subsidiaries since July 26, 2016 have been filed when due (taking into account

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extensions validly obtained) and all such Tax Returns are, or shall be at the time of filing, true, correct and complete in all material respects.
(b)      Contura and its Subsidiaries have paid (or have had paid on their behalf) or have withheld and remitted to the appropriate Taxing Authority all material Taxes attributable to Contura or any of its Subsidiaries that were due and payable since July 26, 2016 or where payment is not yet due, have established an adequate accrual, in accordance with GAAP and past customs and practice of Contura and its Subsidiaries, for all Taxes through the end of the last period for which the Contura and its Subsidiaries ordinarily record items on their respective books and records.
(c)      There is no audit, investigation, claim, suit, proceeding or assessment in respect of Taxes or material Tax assets now pending or, to the knowledge of Contura, threatened in writing against Contura or any of its Subsidiaries.
(d)      There are no agreements or arrangements in effect to extend the period of limitations for the assessment or collection of any Tax for which Contura or any of its Subsidiaries may be liable, and there is no currently effective “closing agreement” pursuant to Section 7121 of the Code (or any similar provision of foreign, state or local Law).
(e)      Since July 26, 2016, no claim has been made by any Taxing Authority in a jurisdiction where neither Contura nor any of its Subsidiaries has filed Tax Returns that Contura or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(f)      ‎Section 4.11(f) of the Contura Disclosure Schedule contains a list of all jurisdictions (whether foreign or domestic) in which Contura or any of its Subsidiaries currently file Tax Returns.
(g)      During the five-year period ending on the date hereof, neither Contura nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(h)      Neither Contura nor any of its Subsidiaries has engaged in a “listed transaction” (as defined in Treasury Regulation Section 1.6011-4).
(i)      Contura and its Subsidiaries have withheld from payments to their employees, independent contractors, creditors, stockholders and any other applicable person (and timely paid to the appropriate Taxing Authority) all material amounts required by applicable Tax Law to be withheld and paid for all periods since July 26, 2016 through the date of this Agreement, except with respect to amounts that are being contested in good faith by appropriate proceedings, and have complied in all material respects with all applicable Laws relating to information reporting.
(j)      Neither Contura nor any of its Subsidiaries has taken or agreed to take any action, or are aware of any fact or circumstance, that would reasonably be expected to

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prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(k)      Section 4.11(k) of the Contura Disclosure Schedule contains a list of all Tax sharing and Tax indemnification agreements entered into after July 26, 2016 and currently in effect as to which any Person other than Contura or any of its Subsidiaries is a party.  There is no claim now pending or, to the knowledge of an Contura Party, threatened in writing against Contura or any of its Subsidiaries for payment or indemnification in respect of Taxes pursuant to any such Tax sharing or Tax indemnification agreement.  For purposes of this representation, commercial agreements or Contracts not primarily related to Taxes shall not be considered Tax sharing or Tax indemnification agreements.
Section 4.12.      Compliance with Law . Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, Contura and each of its Subsidiaries is and has been since July 26, 2016 in compliance with all Laws applicable to the conduct of the business of Contura or any of its Subsidiaries or by which any assets of Contura or any of its Subsidiaries are bound or affected.
Section 4.13.      Permits; Surety Bonds . (a) Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect:
(i)      Contura and each of its Subsidiaries have all Permits required under applicable Laws to own, lease, develop or operate their real properties and assets or to conduct their businesses as conducted on the date hereof (including Permits relating to underground mining, surface mining, highwall mining and auger mining, processing, sale or transporting of coal and coal byproducts, or activities defined under the Surface Mining Control and Reclamation Act of 1977, as amended, as “surface coal mining operations”) (collectively, the “ Contura Permits ”) and each Contura Permit is in full force and effect;
(ii)      each of Contura and each of its Subsidiaries is and since July 26, 2016 has been in compliance with the terms and conditions of the Contura Permits; and
(iii)      since July 26, 2016, neither Contura nor any of its Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw, modify in any adverse respect or limit any of the Contura Permits and, to the knowledge of Contura, there are no circumstances or conditions providing grounds for any suspension, revocation, withdrawal, adverse modification or limitation on any of the Contura Permits.
(b)      Since July 26, 2016, neither Contura nor any of its Subsidiaries has been notified in writing by the Federal Office of Surface Mining or the agency of any state administering the Surface Mining Control and Reclamation Act of 1977, as amended (or

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any comparable state statute) that it is (i) ineligible to receive additional surface mining Permits or (ii) under investigation to determine whether its eligibility to receive such Permits should be “permit blocked.”
(c)      Except as would not have or reasonably be expected to have, individually or in the aggregate, an Contura Material Adverse Effect:
(i)      there are no applications for new Permits (for the avoidance of doubt, not including amendments, renewals, extensions or other modifications of existing Contura Permits) other than those set forth in Section 4.13(c) of the Contura Disclosure Schedule (the “ Contura Permit Applications ”);
(ii)      each of the Contura Permit Applications has been made in accordance with applicable Laws, subject to such changes as may be requested by a Governmental Entity as part of the permit review process; and
(iii)      except for changes requested by a Governmental Entity as part of the permit review process, which changes can be readily implemented by Contura or its Subsidiaries, as applicable, neither Contura nor any of its Subsidiaries has received any written notice from any Governmental Entity indicating that any of the Contura Permit Applications will not be granted.
(d)      Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, Contura and its Subsidiaries have posted all Surety Bonds required to be posted in connection with their operations and pursuant to the Contura Permits. All Surety Bonds posted by each of Contura and its Subsidiaries in connection with its respective operations are defined as the “ Contura Surety Bonds. ” Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, each of Contura and its Subsidiaries is in compliance with all Contura Surety Bonds applicable to it.
(e)      Without limiting the generality of the foregoing, the operation of the coal mining and processing operations of Contura and its Subsidiaries and the state of reclamation with respect to each of their Contura Permits is “current” with respect to the reclamation obligations required by the Contura Permits and otherwise are in compliance with the Contura Permits and all applicable mining, reclamation and other similar Laws, except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
Section 4.14.      Environmental Matters . (a) Except as would not reasonably be expected to be material, individually or in the aggregate, each of Contura and its Subsidiaries (x) is and since July 26, 2016 has been in compliance with applicable Environmental Laws and (y) holds and is and since July 26, 2016 has been in compliance with all Permits required under Environmental Laws for the conduct of its business and activities as currently conducted (the “ Contura Environmental Permits ”). All Contura Environmental Permits are in full force and effect, and all applications, notices or other

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documents have been timely filed to effect timely renewal, issuance or reissuance of such Contura Environmental Permits.
(b)      Neither Contura nor any of its Subsidiaries is the subject of any Environmental Claim, and no Environmental Claim is pending or, to the knowledge of Contura, threatened against Contura or any of its Subsidiaries or against any Person whose liability for the Environmental Claim was retained or assumed by Contract or by operation of Law or pursuant to any order issued by any Governmental Entity, in each case, by Contura or any of its Subsidiaries.
(c)      No Hazardous Materials are present at, on, under or are emanating from any properties or facilities currently leased, operated or used or, to the knowledge of Contura, previously owned, leased, operated or used, in circumstances that would reasonably be expected to form the basis for an Environmental Claim against, or a requirement for investigation pursuant to applicable Environmental Law by, Contura or any of its Subsidiaries.
(d)      To the knowledge of Contura, no property presently owned, leased or operated by Contura or any of its Subsidiaries contains any (x) landfills, surface impoundments, disposal areas or radioactive materials (except to the extent such land use or material is allowed pursuant to applicable Permits), (y) underground storage tanks or aboveground storage tanks or (z) asbestos or asbestos-containing material, polychlorinated biphenyls, and no such property is listed or proposed for listing on the National Priorities List or any similar list issued by a Governmental Entity of sites where remedial action is or is reasonably expected to be necessary.
(e)      Neither Contura nor its Subsidiaries has Released, disposed of, or arranged to dispose of, any Hazardous Materials in a manner, or to a location, that would reasonably be expected to result in an Environmental Claim.
(f)      No material Lien imposed by any Governmental Entity having jurisdiction pursuant to any Environmental Law is currently outstanding as to any assets owned, leased or operated by Contura or any of its Subsidiaries except for Liens imposed in connection with any Contura Surety Bonds.
(g)      Except for Contura Surety Bonds posted in the ordinary course of business and the surety agreements related thereto, no financial assurance obligation is in force as to any property or facility owned, leased or operated by Contura or any of its Subsidiaries.
(h)      Contura and its Subsidiaries have no obligation or liability by Contract relating to or arising under Environmental Law.
Section 4.15.      Intellectual Property .
(a)      Contura and its Subsidiaries own or possess, or are validly licensed or otherwise have the right to obtain ownership or possession and to currently use, all

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Intellectual Property Rights used or held for use in, or otherwise reasonably necessary for, the conduct of the business of Contura or any of its Subsidiaries (the “ Contura Intellectual Property ”).
(b)      Except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect, (i) Contura and its Subsidiaries are the sole and exclusive owners of all Intellectual Property Rights owned or purported to be owned by Contura or by a Subsidiary of Contura (collectively, “ Contura Owned Intellectual Property ”) and no such Contura Owned Intellectual Property (A) is the subject of any pending or, to the knowledge of Contura, threatened interference, opposition or other Proceeding or (B) has been adjudged invalid or unenforceable in whole or part, (ii) the conduct of the business of Contura or their respective Subsidiaries does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, any Intellectual Property Rights of any third party, and (iii) the execution, delivery and performance of this Agreement by Contura and the consummation of the transactions contemplated hereby will not cause the forfeiture or termination or give rise to a right of forfeiture or termination of any of the Contura Intellectual Property, impair the right of Contura or a Subsidiary of Contura to make, use, sell, license, dispose of or otherwise exploit, or to bring any action for the infringement, misappropriation or other violation of, any Contura Owned Intellectual Property, or impair the right of Contura or any of its Subsidiaries to use the Contura Owned Intellectual Property in the conduct of their businesses as currently conducted.
(c)      Contura and its Subsidiaries have used commercially reasonable efforts to maintain, protect, defend and enforce all material Contura Owned Intellectual Property; provided that, without limiting Section 5.02, nothing herein shall be deemed to have required Contura or its Subsidiaries to register or apply to register or to maintain, protect, defend or enforce any Contura Owned Intellectual Property, except where the failure to do so would result in a Contura Material Adverse Effect.
(d)      Neither Contura nor any of its Subsidiaries is experiencing any material defects in the Computer Software or hardware used in its business as it is currently conducted, including any material error or omission in the processing of any transactions.
Section 4.16.      Real Property; Personal Property . (a) For the purpose of the Agreement:
(i)      “ Contura Owned Real Property ” means all real property and other right, title and interests in land, including coal, mineral, mining, water and surface rights, easements, rights of way and options, owned by Contura or any of its Subsidiaries, together with all improvements and fixtures located thereon or appurtenant thereto;
(ii)      “ Contura Leased Real Property ” means all real property and other right, title and interests in land, including coal, mineral, mining water and surface rights, easements, rights of way and options, leased, subleased, licensed

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or otherwise used by Contura or any of its Subsidiaries as lessee, licensee or grantee (each such lease, sublease, license or other use agreement, a “ Contura Lease ”); and
(iii)      “ Contura Real Property ” means the Contura Owned Real Property and the Contura Leased Real Property.
(b)      ‎Section 4.16(b) of the Contura Disclosure Schedule sets forth a true, accurate and complete list of all Contura Owned Real Property with a value of $1,000,000 or more. (i) The Contura Real Property includes all of the land, buildings, structures and fixtures located thereon and all easements, rights of way, options, coal, mineral, mining, water, surface and other rights and interests appurtenant thereto necessary for the use by Contura and its Subsidiaries in the conduct of their business as currently conducted in all material respects; (ii) Contura or one of its Subsidiaries has good and marketable title to, or has a valid leasehold interest in, all Contura Real Property (subject in all cases to Permitted Liens), except where the failure to have such title or interest could not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect; (iii) all Contura Owned Real Property is owned by Contura or one of its Subsidiaries, free and clear of all Liens other than Permitted Liens or any other Liens that would not have, individually or in the aggregate, a Contura Material Adverse Effect; (iv) Contura or one of its Subsidiaries has a valid leasehold interest in or easement or other property interest in, and to, and enjoys peaceful and undisturbed possession of all Contura Leased Real Property on which it is currently conducting operations and, except where the failure to have such possession would not have, individually or in the aggregate, a Contura Material Adverse Effect, Contura has complied with all of its obligations under such leases, and all such Leases are in full force and effect and are free and clear of all Liens other than Permitted Liens; and (v) Contura or one of its Subsidiaries has adequate rights of ingress and egress to all Contura Real Property on which it is currently conducting operations, except where the failure to have such access would not have, individually or in the aggregate, a Contura Material Adverse Effect, sufficient to access and exercise its rights with respect to such Contura Real Property.
(c)      With respect to the Contura Real Property:
(i)      to the knowledge of Contura, there are no pending or threatened Proceedings to take all or any portion of the Contura Real Property or any interest therein by eminent domain or any condemnation proceeding or any sale or disposition in lieu thereof;
(ii)      there are no outstanding options, rights of reverter, rights of first offer, rights of first refusal or contracts granted by Contura or any of its Subsidiaries to purchase or lease any material portion of such Contura Real Property (other than such options or rights granted in the ordinary course of business);

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(iii)      there are no leases or other contracts granting to any Person (other than Contura or any of its Subsidiaries) the right of use or occupancy of any material portion of any Contura Real Property, other than those granted or incurred in the ordinary course of business, that do not, in the aggregate, interfere in any material respect with the ordinary conduct of the business of Contura or its Subsidiaries at the Contura Real Property affected thereby;
(iv)      all material buildings, structures, fixtures, building systems and equipment included in the Contura Real Property that are currently in use (the “ Contura Improvements ”) are in operating condition in all material respects, subject to reasonable wear and tear, and, to the knowledge of Contura, there are no facts or conditions affecting any of the Contura Improvements that would materially and adversely interfere with the use or occupancy of the Contura Improvements or any portion thereof in the operation of the business of Contura and its Subsidiaries as presently conducted thereon;
(v)      to the knowledge of Contura, the present use of the Contura Real Property (including the Contura Improvements) is, and the Contura Improvements themselves are, in substantial conformity with all recorded deeds, restrictions of record and other agreements affecting such Contura Real Property, and to the knowledge of Contura there are no material violations thereof;
(vi)      to the knowledge of Contura, there are no currently proposed or pending assessments materially and adversely affecting the Contura Real Property, whether for public improvements or otherwise;
(vii)      there are no outstanding Contracts or other obligations (including options) entered into by Contura or any of its Subsidiaries for the sale, exchange, encumbrance or transfer of any of the Contura Real Property, or any portion of it, that are material to Contura and its Subsidiaries taken as a whole; and
(viii)      to the knowledge of Contura, with respect to each Contura Real Property on which significant surface Contura Improvements are located, there are no rights or claims of parties in possession not shown by the public records, encroachments, overlaps, boundary line disputes or other matters which would be disclosed by an accurate survey or inspection of the premises except as could not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(d)      To the knowledge of Contura, the coal reserves currently mined by Contura and its Subsidiaries that are owned or leased by any of them are not subject to the mining rights of any other Person with respect to such coal reserves and none of Contura or its Subsidiaries has received a notice of claim to such effect, and Contura has sufficient rights to access and mine such coal reserves.
(e)      Contura and its Subsidiaries are in possession of and have good and marketable title to, or have valid leasehold interests in, all tangible personal property

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used in the business of Contura and its Subsidiaries, except as could not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect. All such tangible personal property is owned by Contura or one of its Subsidiaries, free and clear of all Liens other than Permitted Liens, or, to the knowledge of Contura, is leased under a valid and subsisting lease and, in each case, is in operating condition, ordinary wear and tear excepted.
Section 4.17.      Material Contracts . (a) Section 4.17(a) of Contura Disclosure Schedule lists, and Contura has made available to ANR prior to the date of this Agreement, true, correct and complete copies of, any of the following Contracts to which Contura or any of its Subsidiaries is a party or by which Contura, any of its Subsidiaries or any of their respective assets is bound, as of the date hereof:
(i)      that would be required to be filed by Contura as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act if Contura were subject to the filing or disclosure requirements under Regulation S-K under the Securities Act, or that would be required to be disclosed by Contura on a Current Report on Form 8-K if Contura were subject to the disclosure requirements under the Exchange Act;
(ii)      that contains covenants that limit the ability of Contura or any of its Subsidiaries to compete in any business or with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that would reasonably be expected to be material;
(iii)      that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation or control of any partnership or joint venture or similar entity or arrangement (other than any partnership or limited liability company operating agreement of a direct or indirect wholly-owned Subsidiary of Contura) or pursuant to which Contura or any of its Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(iv)      that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case, that is material to the business of Contura and its Subsidiaries, taken as a whole;
(v)      that relates to (A) Indebtedness under which Contura and/or any of its Subsidiaries has outstanding obligations in excess of $1,000,000 or (B) conditional or similar sale arrangements in connection with which the

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aggregate actual or contingent obligations of Contura and its Subsidiaries under such Contract are greater than $1,000,000;
(vi)      under which (A) to the knowledge of Contura, any Person has guaranteed any liabilities or obligations of Contura or its Subsidiaries (other than any such guarantees by Contura or its Subsidiaries), in case of each such liability or obligation, in an amount in excess of $1,000,000, or (B) Contura or any of its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than Contura or any of its Subsidiaries);
(vii)      for the purchase and sale of coal under which (x) the aggregate amounts to be paid by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period;
(viii)      under which (x) the aggregate amounts to be paid by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period or (y) the aggregate amounts to be received by Contura and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $1,000,000 in any twelve-month period, in each case, other than (A) the Contura Material Contracts described in Section ‎4.17(a)(vii) and (B) purchase orders for the purchase of goods or services in the ordinary course of business;
(ix)      any Contura Interested Party Agreement;
(x)      that relates to the ownership, lease or use of space at Contura’s headquarters at 340 Martin Luther King Jr. Blvd., Bristol, TN 37620;
(xi)      any Contura Lease involving royalty payments of $500,000 or more per year;
(xii)      which is (i) a written employment agreement with any Contura Service Provider that is not terminable on sixty (60) days' notice or less without penalty, liability or premium (including severance due upon a termination of employment) or (ii) a change in control, transaction bonus, retention bonus or other similar agreement with any Contura Service Provider that requires a payment as a result, either alone or in combination with any other event, of the completion of the transactions contemplated hereby;
(xiii)      under which Contura or any Subsidiary thereof has granted or received a license or sublicense with respect to any Intellectual Property Right that is material to the operation of the business of Contura or such Subsidiary, and for this purpose, specifically excluding any (A) non-exclusive, end-user license for computer software that is generally commercially available (except if

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the failure of Contura or such Subsidiary to have such non-exclusive end-user license would result in a Contura Material Adverse Effect) and (B) non-exclusive license or sublicense granted by Contura or any Subsidiary thereof in the ordinary course of business consistent with past practice;
(xiv)      that is otherwise material to Contura and its Subsidiaries; or
(xv)      that would or would reasonably be expected to prevent or materially delay Contura’s ability to consummate the Mergers or the other transactions contemplated by this Agreement.
Each Contract of the type described in clauses ‎(i) through (xv) is referred to herein as an “ Contura Material Contract. ”
(b)      Each Contura Material Contract is valid and binding on Contura and any Subsidiary of Contura that is a party thereto and, to the knowledge of Contura, each other party thereto and is in full force and effect. There is no default under any Contura Material Contract by Contura or any of its Subsidiaries or, to the knowledge of Contura, by any other party, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Contura or any of its Subsidiaries or, to the knowledge of Contura, by any other party, in each case except as would not have or reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
Section 4.18.      Insurance . Contura and its Subsidiaries are covered by valid and currently effective insurance policies issued in favor of Contura and its Subsidiaries that are customary and adequate for companies of similar size in the industries and locales in which Contura and its Subsidiaries operate. Section 4.18 of the Contura Disclosure Schedule sets forth, as of the date hereof, a true, correct and complete list of all material insurance policies issued in favor of Contura, or pursuant to which Contura or any of its Subsidiaries is a named insured or otherwise a beneficiary, as well as any historic incurrence-based policies still in force. With respect to each such insurance policy, (i) the policy is in full force and effect and all premiums due thereon have been paid, (ii) Contura is not in material breach or default, and neither Contura nor any of its Subsidiaries has taken any action or failed to take any action which with notice or the lapse of time would constitute such a material breach or default, or permit termination or modification of, any such policy, and (iii) to the knowledge of Contura as of the date hereof, no insurer on any such policy has been declared insolvent or placed in receivership, conservatorship or liquidation, and no notice of cancellation or termination has been received with respect to any such policy.
Section 4.19.      Suppliers and Customers . Section 4.19 of the Contura Disclosure Schedule sets forth the names of the 10 largest suppliers of Contura and its Subsidiaries (as measured by aggregate cost of items or services purchased for the twelve-month period ended on the Balance Sheet Date). To the knowledge of Contura, neither Contura nor any of its Subsidiaries (a) has been notified in writing of any dispute with any such supplier or with any of the 10 largest customers of Contura and its Subsidiaries (as

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measured by revenue for the twelve-month period ended on the Balance Sheet Date) or (b) has been notified in writing by any such customer or supplier that it intends or is threatening to terminate or otherwise adversely alter the terms of its business with Contura or any of its Subsidiaries.
Section 4.20.      Questionable Payments . Neither Contura nor any of its Subsidiaries (nor, to the knowledge of Contura, any of their respective directors, executives, representatives, agents or employees) (a) is using or since July 26, 2016 has used any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) is using or since July 26, 2016 has used any corporate funds for any direct or indirect unlawful payments to any foreign or domestic government officials or employees, (c) is violating or since July 26, 2016 has violated, in any material respect, any provision of the Foreign Corrupt Practices Act of 1977, as amended, (d) since July 26, 2016, has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties, or (e) since July 26, 2016, has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.
Section 4.21.      Interested Party Transactions . As of the date hereof, there are no Contracts between Contura or any of its Subsidiaries, on the one hand, and (i) any holder of equity interests in Contura, (ii) any current or former director, officer or employee of Contura or any of its Affiliates, other than Contracts relating to compensation or benefits pursuant to any Contura Plan or (iii) any Affiliate or any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any Person described in the foregoing clauses (i) and (ii), on the other hand (each such Contract, a “ Contura Interested Party Agreement ”).
Section 4.22.      Required Vote of Contura Stockholders . The only vote of the holders of securities of Contura required by the Contura Certificate of Incorporation, the Contura Bylaws, by Law or otherwise to complete the transactions contemplated by this Agreement is the approval of the Contura Charter Amendment by the holders of not less than a majority of the outstanding shares of Contura Common Stock. The approval of the Contura Charter Amendment as described in the previous sentence is referred to as the “ Contura Stockholder Approval. ”
Section 4.23.      Opinion of Financial Advisor . Prior to the execution of this Agreement, Ducera Securities LLC has delivered to the Contura Board its written opinion, dated the date of this Agreement, to the effect that, as of such date and based upon and subject to the assumptions, limitations, qualifications and other matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to Contura. Promptly following receipt of the opinion by the Contura Board, a true, correct and complete copy of the opinion will be delivered to ANR for informational purposes only.
Section 4.24.      Brokers; Certain Fees . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by and on behalf of Contura or any of its Subsidiaries, except as provided in the letter agreements

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(i) between Contura and Ducera Securities LLC and (ii) between Contura and Jefferies LLC, in each case relating to the Mergers.
Section 4.25.      No Other Representations; Disclaimer . (a) Except for the representations and warranties made by Contura in this Agreement, neither Contura nor any other Person makes any express or implied representation or warranty with respect to Contura or its Subsidiaries or their respective business, operations, assets, liabilities, condition (financial or otherwise) or prospects, and Contura hereby disclaims any such other representations or warranties, including any representation or warranty regarding merchantability or fitness for a particular purpose. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by Contura in this Agreement, neither Contura nor any other Person makes or has made any representation or warranty to any Alpha Party or any of their Affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to Contura, any of its Subsidiaries or their respective businesses, or (ii) any oral or written information presented to any Alpha Party or any of their Affiliates or representatives in the course of their due diligence investigation of Contura, the negotiation of this Agreement or in the course of the transactions contemplated hereby.
(a)      Notwithstanding anything contained in this Agreement to the contrary, Contura acknowledges and agrees that no Alpha Party or any other Person has made or is making any representations or warranties whatsoever, express or implied, beyond those expressly given by the Alpha Parties in this Agreement, including any implied representation or warranty as to the accuracy or completeness of any information regarding any Alpha Party furnished or made available to Contura or any of its representatives or any representation or warranty regarding merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, Contura acknowledges that, except for the representations and warranties made by any Alpha Party in this Agreement, no representations or warranties are made by any Alpha Party or any other Person with respect to any projections, forecasts, estimates, budgets or prospect information that may have been made available to Contura or any of its representatives.
ARTICLE 5
COVENANTS
Section 5.01.      Interim Undertakings of the Alpha Parties . Except as expressly permitted or required by this Agreement or as otherwise required by applicable Law or as set forth in Section 5.01 of the Alpha Disclosure Schedule or as consented to in writing by Contura (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, each Alpha Party shall, and shall cause each of their respective Subsidiaries to, conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and, to the extent consistent therewith, each Alpha Party shall, and shall cause each of their respective Subsidiaries to, use its commercially reasonable efforts to

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preserve substantially intact its business organization, to keep available the services of its current officers and key employees, and to preserve the goodwill of and maintain satisfactory relationships with those Persons having material business relationships with any Alpha Party or any of their respective Subsidiaries. Without limiting the generality of the foregoing and except as otherwise expressly permitted or required in this Agreement or as otherwise required by applicable Law or as set forth in Section 5.01 of the Alpha Disclosure Schedule, during the period from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, without the prior written consent of Contura (such consent not to be unreasonably withheld, delayed or conditioned), each Alpha Party will not and will not permit any of their respective Subsidiaries to:
(a)      propose to stockholders or adopt any amendments to the Holdings Certificate of Incorporation, the Holdings Bylaws, the ANR Certificate of Incorporation, the ANR Bylaws or the articles of incorporation, bylaws or other governing documents of any Subsidiary of any Alpha Party, other than amendments or changes to any such documents of the Subsidiaries of the Alpha Parties in the ordinary course of business consistent with past practice;
(b)      issue, sell, grant options or rights to acquire, pledge, or propose the issuance, sale, grant of options or rights to acquire or pledge of, any Alpha Securities or Alpha Subsidiary Securities (other than the issuance of shares or other equity interests or rights by a wholly-owned Subsidiary of an Alpha Party to an Alpha Party or another wholly-owned Subsidiary of an Alpha Party), or grant any awards or bonuses that may be settled in, or the value of which is linked directly or indirectly to the price or value of, any Alpha Securities or securities of any Subsidiary of any Alpha Party, except (i) to the extent required under any ANR Plan and (ii) issuances of shares of Class C-1 Common Stock upon the exercise of ANR Stock Options or upon the vesting of ANR RSUs, in each case outstanding on the date hereof and in accordance with their terms;
(c)      acquire or agree or offer to acquire, by merger, consolidation or through any other business combination, or by purchasing any equity interest in or any security convertible into or exchangeable for any equity interest in or all or a portion of the assets of, any Person, except for (i) any merger or business combination of any wholly-owned Subsidiary of ANR into or with any other wholly-owned Subsidiary of ANR and (ii) any other mergers, consolidations, business combinations or purchases of securities or assets involving consideration (including assumed Indebtedness) not in excess of $2,000,000 in the aggregate for all such mergers, consolidations, business combinations or purchases of securities or assets (each such merger, consolidation, business combination or purchase of securities or assets under this clause ‎(ii), an “ Alpha New Acquisition ” and collectively, the “ Alpha New Acquisitions ”); provided that the Alpha Parties may take the foregoing actions with respect to Alpha New Acquisitions if and only if each such Alpha New Acquisition (and all such Alpha New Acquisitions collectively) (A) involves only cash consideration (including the assumption of Indebtedness), (B) involves any business or business activity conducted by an Alpha Party or any of their Subsidiaries on the date hereof or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto, (C) would

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not reasonably be expected to prevent or materially delay the consummation of the Mergers, (D) would not reasonably be likely to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code, (E) would not materially delay the SEC review and approval process relating to the Form S-4 (whether by requiring any additional financial information to be included in the Form S-4 or otherwise), (F) would not materially adversely affect or materially delay obtaining the approvals and clearances under Antitrust Laws required in connection with the consummation of the Mergers and (G) would not require approval of any Alpha Party’s stockholders; it being understood that, notwithstanding anything to the contrary contained in this Agreement, any Alpha New Acquisition that is not permitted by the foregoing clauses ‎(A) through ‎(G) shall require the consent of Contura (which may be withheld, delayed or conditioned in Contura’s sole and absolute discretion);
(d)      split, combine or reclassify its capital stock or other equity interests or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) in respect of its capital stock or other equity interests (other than dividends or distributions paid by a direct or indirect wholly-owned Subsidiary of ANR to its stockholders), or acquire or redeem, directly or indirectly, or amend the rights or terms of any Alpha Securities or Alpha Subsidiary Securities;
(e)      adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Alpha Party or any of their respective Subsidiaries;
(f)      make or offer to make any acquisition, by means of a merger or otherwise, of any business, assets or securities, or any sale, lease or other disposition of any business, assets or securities, except for (i) purchases or sales, leases or dispositions of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice (except for any Contract for the sale of coal having a term in excess of one year that does not contain a price re-opener or price adjustment provision without a specified collar, which shall require the consent of Contura in accordance with the introductory paragraph of this ‎Section 5.01), (ii) capital expenditures permitted by ‎Section 5.01(p) and (iii) Alpha New Acquisitions expressly permitted pursuant to, and subject to the terms and conditions of, ‎Section 5.01(c);
(g)      make any loans, advances (other than advances pursuant to commercial transactions in the ordinary course of business consistent with past practice) or capital contributions to, or investments in, any other Person in excess of $1,000,000 in the aggregate for all such loans, advances, capital contributions and investments, other than any transaction solely between ANR and a direct or indirect wholly-owned Subsidiary of ANR or between direct or indirect wholly-owned Subsidiaries of ANR;
(h)      except (i) the entry into Contracts for purchases, sales, leases or dispositions of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice to the extent permitted pursuant to ‎Section 5.01(f) or (ii) in connection with an Alpha New Acquisition permitted pursuant to ‎Section 5.01(c), enter into, amend in any material respect, renew, terminate, or grant any release or

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relinquishment of material rights under any Alpha Material Contract (or Contract that would be an Alpha Material Contract if entered into prior to the date hereof), except, with respect to any collective bargaining or labor agreements, as required by Law (provided that notwithstanding the foregoing provisions of this clause ‎(h), entry into any Contract for the sale of coal having a term in excess of one year that does not contain a price re-opener or price adjustment provision without a specified collar shall require the consent of Contura in accordance with the introductory paragraph of this ‎Section 5.01);
(i)      incur, create, assume or otherwise become liable for, or repay or prepay, any Indebtedness (including the issuance of any debt security), or amend, modify or refinance any existing Indebtedness, in each case except for the incurrence or repayment of Indebtedness that is (i) incurred or repaid in accordance with the agreements or instruments listed in Section 5.01(i)(i) of the Alpha Disclosure Schedule, provided that for the avoidance of doubt such Indebtedness shall not be prepaid; (ii) in the form of a letter of credit or surety bond (A) provided in replacement of any letter of credit or surety bond set forth in Section 5.01(i)(iii) of the Alpha Disclosure Schedule or (B) provided in the ordinary course of business consistent with past practice, to the extent required by applicable Law; or (iii) solely between ANR and a direct or indirect wholly-owned Subsidiary of ANR or between direct or indirect wholly-owned Subsidiaries of ANR;
(j)      except in connection with an Alpha New Acquisition permitted pursuant to ‎Section 5.01(c), assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except direct or indirect wholly-owned Subsidiaries of ANR, in each case, other than any transaction solely between ANR and a direct or indirect wholly-owned Subsidiary of ANR or between direct or indirect wholly-owned Subsidiaries of ANR;
(k)      except in connection with an Alpha New Acquisition permitted pursuant to ‎Section 5.01(c), mortgage, pledge or otherwise encumber any of its assets (tangible or intangible) that are, individually or in the aggregate, material to the Alpha Parties, or create, assume or suffer to exist any Liens thereupon other than Permitted Liens;
(l)      materially change any of the financial accounting methods, principles or practices used by it, except as necessary to conform to changes in statutory or regulatory accounting rules, GAAP or regulatory requirements with respect thereto;
(m)      (i) make or change any material Tax election; (ii) change any annual Tax accounting period; (iii) adopt or change any material method of Tax accounting; (iv) enter into any material closing agreement with respect to Taxes; or (v) settle or surrender any material Tax claim, audit or assessment;
(n)      except to the extent required under existing ANR Plans as in effect on the date hereof, as required by Law or as set forth in Section 5.01(n) of the Alpha Disclosure Schedule, (i) enter into any new, or amend, terminate or renew any existing, employment, severance, change of control, indemnification, termination, severance, consulting, incentive award, salary continuation or similar agreements or arrangements with or for the benefit of any current or former Alpha Service Provider, or grant any

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increases in the compensation, perquisites or benefits to any current or former Alpha Service Provider, except for increases in base compensation or wages in the ordinary course of business and consistent with past practice of up to 3% in the aggregate for non-officer employees whose base salary or annual wage rate is less than $175,000 and whose title is director or below; (ii) accelerate the vesting or payment of the compensation payable or the benefits provided or to become payable or provided to any current or former Alpha Service Providers, or otherwise pay any amounts not due to any such individual under applicable Law or the terms of any ANR Plan, including with respect to severance; or (iii) fund or make any contribution to any ANR Plan or trust not required to be funded or contributed to;
(o)      except as permitted by the preceding clause ‎(n), establish, adopt, enter into, amend in any material respect (other than as required by applicable Law) or terminate any ANR Plan, or adopt or enter into any other employee benefit plan or arrangement that would be considered an ANR Plan if it were in existence on the date of this Agreement;
(p)      make or agree to make any capital expenditure, or enter into any binding agreements or arrangements providing for any capital expenditure except (i) in accordance with the capital expenditure budget set forth in Section 5.01(p) of the Alpha Disclosure Schedule (the “ Alpha Cap Ex Budget ”), and (ii) in respect of any capital expenditures or arrangements that are not set forth in the Alpha Cap Ex Budget that do not exceed $5,000,000 in the aggregate for all such expenditures not included in the Alpha Cap Ex Budget (it being understood that in no event shall Alpha New Acquisitions be permitted other than in accordance with and subject to the terms and conditions of ‎Section 5.01(c) or ‎(f)), or enter into any new line of business outside of its existing business segments;
(q)      compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages not in excess of $1,000,000 individually or $5,000,000 in the aggregate (other than any such immaterial non-monetary remedies agreed to in the ordinary course of business), in any case without the imposition of equitable relief on, or the admission of wrongdoing by, any Alpha Party or any of their respective Subsidiaries;
(r)      take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or
(s)      commit or agree to take, or authorize the taking of, any of the foregoing actions.
Section 5.02.      Interim Undertakings of Contura . Except as expressly permitted or required by this Agreement or as otherwise required by applicable Law or as set forth in Section 5.02 of the Contura Disclosure Schedule or as consented to in writing by ANR (such consent not to be unreasonably withheld, delayed or conditioned), during the period

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from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, Contura shall, and shall cause each of its Subsidiaries to, conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and, to the extent consistent therewith, Contura shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of its current officers and key employees, and to preserve the goodwill of and maintain satisfactory relationships with those Persons having material business relationships with Contura or any of its Subsidiaries. Without limiting the generality of the foregoing and except as otherwise expressly permitted or required in this Agreement or as otherwise required by applicable Law or as set forth in Section 5.02 of the Contura Disclosure Schedule, during the period from the date of this Agreement to the earlier to occur of the Closing and the termination of this Agreement in accordance with Article 7, without the prior written consent of ANR (such consent not to be unreasonably withheld, delayed or conditioned), Contura will not and will not permit any of its Subsidiaries to:
(a)      propose to stockholders or adopt any amendments to the Contura Certificate of Incorporation or the Contura Bylaws or the articles of incorporation, bylaws or other governing documents of any Subsidiary of Contura, other than the Contura Charter Amendment and amendments or changes to any such documents of the Subsidiaries of Contura in the ordinary course of business consistent with past practice;
(b)      issue, sell, grant options or rights to acquire, pledge, or propose the issuance, sale, grant of options or rights to acquire or pledge of, any Contura Securities or Contura Subsidiary Securities (other than the issuance of shares or other equity interests or rights by a wholly-owned Subsidiary of Contura to Contura or another wholly-owned Subsidiary), or grant any awards or bonuses that may be settled in, or the value of which is linked directly or indirectly to the price or value of, any Contura Securities or securities of any Subsidiary of Contura, except (i) to the extent required under any Contura Plan and (ii) issuances of shares of Contura Common Stock upon the exercise, vesting or settlement of Contura Stock Options or other Contura Securities, in each case outstanding on the date hereof and in accordance with their terms.
(c)      acquire or agree or offer to acquire, by merger, consolidation or through any other business combination, or by purchasing any equity interest in or any security convertible into or exchangeable for any equity interest in or all or a portion of the assets of, any Person, except for (i) any merger or business combination of any wholly-owned Subsidiary of Contura into or with any other wholly-owned Subsidiary of Contura and (ii) any other mergers, consolidations, business combinations or purchases of securities or assets involving consideration (including assumed Indebtedness) not in excess of $2,000,000 in the aggregate for all such mergers, consolidations, business combinations or purchases of securities or assets (each such merger, consolidation, business combination or purchase of securities or assets under this clause ‎(ii), a “ Contura New Acquisition ” and collectively, the “ Contura New Acquisitions ”); provided that Contura may take the foregoing actions with respect to Contura New Acquisitions if and only if each such Contura New Acquisition (and all such Contura New Acquisitions

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collectively) (A) involves only cash consideration (including the assumption of Indebtedness), (B) involves any business or business activity conducted by Contura or any of its Subsidiaries on the date hereof, or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto, (C) would not reasonably be expected to prevent or materially delay the consummation of the Mergers, (D) would not reasonably be likely to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code, (E) would not materially delay the SEC review and approval process relating to the Form S-4 (whether by requiring any additional financial information to be included in the Form S-4 or otherwise), (F) would not materially adversely affect or materially delay obtaining the approvals and clearances under Antitrust Laws required in connection with the consummation of the Mergers and (G) would not require approval of Contura’s stockholders; it being understood that, notwithstanding anything to the contrary contained in this Agreement, any Contura New Acquisition that is not permitted by the foregoing clauses ‎(A) through ‎(G) shall require the consent of ANR (which may be withheld, delayed or conditioned in ANR’s sole and absolute discretion);
(d)      split, combine or reclassify its capital stock or other equity interests or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) in respect of its capital stock or other equity interests (other than dividends or distributions paid by a direct or indirect wholly-owned Subsidiary of Contura to its stockholders), or acquire or redeem, directly or indirectly, or amend the rights or terms of any Contura Securities or Contura Subsidiary Securities;
(e)      adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Contura or any of its Subsidiaries;
(f)      make or offer to make any acquisition, by means of a merger or otherwise, of any business, assets or securities, or any sale, lease or other disposition of any material business, assets or securities, except for (i) purchases or sales, leases or dispositions of inventory, raw materials, supplies and equipment in the ordinary course of business consistent with past practice, (ii) capital expenditures permitted by ‎Section 5.02(o) and (iii) Contura New Acquisitions expressly permitted pursuant to, and subject to the terms and conditions of, ‎Section 5.02(c);
(g)      make any loans, advances (other than advances pursuant to commercial transactions in the ordinary course of business consistent with past practice) or capital contributions to, or investments in, any other Person in excess of $1,000,000 in the aggregate for all such loans, advances, capital contributions and investments, other than any transaction solely between Contura and a direct or indirect wholly-owned Subsidiary of Contura or between direct or indirect wholly-owned Subsidiaries of Contura;
(h)      except in the ordinary course of business consistent with past practice or in connection with an Contura New Acquisition permitted pursuant to ‎Section 5.02(c), enter into, amend in any material respect, renew, terminate, or grant any release or relinquishment of material rights under any Contura Material Contract (or Contract that

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would be an Contura Material Contract if entered into prior to the date hereof), except, with respect to any collective bargaining or labor agreements, as required by Law;
(i)      incur, create, assume or otherwise become liable for, or repay or prepay, any Indebtedness (including the issuance of any debt security), or amend, modify or refinance any existing Indebtedness, in each case except for the incurrence or repayment of Indebtedness that is (i) incurred or repaid in accordance with the agreements or instruments listed in Section 5.02(i)(i) of the Contura Disclosure Schedule, provided that for the avoidance of doubt such Indebtedness shall not be prepaid; (ii) in the form of a letter of credit or surety bond (A) provided in replacement of any letter of credit or surety bond set forth in Section 5.02(i)(iii) of the Contura Disclosure Schedule or (B) provided in the ordinary course of business consistent with past practice, to the extent required by applicable Law; or (iii) solely between Contura and a direct or indirect wholly-owned Subsidiary of Contura or between direct or indirect wholly-owned Subsidiaries of Contura;
(j)      except in connection with an Contura New Acquisition permitted pursuant to ‎Section 5.02(c), assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except direct or indirect wholly-owned Subsidiaries of Contura, in each case, other than any transaction solely between Contura and a direct or indirect wholly-owned Subsidiary of Contura or between direct or indirect wholly-owned Subsidiaries of Contura;
(k)      except in connection with an Contura New Acquisition permitted pursuant to ‎Section 5.02(c), mortgage, pledge or otherwise encumber any of its assets (tangible or intangible) that are, individually or in the aggregate, material to Contura, or create, assume or suffer to exist any Liens thereupon other than Permitted Liens;
(l)      materially change any of the financial accounting methods, principles or practices used by it, except as necessary to conform to changes in statutory or regulatory accounting rules, GAAP or regulatory requirements with respect thereto;
(m)      (i) make or change any material Tax election; (ii) change any annual Tax accounting period; (iii) adopt or change any material method of Tax accounting; (iv) enter into any material closing agreement with respect to Taxes; or (v) settle or surrender any material Tax claim, audit or assessment;
(n)      establish, adopt, enter into, amend in any material respect (other than as required by applicable Law) or terminate any Contura Plan, or adopt or enter into any other employee benefit plan or arrangement that would be considered a Contura Plan if it were in existence on the date of this Agreement;
(o)      make or agree to make any capital expenditure, or enter into any binding agreements or arrangements providing for any capital expenditure except (i) in accordance with the capital expenditure budget set forth in Section 5.02(p) of the Contura Disclosure Schedule (the “ Contura Cap Ex Budget ”) and (ii) in respect of any capital expenditures or arrangements that are not set forth in the Contura Cap Ex Budget

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that do not exceed $5,000,000 in the aggregate for all such expenditures not included in the Contura Cap Ex Budget (it being understood that in no event shall Contura New Acquisitions be permitted other than in accordance with and subject to the terms and conditions of ‎Section 5.02(c) or ‎(f)), or enter into any new line of business outside of its existing business segments;
(p)      compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages not in excess of $1,000,000 individually or $5,000,000 in the aggregate (other than any such immaterial non-monetary remedies agreed to in the ordinary course of business), in any case without the imposition of equitable relief on, or the admission of wrongdoing by, Contura or any of its Subsidiaries;
(q)      take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to prevent either of the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or
(r)      commit or agree to take, or authorize the taking of, any of the foregoing actions.
Section 5.03.      Alpha No Solicitation . (a) Subject to Sections ‎5.03(b), ‎(d), ‎(e) and ‎(g), each Alpha Party shall not, and shall cause their respective Subsidiaries not to, and each Alpha Party shall direct its and its Subsidiaries’ Representatives not to, directly or indirectly: (i) initiate, solicit or knowingly encourage (including by way of providing non-public information relating to the Alpha Parties or any of their Subsidiaries) the submission of any inquiries, proposals or offers that constitute or may reasonably be expected to lead to, any Alpha Acquisition Proposal or engage in any discussions or negotiations with respect thereto (except to disclose the existence of the provisions of this ‎Section 5.03) or otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, offers, proposals, discussions or negotiations, (ii) approve or recommend, or publicly propose to approve or recommend, an Alpha Acquisition Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to an Alpha Acquisition Proposal or enter into any letter of intent, agreement or agreement in principle requiring any Alpha Party (whether or not subject to conditions) to abandon, terminate or fail to consummate the transactions contemplated hereby or breach any of its obligations hereunder, (iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Contura, either of the Alpha Board Recommendations (a “ Change of Alpha Board Recommendation ”), or (iv) take any action to exempt any Person (other than Contura and its Affiliates) from the restrictions contained in any Takeover Law or otherwise cause such restrictions not to apply. Each Alpha Party shall, shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Persons (other than the parties to this Agreement and their

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respective Representatives in their capacities as such) conducted theretofore by any Alpha Party, their respective Subsidiaries or any of its Representatives with respect to any Alpha Acquisition Proposal. Each Alpha Party shall promptly request each Person (other than the parties to this Agreement and their respective Representatives in their capacities as such) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Alpha Acquisition Proposal to return or destroy all confidential information provided to such Person by or on behalf of any Alpha Party or any of their respective Subsidiaries to any such Person, to the extent required by, and in accordance with, the terms of the applicable confidentiality agreement. Any breach of this Section 5.03(a) by any Representative of any Alpha Party or any of their Subsidiaries (as if each such Representative were bound hereby) will be treated as a breach by the Alpha Parties for all purposes hereunder.
(b)      Notwithstanding anything to the contrary contained in ‎Section 5.03(a) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to obtaining the Alpha Stockholder Approvals, (i) an Alpha Party has received a written, bona fide Alpha Acquisition Proposal that did not result from a breach of ‎Section 5.03(a), and (ii) the Holdings Board and ANR Board determine in good faith, after consultation with the Alpha Parties’ financial advisors and outside counsel, that such Alpha Acquisition Proposal constitutes or would reasonably be likely to lead to an Alpha Superior Proposal, then the Alpha Parties and their Representatives may, subject to clauses (x) and (y) below, (A) furnish information with respect to the Alpha Parties and their Subsidiaries to the Person making such Alpha Acquisition Proposal (and its Representatives) and provide access to the Alpha Parties’ books, records, facilities, properties, personnel and Representatives to such Person and its Representatives, including this Agreement but excluding all other agreements and documents relating to the Mergers or the other transactions contemplated herein and all information of Contura and its Subsidiaries covered by the Confidentiality Agreement and (B) participate in discussions or negotiations with the Person making such Alpha Acquisition Proposal (and its Representatives) regarding such Alpha Acquisition Proposal; provided that (x) the Alpha Parties will not, and will instruct their Representatives not to, disclose any non-public information to such Person unless the Alpha Parties have entered into a confidentiality agreement with such Person not less restrictive in any material respect on such Person than the Confidentiality Agreement and which does not restrict any Alpha Party from providing the information or access required to be provided to be provided pursuant to clause (y), and (y) the Alpha Parties will promptly provide or make available to Contura or its Representatives any non-public information concerning the Alpha Parties or their Subsidiaries provided or made available to such other Person which was not previously provided or made available to Contura or its Representatives.
(c)      The Alpha Parties shall promptly (and in any event within 24 hours) notify Contura in the event that any Alpha Party (including th any of their respective Subsidiaries or Representatives) receives (i) any Alpha Acquisition Proposal, (ii) any request for non-public information relating to any Alpha Party or any of their respective Subsidiaries other than requests for information in the ordinary course of business of the

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Alpha Parties or any requests made that are unrelated to an Alpha Acquisition Proposal, or (iii) any request for discussions or negotiations regarding any Alpha Acquisition Proposal. The Alpha Parties shall provide Contura promptly (and in any event within such 24-hour period) with the identity of such Person and a copy of such Alpha Acquisition Proposal or request (or, where such Alpha Acquisition Proposal or request is not in writing, a description of the material terms and conditions thereof). The Alpha Parties shall keep Contura reasonably informed in writing on a current basis (and in any event no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Alpha Acquisition Proposal or request (including the material terms and conditions thereof and of any material modification thereto). The Alpha Parties shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person that would restrict the Alpha Parties’ ability to provide such information to Contura.
(d)      Notwithstanding anything in ‎Section 5.03(a) to the contrary, if either of the Alpha Parties receives a written, bona fide Alpha Acquisition Proposal that did not result from a breach of ‎Section 5.03(a), and the Holdings Board and the ANR Board conclude in good faith after consultation with outside counsel and financial advisors, after giving effect to all of the adjustments to the terms of this Agreement proposed in writing by Contura in response to such Alpha Acquisition Proposal, that (i) such Alpha Acquisition Proposal constitutes an Alpha Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with their fiduciary duties under applicable Law, each Alpha Party, the Holdings Board and the ANR Board may (and may resolve or agree to), at any time prior to obtaining the Alpha Stockholder Approvals, effect a Change of Alpha Board Recommendation; provided, however, that neither the Holdings Board nor ANR Board may effect such a Change of Alpha Board Recommendation under this Section 5.03(d) unless (A) the Alpha Parties shall have provided prior written notice to Contura, at least four Business Days in advance (the “ Alpha Notice Period ”), of its intention to take such action with respect to such Alpha Superior Proposal, which notice shall specify the material terms and conditions of any such Alpha Superior Proposal (including the identity of the party making such Alpha Superior Proposal), (B) prior to taking such action, at the request of Contura, the Alpha Parties shall, and shall direct their respective financial and legal advisors to, during such Alpha Notice Period, negotiate in good faith any adjustments in the terms and conditions of this Agreement proposed in writing by Contura during such Alpha Notice Period, and (C) following any negotiation described in the immediately preceding clause (B), such Alpha Acquisition Proposal continues to constitute an Alpha Superior Proposal. In the event of any revisions to the terms of an Alpha Superior Proposal that are material to such Alpha Superior Proposal after the start of the Alpha Notice Period, the Alpha Parties shall be required to deliver a new written notice to Contura satisfying the requirements of clause ‎(A) of the preceding sentence and to comply with the requirements of this ‎Section 5.03(d) with respect to such new written notice, and the Alpha Notice Period shall be deemed to have re-commenced on the date of such new notice; provided, however , that such additional Alpha Notice Period shall expire at the later of (x) the Alpha Notice Period and (y) the end of the second Business Day following the date on which the Alpha Parties deliver such new written notice.

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(e)      Notwithstanding anything in ‎Section 5.03(a) to the contrary, at any time prior to obtaining the Alpha Stockholder Approvals, the Holdings Board and the ANR Board may effect a Change of Alpha Board Recommendation, if the Holdings Board and the ANR Board (i) determine in good faith, after consultation with outside counsel, that based on a material event or change in circumstances that was not known, or if known, the consequences of which were not known or reasonably foreseeable, by the Alpha Parties as of the date hereof, the failure to make such Change of Alpha Board Recommendation would reasonably be expected to be inconsistent with their fiduciary duties under applicable Law, and (ii) determine in good faith that the reasons for making such Change of Alpha Board Recommendation are independent of any pending Alpha Acquisition Proposal; provided, however, that the Holdings Board and the ANR Board may not effect such a Change of Alpha Board Recommendation pursuant to this ‎Section 5.03(e) (A) as a result of any Excluded Intervening Event and (B) unless (x) the Alpha Parties shall have provided prior written notice to Contura, at least four Business Days in advance, of its intention to make such Change of Alpha Board Recommendation, which notice shall specify the material facts and information constituting the basis for such contemplated determination, and (y) prior to taking such action, at the request of Contura, the Alpha Parties shall, and shall direct their respective financial and legal advisors to, during such four Business Day period, negotiate in good faith any adjustments in the terms and conditions of this Agreement proposed in writing by Contura during such four Business Day period which would allow each of the Holdings Board and the ANR Board not to make such Change of Alpha Board Recommendation consistent with its fiduciary duties.
(f)      The Alpha Parties agree that any violations of the restrictions set forth in this ‎Section 5.03 by any of their or their Subsidiaries’ Representatives, including any violation by a Representative of a direction given to a Representative pursuant to the first sentence of ‎Section 5.03(a) shall be deemed to be a breach of this Agreement (including this ‎Section 5.03) by the Alpha Parties.
(g)      Nothing contained in this ‎Section 5.03 shall prohibit the Holdings Board or the ANR Board from (x) taking and disclosing to the stockholders of the Alpha Parties a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer, in each case, to the extent legally required) or (y) making any disclosure to the Alpha Parties’ respective stockholders if in the good faith judgment of the Holdings Board and the ANR Board, after consultation with outside counsel, failure to make such disclosure would be reasonably likely to be inconsistent with their fiduciary duties under applicable Law or that such disclosure is otherwise required by Law; provided that any such disclosure that has the substantive effect of withdrawing or adversely modifying the Alpha Board Recommendations shall be deemed to be a Change of Alpha Board Recommendation for purposes of ‎Section 7.01(g); pro v ided further that the issuance by the Alpha Parties, the Holdings Board or the ANR Board of a “stop, look and listen” communication (or any similar communication) as contemplated by Rule 14d-9(f) promulgated under the Exchange Act in which the Alpha Parties have not

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indicated that the Holdings Board and the ANR Board has changed the Alpha Board Recommendations shall not constitute a Change of Alpha Board Recommendation.
(h)      For purposes of this Agreement, (i) “ Alpha Acquisition Proposal ” means any inquiry, offer or proposal made by a Person or group (other than Contura or any of its Affiliates) at any time after the date hereof relating to a transaction or potential transaction which is structured to permit such Person or group to acquire beneficial ownership of at least 20% of the assets or businesses of, either of the Alpha Parties and its Subsidiaries, or at least 20% of the equity or any class of equity of either of the Alpha Parties or any of its Subsidiaries, pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or other transaction, including any single or multi-step transaction or series of related transactions, in each case other than the Mergers, and (ii) “ Alpha Superior Proposal ” means any bona fide Alpha Acquisition Proposal (except the references in the definition thereof to “20%” shall be replaced by “more than 50%”) made in writing after the date hereof that the Holdings Board and the ANR Board have determined in good faith (after consultation with the Alpha Parties’ financial advisors and outside counsel) is more favorable from a financial point of view to the holders of Alpha Capital Stock than the Mergers, taking into account all of the terms and conditions of such Alpha Acquisition Proposal, including all legal, financial, regulatory, likelihood and timing of consummation and other aspects of such Alpha Acquisition Proposal as the Holdings Board and the ANR Board deem relevant.
Section 5.04.      Preparation of SEC Documents; Listing . (a) As promptly as reasonably practicable following the date of this Agreement, Contura and the Alpha Parties shall prepare and Contura shall file with the SEC the Form S-4, in which the Joint Proxy Statement will be included; provided that the parties acknowledge that their goal is to file the Form S-4 within 30 Business Days after the date of this Agreement and that if they do not file the Form S-4 within such period, the appropriate senior executive officers of Contura and the Alpha Parties shall discuss the reasons for the failure to meet such goal. Each of the Alpha Parties and Contura shall obtain and furnish the information concerning itself and its Affiliates as may be reasonably requested in connection with the preparation, filing and distribution of the Form S-4 and the Joint Proxy Statement. Each of the Alpha Parties and Contura shall use its reasonable best efforts to (A) have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and (B) keep the Form S-4 effective for so long as necessary to complete the Mergers. The Alpha Parties shall cause the Joint Proxy Statement to be mailed to the Alpha Parties’ stockholders, as applicable, as promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act, and in any event, not less than 20 days prior to the date of the Alpha Special Meetings. The Joint Proxy Statement shall notify the stockholders of the Alpha Parties of the availability of appraisal rights in connection with the transactions contemplated by this Agreement in accordance with Section 262 of the DGCL. Contura shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance and reservation of shares of Contura Common Stock in the

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Mergers, and the Alpha Parties shall furnish all information concerning the Alpha Parties and the holders of Alpha Capital Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by Contura or the Alpha Parties, as applicable, without the other’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed) and without providing the other the opportunity to review and comment thereon. Contura will advise ANR promptly after it receives oral or written notice of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order (in which case, Contura will use reasonable best efforts to obtain the withdrawal of such order as soon as reasonably possible), the suspension of the qualification of the Contura Common Stock issuable in connection with the Mergers for offering or sale in any jurisdiction, or any oral or written request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information and will promptly provide ANR with copies of any written communication from the SEC or any state securities commission. Contura and the Alpha Parties shall use their respective reasonable best efforts, after consultation with each other, to resolve all such requests or comments with respect to the Form S-4 as promptly as reasonably practicable after receipt thereof. If at any time prior to the Closing any information relating to Contura or the Alpha Parties, or any of their respective Affiliates, officers or directors, should be discovered by Contura or any Alpha Party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the respective stockholders of the Alpha Parties.
(a)      Contura shall use reasonable best efforts to (i) cause the shares of Contura Common Stock to be issued in connection with the Mergers to be approved for listing on the NYSE or NASDAQ, subject to official notice of issuance, prior to the Closing, and, in connection therewith to be registered under Section 12(b) of the Exchange Act and (ii) to arrange for at least one market maker to register with the Financial Industry Regulatory Authority, Inc. as such with respect to the Contura Common Stock.
Section 5.05.      Stockholder Approvals . (a) Each Alpha Party shall, in accordance with applicable Law, the Holdings Certificate of Incorporation, the Holdings Bylaws, the ANR Certificate of Incorporation and the ANR Bylaws, call a meeting of its stockholders (in the case of Holdings, the “ Holdings Special Meeting ”, in the case of ANR, the “ ANR Special Meeting ” and together, the “ Alpha Special Meetings ”) to be held as promptly as reasonably practicable after the Form S-4 becomes effective, subject to compliance with applicable Law and provided that the Holdings Special Meeting shall be held prior to the ANR Special Meeting, for the purpose of obtaining the Alpha Stockholder Approvals in connection with this Agreement and the Mergers, and shall use its commercially reasonable efforts to cause each such meeting to occur as promptly as

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reasonably practicable after the Form S-4 becomes effective, subject to compliance with applicable Law and provided that the Holdings Special Meeting shall be held immediately prior to the ANR Special Meeting. Subject to Sections ‎5.03(d) and ‎5.03(e), the Joint Proxy Statement shall include the recommendation of the Holdings Board and the ANR Board that the Alpha Parties’ stockholders adopt the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement with respect to the Holdings Merger and the ANR Merger, as applicable. Unless this Agreement is validly terminated by the Alpha Parties or Contura in accordance with its terms pursuant to ‎Article 7 and subject to Sections ‎5.03(d) and ‎5.03(e), each Alpha Party shall use its commercially reasonable efforts to obtain from its stockholders the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement with respect to the Holdings Merger and the ANR Merger, as applicable, as required to consummate the Mergers, including by soliciting proxies in favor of such adoption and taking all other reasonable actions necessary or advisable to secure the vote of the holders of Alpha Capital Stock required by applicable Law to obtain such adoption. Holdings will not sell, transfer or assign, or allow any Lien to exist with respect to, its shares of Class C-2 Common Stock, and shall cause its shares of Class C-2 Common Stock to be counted as present at the ANR Special Meeting for purposes of calculating a quorum and, if the “agreement of merger” contained in this Agreement with respect to the Holdings Merger is adopted at the Holdings Special Meeting by the holders of Holdings Common Stock required by applicable Law to obtain such adoption, shall vote all such shares of Class C-2 Common Stock in favor of the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) contained in this Agreement with respect to the ANR Merger as required to consummate the ANR Merger. Unless this Agreement is validly terminated by the Alpha Parties or Contura in accordance with its terms pursuant to ‎Article 7 prior to the date of the Alpha Special Meetings, each Alpha Party shall submit the “agreement of merger” (as such term is used in Section 251 of the DGCL) with respect to the Holdings Merger and the ANR Merger, as applicable, contained in this Agreement to its stockholders for adoption at the Alpha Special Meetings even if the Holdings Board and/or the ANR Board shall have effected a Change of Alpha Board Recommendation.
(b)      The Alpha Parties shall coordinate to cause the Holdings Special Meeting and the ANR Special Meeting to occur on the same date and during substantially the same time period. If, on the date of the Alpha Special Meetings, either Alpha Party has not received proxies representing a sufficient number of shares of Alpha Capital Stock to obtain the Alpha Stockholder Approvals, each Alpha Party shall at its election or upon written request of Contura adjourn the applicable Alpha Special Meeting until such date as shall be mutually agreed upon by the Alpha Parties and Contura, which date shall not be less than five days nor more than 10 days after the date of adjournment, and subject to the terms and conditions of this Agreement shall continue to use its reasonable best efforts, together with its proxy solicitor, to assist in the solicitation of proxies from stockholders relating to the Alpha Stockholder Approvals. No Alpha Party may adjourn its Alpha Special Meeting except in accordance with this ‎Section 5.05(b) and shall no adjourn its Alpha Special Meeting more than one time pursuant to this ‎Section 5.05(b) unless mutually agreed by the Alpha Parties and Contura.

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(c)      No later than (i) the third Business Day following the date of this Agreement, Contura shall deliver to the Alpha Parties a written certificate signed on behalf of Contura by its Chief Executive Officer or Chief Financial Officer certifying whether the Contura Charter Amendment has been approved by the beneficial owners of a majority of the outstanding shares of Contura Common Stock and (ii) the twentieth Business Day following the date of this Agreement, Contura shall deliver to the Alpha Parties a written certificate signed on behalf of Contura by its Chief Executive Officer or Chief Financial Officer certifying whether the Contura Charter Amendment has been approved by the record holders of a majority of the outstanding shares of Contura Common Stock.
Section 5.06.      Access to Information . (a) Subject to the Confidentiality Agreement and the restrictions imposed by the HSR Act and applicable Law, from and after the date of this Agreement through the earlier of the Closing and the termination of this Agreement in accordance with its terms, each of the Alpha Parties and Contura will (i) give the other party and its respective Representatives (and their counsel and advisors) reasonable access (during regular business hours upon reasonable notice), consistent with applicable Law, to all employees, offices and other facilities and to all books, Contracts, commitments and records of it and its Subsidiaries and cause it and its Subsidiaries’ respective Representatives to provide access to its work papers and such other information as the other party may reasonably request (subject, in the case of work papers, to the execution of customary documentation reasonably requested by auditors), and (ii) permit the other party to make such inspections of Alpha Real Property or Contura Real Property, as applicable, as the other party may reasonably require (provided that no Phase II environmental investigations or similar testing of ground soil shall be permitted to be conducted), and (iii) cause its officers and those of its Subsidiaries to furnish the other party with such financial and operating data and other information with respect to the business, properties and personnel of it and its Subsidiaries as the other party may from time to time reasonably request. Notwithstanding the foregoing, any such access shall be in such a manner as not to interfere unreasonably with the business or operations of the other parties or their respective Subsidiaries. Without the prior written consent of the other parties (which in the case of the following clause (i) shall not be unreasonably withheld conditioned or delayed), no party shall (i) visit or enter any properties of such other parties outside of the ordinary course of business or (ii) conduct any Phase I or Phase II examinations or any other invasive environmental testing at the properties of such other parties.
(b)      Information obtained by a party pursuant to ‎Section 5.06(a) shall be subject to the provisions of the Confidentiality Agreement, which Confidentiality Agreement shall remain in full force and effect in accordance with its terms.
(c)      Nothing in this ‎Section 5.06 shall require a party to permit any inspection, or to disclose any information, that in the reasonable judgment of such party would (i) waive or jeopardize the attorney-client privilege of such party or its Subsidiaries or violate any of their respective contractual obligations to any third party (provided that each such party shall use its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure), or (ii) result in a violation of applicable Law,

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including the HSR Act. No investigation pursuant to this ‎Section 5.06 or otherwise shall affect the representations, warranties, or covenants in this Agreement or any of the remedies or conditions to the obligations of the parties hereto.
Section 5.07.      Commercially Reasonable Efforts; Consents and Governmental Approvals .
(a)      Subject to the terms and conditions of this Agreement (including the last two sentences of this ‎Section 5.07(a) and Section 5.07(b)), each of the parties hereto agrees to use its commercially reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate and make effective, in the most expeditious manner practicable, the Mergers. Without limiting the foregoing, but subject to the last two sentences of this ‎Section 5.07(a), each of the Alpha Parties and Contura agrees to use its commercially reasonable efforts to, in the most expeditious manner practicable, (i) obtain all waivers, consents and approvals from parties to Contracts to which any Alpha Party or any of their respective Subsidiaries is a party (in which case the Alpha Parties shall be primarily responsible for obtaining such waivers, consents and approvals), or to which Contura or any of its Subsidiaries is a party (in which case Contura shall be primarily responsible for obtaining such waivers, consents and approvals), as applicable, which are required in connection with the consummation of the transactions contemplated hereby and (ii) obtain all consents, approvals, permits and authorizations that are required to be obtained under any federal, state, local or foreign Law in connection with the transactions contemplated hereby. Notwithstanding anything herein to the contrary, Contura need not agree to (including by consent under the next sentence) or make any concessions or undertakings (including agreements to divest or hold separate assets or limit lines of business) if such agreements, concessions or undertakings either (x) would have a material and adverse effect on the benefits Contura reasonably expects to be derived from the combination of Contura and the Alpha Parties through the Mergers or materially limit the conduct of business by Contura or its Subsidiaries (including Holdings and ANR and their respective Subsidiaries) following the Closing, or (y) are not required to permit the consummation of the Merger without material delay (such agreements, concessions or undertakings, “ Materially Burdensome Conditions ”). The Alpha Parties shall not, without the prior written consent of Contura, agree to or make any payments (other than customary filing fees) or any concessions or undertakings (including with respect to any Materially Burdensome Conditions) in connection with the matters referenced in this ‎Section 5.07.
(b)      Each Alpha Party and Contura agrees (i) as promptly as reasonably practicable following the date of this Agreement, to file all Notification and Report Forms required under the HSR Act with respect to the transactions contemplated hereby, (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act, and (iii) to use its commercially reasonable efforts to take or cause to be taken all actions necessary, proper or advisable consistent with, and subject to, the other provisions of this ‎Section 5.07 (including the last two sentences of ‎Section 5.07(a)), to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as

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reasonably practicable, including by requesting early termination thereof. Each Alpha Party and Contura shall, in connection with the efforts referenced in ‎Section 5.07(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, use all commercially reasonable efforts to (A) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (B) keep the other parties reasonably informed of any communication received by such party from, or given by such party to, any Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (C) permit the other party to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by such applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, “ Antitrust Law ” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. Each of the Alpha Parties and Contura may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under Section 5.06 or this Section 5.07(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel (or previously agreed outside consultant) of the recipient and shall not be disclosed by such outside antitrust counsel (or such outside consultant) to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. Notwithstanding anything to the contrary contained in this Agreement, in the event that Contura or its Subsidiaries enters into an agreement committing to, or consummates, a transaction pursuant to which one or more third parties acquires or agrees to acquire beneficial ownership of at least 50% of the assets or businesses of Contura and its Subsidiaries, pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or other transaction, including any single or multi-step transaction or series of related transactions (such transaction, a “ Contura Sale Transaction ”), then Contura and its Subsidiaries shall, notwithstanding the last two sentences of Section 5.07(a) and any other contrary provisions in this Agreement, be required to use reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable, to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as reasonably practicable, including by (i) agreeing to and performing any Materially Burdensome Conditions that may be required to obtain the expiration or termination of the applicable waiting periods under the HSR Act and (ii) taking any and all reasonable actions to (x) contest and defend any claim, cause of action, or proceeding instituted or threatened that challenges the Mergers as violating any Antitrust Law to avoid entry of, or (y) have vacated, lifted, reversed, repealed, rescinded, or terminated, any decree, order, judgment, or injunction (whether temporary,

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preliminary, or permanent) entered, enforced, or attempted to be entered or enforced, by any Governmental Entity that would prohibit, prevent or restrict consummation of the Mergers. Nothing in ‎Section 5.02 (other than ‎Section 5.02(q)) or this ‎Section 5.07 will prevent Contura or any of its Subsidiaries from entering into an agreement committing to a Contura Sale Transaction.
(c)      Without limiting any of the other restrictions set forth in this Agreement (including ‎Section 5.01(c) and ‎Section 5.02(c)), no party hereto shall, nor shall it permit any of its Subsidiaries to, acquire or agree to acquire any business, Person or division thereof, or otherwise acquire or agree to acquire any assets or enter into any other transaction if the entering into of a definitive agreement relating to or the consummation of such acquisition or other transaction would be reasonably likely to materially delay the consummation of the transactions contemplated hereby or increase the risk of not obtaining any applicable clearance, approval or waiver from a Governmental Entity charged with the enforcement of any Antitrust Law with respect to the transactions contemplated hereby.
Section 5.08.      Indemnification and Insurance . (a) For a period of at least six years following the Closing, Contura shall maintain in effect provisions in the Holdings Certificate of Incorporation, Holdings Bylaws, ANR Certificate of Incorporation and ANR Bylaws, or, in the event that the Forward Mergers are consummated, the comparable organizational documents of the limited liability companies that survive such Forward Mergers, related to exculpation and indemnification of the (as of or prior to the Closing) former directors, officers and employees of the Alpha Parties that are no less favorable than those which are currently provided in the Holdings Certificate of Incorporation, Holdings Bylaws, ANR Certificate of Incorporation and ANR Bylaws, which provisions shall not be amended, repealed or otherwise modified during such six year period in any manner that would adversely affect the rights thereunder of any such individuals until the expiration of the statutes of limitations applicable to such matters or unless such amendment, modification or repeal is required by applicable Law.
(b)      From and after the Closing, the Surviving Corporations shall, and Contura shall cause the Surviving Corporations to, indemnify and hold harmless each (as of or prior to the Closing) officer and director of the Alpha Parties and of any Subsidiary of the Alpha Parties (as applicable with respect to the relevant Surviving Corporation) (each, together with such person’s heirs, executors or administrators, an “ Indemnified Party ” and collectively, the “ Indemnified Parties ”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any proceeding, whether civil, criminal, administrative or investigative, arising out of the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of an Alpha Party or any of its Subsidiaries (as applicable with respect to the relevant Surviving Corporation), or of another entity if such service was at the request of an Alpha Party, whether asserted or claimed prior to, at or after the Closing, to the fullest extent such Surviving Corporation is permitted to do so under applicable Law and its certificate of incorporation and bylaws as at the date hereof. In the event of any such proceeding, each Indemnified Party will be

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entitled to advancement of expenses incurred in the defense of the proceeding from the applicable Surviving Corporation to the same extent such Persons have the right to advancement of expenses from the applicable Alpha Party as of the date of this Agreement pursuant to the Holdings Certificate of Incorporation, Holdings Bylaws, ANR Certificate of Incorporation and ANR Bylaws, as applicable (provided that any Person to whom expenses are advanced shall have provided an undertaking to repay such advances if it is finally determined that such Person is not entitled to indemnification).
(c)      The Alpha Parties shall purchase prior to the Closing, and, for a period of six years following the Closing, Contura shall maintain, a fully pre-paid six-year tail policy to the current directors’ and officers’ liability insurance policies maintained on the date of this Agreement by the Alpha Parties for an aggregate cost of no more than 300% of the total annual premiums currently paid by the Alpha Parties for such insurance (exclusive of any premium refund on existing coverage for the Alpha Parties), which tail policy will cover a period from the Closing through and including the date that is six years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Closing, and which tail policy shall contain the same coverage and amount as, and contain terms and conditions that are equivalent to the coverage currently provided by the existing policies of the Alpha Parties (complete and accurate copies of which shall have been made available to Contura before such purchase); provided that if the cost of such tail policy would exceed 300% of the total annual premiums currently paid by the Alpha Parties for such insurance, the Alpha Parties shall obtain a tail policy with the greatest coverage available for a cost not to exceed such amount.
(d)      In the event that a Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any person, then, and in each such case, Contura shall cause proper provision to be made so that the successors and assigns of such Surviving Corporation shall expressly assume the applicable obligations set forth in this ‎Section 5.08.
(e)      The provisions of this ‎Section 5.08 (i) shall survive the consummation of the Mergers and, from and after (but not before) the Closing, is intended to benefit, and shall be enforceable by, each Indemnified Party and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract, under applicable Law or otherwise.
Section 5.09.      Employee Matters . (a) Contura shall, for the period commencing at the Closing and ending on December 31, 2019, provide, or cause to be provided, to each employee of ANR or its Subsidiaries as of the First Effective Time, other than individuals covered by a collective bargaining agreement (the “ Current Employees ”), for so long as such Current Employee remains employed by Contura or one of its Subsidiaries, compensation opportunities and employee benefits (but excluding equity compensation, change in control, transaction, deal or retention bonuses or payments, defined benefit pension benefits and any compensation or benefits provided pursuant to a

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collective bargaining agreement or defined benefit plan) that are substantially comparable, in the aggregate, to either, in Contura’s sole discretion, (i) the compensation opportunities and employee benefits provided by ANR or its Subsidiaries, as applicable, immediately prior to the Closing or (ii) the compensation opportunities and employee benefits provided by Contura to similarly-situated Contura employees. In addition, Contura shall, and shall cause its Subsidiaries to, honor any obligations of ANR or its Subsidiaries under (i) any retention or employment agreements in existence on the date hereof to which any Current Employee is a party and which are listed on ‎Section 5.09(a) of the Alpha Disclosure Schedule or (ii) the KESP, as in effect on the date hereof. Nothing in this ‎Section 5.09 shall interfere with Contura’s right or obligation to make such changes as are necessary to conform with applicable Law or prevent the amendment or termination of any ANR Plan (to the extent amendment or termination is permitted by such ANR Plan). Nothing in this ‎Section 5.09 shall limit the right of Contura or any of its Subsidiaries to terminate the employment of any Current Employee at any time.
(a)      Contura shall cause service rendered by Current Employees of ANR and its Subsidiaries (and any predecessor thereto) prior to the Closing to be given full credit under any compensation or benefit plan Contura or any of its Subsidiaries for purposes of eligibility, vesting and benefit accrual (but not for benefit accrual under any defined benefit or post-employment or retiree welfare benefits) under employee benefit plans of Contura and its Subsidiaries, except where such credit would not be afforded under the applicable ANR Plans and except as would result in a duplication of benefits. For the avoidance of doubt, nothing in this ‎Section 5.09(b) shall limit the right of Contura or any of its Subsidiaries to terminate existing ANR Plans or adopt new employee benefit plans. Contura shall use commercially reasonable efforts to (i) ensure that no Current Employee shall be subject to any pre-existing condition limitation under any health plan of Contura or its Subsidiaries for any condition for which he or she would have been entitled to coverage under the corresponding ANR Plan in which he or she participated prior to the Closing and (ii) give effect to, for the fiscal year in which the Closing occurs, in determining any deductible, co-pays and maximum out-of-pocket limitations, claims incurred and amounts paid by, and amounts reimbursed to, Current Employees prior to the Closing.
(b)      Notwithstanding anything to the contrary in the ANR, Inc. Key Employee Separation Plan, as amended (the “ KESP ”) (including with respect to Code Section 280G and Net After Tax Benefits (as therein defined)), Contura shall, together with the first lump sum payment payable in respect of the separation from service of any disqualified individual (within the meaning of Code Section 280G) eligible to receive benefits under the KESP, make an additional cash payment to each such disqualified individual (within the meaning of Code Section 280G) in respect of Taxes due under Code Section 4999 equal in amount to the lesser of (i) the amount set forth with respect to such individual on Section 5.09(c) of the Disclosure Schedule (which amounts shall not exceed $2,500,000 in the aggregate for all such disqualified individuals) and (ii) the actual Code Section 4999 excise tax gross-up amount owed to such disqualified individual calculated by ANR’s independent auditor at the time of such separation from

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service in accordance with the methodology set forth in ‎Section 5.09(c) of the Alpha Disclosure Schedule, which calculation must be reasonably acceptable to Contura.
(c)      This ‎Section 5.09 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this ‎Section 5.09, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this ‎Section 5.09 or is intended to be an amendment to any ANR Plan or Contura Plan.
(d)      Contura and the Alpha Parties hereby agree that the occurrence of the Closing shall constitute a “change in control” for purposes of the ANR Plans set forth in Section 5.09(e) of the Alpha Disclosure Schedule.
Section 5.10.      Takeover Laws . (a) Each Alpha Party, the Holdings Board and the ANR Board, as applicable, shall, upon the request of Contura, grant all such approvals and take all other necessary steps within their control to exclude the Mergers and any other transaction contemplated hereby from the applicability of any Takeover Laws.
(a)      Contura and the Contura Board shall, upon the request of ANR, grant all such approvals and take all other necessary steps within their control to exclude the Mergers and any other transaction contemplated hereby from the applicability of any Takeover Laws.
Section 5.11.      Notification of Certain Matters . (a) Each Alpha Party shall give prompt notice to Contura of any breach of this Agreement by such Alpha Party, and Contura shall give prompt notice to ANR of any breach of this Agreement by Contura, in each case upon obtaining knowledge of such breach if such breach, individually or in the aggregate with any other breaches, would make the timely satisfaction of any of the conditions set forth in Sections 6.01, 6.02 and 6.03 impossible or unlikely. The delivery of any notice pursuant to this ‎Section 5.11 shall not cure any breach of any representation or warranty requiring disclosure of such matter or otherwise limit or otherwise affect the remedies available hereunder to any party receiving such notice. This ‎Section 5.11 shall not constitute an obligation, covenant or agreement for purposes of ‎Section 6.02(b), ‎6.03(b), ‎7.01(e) or ‎7.01(f).
(a)      Each Alpha Party and Contura shall use its reasonable best efforts to keep the other informed, on a current basis, of any events, discussions, notices or changes with respect to any material Proceeding or investigation involving any Alpha Party or any of their respective Subsidiaries or Contura or any of its Subsidiaries.
Section 5.12.      Financing Assistance . (a) Although the parties acknowledge and agree that the obtaining of financing by Contura and its Subsidiaries is not a condition to Closing, prior to the Closing, each Alpha Party shall use its commercially reasonable efforts to, and shall cause its Subsidiaries and their respective Representatives to use their commercially reasonable efforts to, assist Contura in connection with the arrangement of any refinancing or replacement of any existing, or the arrangement of any new, facility for Indebtedness of Contura or its Subsidiaries or any Alpha Party or their respective

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Subsidiaries, including up to $100 million of incremental financing, to be consummated prior to or contemporaneously with the Closing in connection with the transactions contemplated by this Agreement.
(b)      Without limiting the generality of the foregoing, each Alpha Party shall, and shall cause its Subsidiaries and shall use commercially reasonable efforts to cause their respective Representatives to (i) enter into customary agreements, including underwriting and purchase agreements, in connection with any debt financing or refinancing contemplated by Section 5.12(a), (ii) participate in meetings, due diligence sessions and road shows, (iii) assist in preparing offering memoranda, rating agency presentations, private placement memoranda, prospectuses and similar documents, (iv) facilitate the pledging of, and perfection of, security interests in in the assets and equity of the Alpha Parties and their Subsidiaries effective no earlier than Closing; provided that the delivery of any original stock certificates and other certificated securities shall be delivered in escrow pending release at the Closing, (v) furnish to Contura and its financing or refinancing sources as promptly as possible the financial information reasonably required by Contura’s financing sources, (vi) update any financial statements delivered pursuant to clause (v) hereof as may be necessary so that such financial information does not contain any untrue statement of a material fact with respect to the business of the Alpha Parties and their Subsidiaries or omit to state any material fact with respect to the business of the Alpha Parties and their Subsidiaries necessary to make the statements not misleading in any material respect (after giving effect to all supplements and updates thereto from time to time) in light of the circumstances in which they were made, (vii) provide upon the reasonable request of Contura and/or its financing or refinancing sources such information reasonably deemed necessary to prepare a confidential information memorandum and other customary syndication materials reasonably required, including business projections and financial statements, (viii) cooperate to facilitate the due diligence efforts of Contura’s financing sources to the extent customary and reasonable and not unreasonably interfering with the business of the Alpha Parties and their Subsidiaries, (ix) facilitate the release of any Lien on the assets and the interests and the termination of all guarantees (if any) in connection therewith subject to the occurrence of the Closing, (x) provide at least four Business Days) prior to Closing all documentation and other information as is required by applicable “know your customer” anti-money laundering rules and regulations including the USA PATRIOT Act to the extent requested by Contura in writing prior to Closing, (xi) use reasonable best efforts to obtain comfort letters of accountants, legal opinions and to provide consents for use of such independent auditors’ reports and (xii) otherwise make available documents and information relating to the Alpha Parties and their Subsidiaries, in each case, as may be reasonably requested by Contura.
(c)      Notwithstanding anything to the contrary in this ‎Section 5.12, no Alpha Party or director, officer or employee of any of the foregoing, shall be required in connection with the matters contemplated by this ‎Section 5.12 to (i) pay any commitment or other similar fee not reimbursed by Contura, (ii) incur any liability of any kind (or cause their Representatives to incur any liability of any kind) prior to the Closing, (iii) enter into any agreement or commitment in connection with any financing

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which would be effective prior to the Closing or provide any certification or opinion of any Alpha Party or its Subsidiaries which would be effective prior to the Closing, (iv) provide any certificate, comfort letter or opinion of any of its Representatives (other than any officers certificate under which no personal liability of any officer is incurred), or (v) take any action that would (A) unreasonably interfere with the normal operations of the Alpha Parties and their respective Subsidiaries, (B) cause any director, officer or employee of any Alpha Party or its Subsidiaries to incur any personal liability, (C) conflict with the organizational documents of any Alpha Party or any of its Subsidiaries or (D) result a violation or breach of, or a default under, any Contract to which any Alpha Party or any of its Subsidiaries is a party as of the date hereof.
Section 5.13.      Press Releases . Following the execution of this Agreement, the Alpha Parties and Contura shall issue an initial joint press release agreed upon by the Alpha Parties and Contura. Thereafter, unless and until a Change of Alpha Board Recommendation has occurred and except as otherwise required by Law (including the rules or regulations of any applicable regulatory or governmental body to which the relevant party is subject or submits, wherever situated), each of Contura and the Alpha Parties agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued by (i) any Alpha Party or any of their respective Subsidiaries without first providing a meaningful opportunity to Contura to review and comment upon such release or announcement and giving due consideration to all reasonable additions, deletions or changes suggested thereto or (ii) Contura or any of its Subsidiaries without first providing a meaningful opportunity to the Alpha Parties to review and comment upon such release or announcement and giving due consideration to all reasonable additions, deletions or changes suggested thereto. Following the execution of this Agreement, if and to the extent any party makes any written communication to its employees that would be required to be filed with the SEC with respect to the Mergers or any other broadly disseminated written communication to employees with respect to the Mergers, such disclosing party shall, prior to making such disclosure provide a meaningful opportunity to the non-disclosing parties to review and comment upon such communications and shall give due consideration to all reasonable additions, deletions or changes suggested thereto. Notwithstanding the foregoing, each Alpha Party and Contura may make any disclosures and announcements (i) which are consistent with prior public releases or announcements made in accordance with this ‎Section 5.13 or (ii) in connection with any Proceeding in which the parties are adverse to each other. Nothing in this ‎Section 5.13 shall limit any rights or remedies of any party under ‎Section 5.03.
Section 5.14.      Stockholder Litigation . (a) Each Alpha Party shall give Contura the opportunity to participate, subject to a customary joint defense agreement, in, but not control, the defense or settlement of any stockholder Proceeding against any Alpha Party or any of their respective directors or officers relating to the Mergers or any other transactions contemplated hereby; provided, however, that no settlement or compromise shall be agreed to by or on behalf of any Alpha Party or any of their respective Subsidiaries without Contura’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).

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(b)      Contura shall give the Alpha Parties the opportunity to participate, subject to a customary joint defense agreement, in, but not control, the defense or settlement of any stockholder Proceeding against Contura or any of its directors or officers relating to the Mergers or any other transactions contemplated hereby; provided, however, that no settlement or compromise shall be agreed to by or on behalf of Contura or any of its Subsidiaries without ANR’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
Section 5.15.      No Control of Other Party’s Business . Nothing contained in this Agreement shall give Contura, directly or indirectly, the right to control or direct the Alpha Parties’ or their Subsidiaries’ operations prior to the Closing, and nothing contained in this Agreement shall give the Alpha Parties, directly or indirectly, the right to control or direct Contura’s or its Subsidiaries’ operations prior to the Closing. Prior to the Closing, each of Contura and the Alpha Parties shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Section 5.16.      Reserved .
Section 5.17.      Tax Matters .
(a)      It is intended that each of the Mergers shall constitute a “reorganization” within the meaning of Section 368(a) of the Code, and that this Agreement shall constitute a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). Subject to the other provisions of this Agreement, each of the Alpha Parties and Contura shall use its reasonable best efforts (i) to cause the Holdings Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code, (ii) to cause the ANR Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings, ANR and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code and (iii) not to, and not permit or cause any of their respective Subsidiaries or Affiliates to, take or cause to be taken any action reasonably likely to cause either of the Mergers to fail to qualify as a “reorganization” under Section 368(a) of the Code.
(b)      Notwithstanding any other provision of this Agreement, Contura shall be entitled to deduct and withhold from the consideration or other amounts otherwise payable pursuant to the Mergers or this Agreement any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any applicable provision of state, local or foreign Tax Law. To the extent that amounts are so deducted and withheld and paid over to the applicable Governmental Entity, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Alpha Capital Stock or other Person in respect of which such deduction and withholding was made. Contura shall pay, or shall cause to be paid, all amounts so withheld to the appropriate Governmental Entity within the period required under applicable Law. The parties to this Agreement shall cooperate in

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obtaining, prior to Closing, available Tax Certificates from Persons who are expected to be Alpha Party Shareholders. As soon as practicable after the date of this Agreement, the Alpha Parties and Contura shall jointly engage Ernst & Young LLP to deliver the opinion referenced in the definition of “Alpha Company Certificate.” For the avoidance of doubt, information obtained by a party pursuant to this ‎Section 5.17(b) shall be subject to the provisions of the Confidentiality Agreement, which Confidentiality Agreement shall remain in full force and effect in accordance with its terms.
(c)      Notwithstanding any other provision of this Agreement and without limiting the generality of ‎‎Section 5.17(b), unless each of the Alpha Parties delivers an Alpha Company Certificate at least ten days prior to the Closing Date, Contura may require that, if an Alpha Party Shareholder does not deliver a Tax Certificate with respect to the Applicable Merger by the earlier of (x) the date the Alpha Party Shareholder delivers the letter of transmittal referred to in ‎Section 2.01(b) and (y) the date that is fifteen days after the Closing, to the Exchange Agent (who shall be instructed by Contura to deliver such Tax Certificate to Contura promptly following receipt thereof), the Exchange Agent shall:
(i)          promptly sell, on behalf of such Alpha Party Shareholder, shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be delivered to such Alpha Party Shareholder as consideration in such Applicable Merger in sufficient number to yield net proceeds equal to the sum of (A) the FIRPTA Withholding Tax with respect to such Alpha Party Shareholder and such Applicable Merger and (B) the amount of costs, expenses and fees incurred by the Exchange Agent in connection with selling such shares, which amount described in (B) shall be retained by the Exchange Agent to reimburse the Exchange Agent for such costs, expenses and fees;
(ii)      promptly deliver cash to Contura in an amount equal to the FIRPTA Withholding Tax with respect to such Alpha Party Shareholder and such Applicable Merger (which Contura shall promptly report and pay to the Internal Revenue Service as required by Treasury Regulations Section 1.1445-1); and
(iii)      promptly deliver (subject to the other provisions of this Agreement) the remaining shares of Contura Common Stock to such Alpha Party Shareholder.
(d)      For purposes of this Section 5.17:
(i)          “ Alpha Company Certificate ” shall mean a certification, signed under penalties of perjury by an officer of the applicable Alpha Party, dated not more than 30 days prior to the Closing Date, and delivered to Contura at least ten days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h) and confirms that Holdings Common Stock and Class C-1 Common Stock, as applicable, is not a “United States real property interest” within the meaning of Section 897(c) of the Code,

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provided that such certification must be supported by a should level opinion of Ernst & Young LLP (or another firm reasonably satisfactory to Contura) reasonably satisfactory to Contura and a copy of the notice to be sent to the Internal Revenue Service as required by Treasury Regulation Sections 1.897-2(h).
(ii)      “ Alpha Party Shareholder ” shall mean, as applicable, the beneficial owner of Holdings Common Stock at the First Effective Time or the beneficial owner of Class C-1 Common Stock at the Second Effective Time.
(iii)      “ Applicable Contura Share Price ” shall mean the closing price of a share of Contura Common Stock on the day of Closing (as reasonably determined by Contura), provided , that if (i) the Closing occurs after the close of trading on the NYSE or NASDAQ, as applicable, on the Closing Date (as determined by Contura), then the Applicable Contura Share Price shall be the opening price of the shares of Contura Common Stock (as determined by Contura) on the first day following Closing on which the NYSE or NASDAQ, as applicable, is open, and (ii) if Contura reasonably determines that the Applicable Contura Share Price should be determined as of some other time, it shall be determined as of such other time.
(iv)      “ Applicable Merger ” shall mean the Holdings Merger or the ANR Merger, as applicable.
(v)      “ FIRPTA Withholding Tax ” with respect to any Alpha Party Shareholder and an Applicable Merger shall equal the product of (x) 15%, (y) the number of shares of Contura Common Stock such Alpha Party Shareholder is entitled to receive as consideration in such Applicable Merger, and (z) the Applicable Contura Share Price.
(vi)      “ Tax Certificate ” shall mean (1) a certification, signed under penalties of perjury by an Alpha Party Shareholder and dated not more than 30 days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that such Alpha Party Shareholder is not a “foreign person” as defined in Section 1445 of the Code, or (2) if such Alpha Party Shareholder does not deliver the certification described in the preceding clause (1) and holds more than 5% of the shares of Contura Common Stock immediately following the Applicable Merger, a “notification of a nonrecognition transaction” with respect to such merger, signed under penalties of perjury, that satisfies the requirements of Treasury Regulation Section 1.1445-2(d)(2)(iii) and describes the law and facts supporting the claim that recognition of gain or loss is not required with respect to the transfer by such Alpha Party Shareholder.
(e)      Prior to the Closing, the parties to this Agreement shall cooperate in good faith to address the impact of Section 1504(a)(3) of the Code following the closing of the Mergers, including (if Contura so elects) in seeking a waiver from the Internal Revenue

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Service under Section 1504(a)(3)(B) of the Code, provided that Contura shall not submit such request for a waiver to the Internal Revenue Service without the prior written consent of the Alpha Parties (such consent not to be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, the consent of the Alpha Parties (1) shall not be required for communication by Contura or its advisors with the Internal Revenue Service on a “no names” basis and (2) may be withheld consistent with the preceding sentence if the Alpha Parties determine in their sole discretion that seeking the waiver is not advisable. Without limiting the generality of the foregoing and notwithstanding any other provision of this Agreement, (i) at the election of Contura and with the consent of the Alpha Parties (such consent not to be unreasonably withheld, conditioned or delayed), immediately after the Holdings Merger and immediately before the ANR Merger, the Holdings Merger Surviving Corporation may be merged with and into a limited liability company that is treated as disregarded from Contura for U.S. Federal income tax purposes (the “ Holdings Forward Merger ”) and (ii) if Contura has elected to have the Holdings Forward Merger occur, at the election of Contura and with the consent of the Alpha Parties (such consent not to be unreasonably withheld, conditioned or delayed), immediately after the Holdings Forward Merger and the ANR Merger, the ANR Merger Surviving Corporation may be merged with and into a limited liability company that is treated as disregarded from Contura for U.S. Federal income tax purposes (the “ ANR Forward Merger ” and collectively with the Holdings Forward Merger, the “ Forward Mergers ”), in each case, so long as Contura has received, at least three days prior to the Closing, a “should” level of opinion from Davis Polk & Wardwell LLP (or other nationally recognized firm reasonably acceptable to the Alpha Parties) (“ Tax Counsel ”) that, if to be effected, the Holdings Merger together with the Holdings Forward Merger, and, if to be effected, the ANR Merger together with the ANR Forward Merger, respectively, shall each constitute a reorganization within the meaning of Section 368(a) of the Code. If the Holdings Forward Merger is, or both Forward Mergers are, to be effected, each of the parties shall use its reasonable best efforts to deliver to Tax Counsel a Tax representation letter, dated as of the date of such opinion and signed by an officer, containing customary representations, warranties and covenants, and in form and substance reasonably satisfactory to such Tax Counsel, as is necessary, appropriate or customary to enable Tax Counsel to render the opinion(s) described in this ‎Section 5.17(e).
(f)      In the event that both Forward Mergers are effected, notwithstanding any other provision of this Agreement, Contura may, unless each of the Alpha Parties delivers an Alpha Company Certificate at least ten days prior to the Closing Date, (i) delay the deposit with the Exchange Agent of the shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be delivered to an Alpha Party Shareholder as consideration in an Applicable Merger until the earlier of (x) the time such Alpha Party Shareholder delivers to Contura a Tax Certificate and (y) 15 days after the closing of the Applicable Merger and (ii) if clause (y) applies with respect to any Alpha Party Shareholder, use commercially reasonable efforts to cause the Exchange Agent to take the actions specified in clauses (i), (ii), and (iii) of ‎Section 5.17(c) with respect to such Alpha Party Shareholder, subject to ‎Section 5.17(g).

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(g)      In the event that, despite the use of commercially reasonable efforts by Contura to obtain the agreement of the Exchange Agent to sell shares of Contura Common Stock on behalf of Alpha Party Shareholders (as contemplated by ‎Section 5.17(c) and ‎Section 5.17(f)), the Exchange Agent does not so agree, Contura may, unless each of the Alpha Parties delivers an Alpha Company Certificate at least ten days prior to the Closing Date, (i) delay the deposit with the Exchange Agent of the shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be delivered to an Alpha Party Shareholder as consideration in an Applicable Merger until the earlier of (x) the time such Alpha Party Shareholder delivers to Contura a Tax Certificate and (y) 15 days after the closing of an Applicable Merger and (ii) if clause (y) applies with respect to any Alpha Party Shareholder:
(i)      Contura shall promptly sell, on behalf of such Alpha Party Shareholder, shares of Contura Common Stock that (subject to the other provisions of this Agreement) would otherwise be delivered to such Alpha Party Shareholder as consideration in such Applicable Merger in sufficient number to yield net proceeds equal to the sum of (A) the FIRPTA Withholding Tax with respect to such Alpha Party Shareholder and such Applicable Merger and (B) the amount of costs, expenses and fees incurred by Contura, as applicable, in connection with selling such shares; which amount described in (B) shall be retained by Contura to reimburse it for such costs, expenses and fees;
(ii)      Contura shall promptly report and pay to the Internal Revenue Service as required by Treasury Regulations Section 1.1445-1; and
(iii)      Contura shall promptly deliver the remaining shares of Contura Common Stock to the Exchange Agent and the Exchange Agent shall (subject to the other provisions of this Agreement) deliver such shares to such Alpha Party Shareholder.
(h)      It is intended that, if either (i) the Holdings Forward Merger is effected, or (ii) both Forward Mergers are effected, the Holdings Merger together with the Holdings Forward Merger, and, if the ANR Forward Merger is effected, the ANR Merger together with ANR Forward Merger, shall each constitute a “reorganization” within the meaning of Section 368(a) of the Code, and that this Agreement shall constitute a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). Subject to the other provisions of this Agreement, each of the Alpha Parties and Contura shall use its reasonable best efforts (i) to cause the Holdings Merger together with the Holdings Forward Merger, if effected, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code, (ii) to cause the ANR Merger together with the ANR Forward Merger, if effected, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Holdings, ANR and Contura will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code and (iii) not to, and not permit or cause any of their respective Subsidiaries or Affiliates to, take or cause to be taken any action reasonably likely to cause either the Holdings Merger together with

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the Holdings Forward Merger, if effected, or the ANR Merger together with the ANR Forward Merger, if effected, to fail to qualify as a “reorganization” under Section 368(a) of the Code.
(i)      For the avoidance of doubt, the Forward Mergers shall be included amongst the transactions contemplated by this Agreement for all purposes hereunder (including, for the avoidance of doubt, for purposes of any representations and warranties of any party that address the consequences of the consummation of the transactions contemplated by this Agreement). The Holdings Forward Merger shall be deemed to occur simultaneously with the Holdings Merger, and the ANR Forward Merger shall be deemed to occur simultaneously with the ANR Merger, in each case for all purposes under the representations and warranties in ‎Article 3 and ‎Article 4. In addition, for all purposes under this Agreement, the entity that survives the Holdings Forward Merger shall thereafter be deemed to be the Holdings Merger Surviving Corporation and the entity that survives the ANR Forward Merger shall thereafter be deemed to be the ANR Merger Surviving Corporation.
(j)      Notwithstanding any other provision of this Agreement, Contura shall not be considered to violate (or be in breach of) any provision of this Agreement relating to the status of the Mergers contemplated by this Agreement as reorganizations within the meaning of Section 368 of the Code (including ‎Section 4.11(j), ‎Section 5.02, ‎Section 5.17(a) and ‎Section 5.17(h)) as a result of any action taken pursuant to the provisions of this Agreement relating to withholding.
ARTICLE 6
CONDITIONS TO CONSUMMATION OF THE MERGERS
Section 6.01.      Conditions to Each Party’s Obligation to Effect the Mergers . The respective obligations of the parties to effect the Mergers shall be subject to the satisfaction at or prior to the First Effective Time of the following conditions:
(a)      Stockholder Approvals . The Alpha Stockholder Approvals and the Contura Stockholder Approval shall have been obtained.
(b)      No Injunctions or Restraints; Illegality . No order, injunction, decree or other legal restraint issued by any Governmental Entity of competent jurisdiction or other Law, rule or legal restraint shall be in effect preventing, restraining or rendering illegal the consummation of any of the transactions contemplated by this Agreement. No Governmental Entity shall have commenced and not withdrawn any Proceeding seeking to enjoin, restrain or otherwise prohibit any of the transactions contemplated by this Agreement.
(c)      HSR Clearance . The waiting period under the HSR Act applicable to the Mergers shall have expired or early termination thereof shall have been granted without the imposition of a Materially Burdensome Condition.

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(d)      Form S-4 . The Form S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued and no Proceedings for that purpose shall have been initiated or threatened by the SEC.
Section 6.02.      Conditions to Obligations of Contura . The obligation of Contura to effect the Mergers is also subject to the satisfaction, or waiver by Contura, at or prior to the First Effective Time, of the following conditions:
(a)      Representations and Warranties of the Alpha Parties . (i) The representations and warranties of the Alpha Parties set forth in Sections ‎3.01(c), ‎3.03, ‎3.04, ‎3.06(b), ‎3.22, ‎3.23, ‎3.24 and ‎3.25 shall be true and correct in all respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), (ii) the representations and warranties of the Alpha Parties set forth in Sections ‎3.02(a), ‎3.02(b), ‎3.02(c), and ‎3.02(d) shall be true and correct in all but de minimis respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), and (iii) the other representations and warranties of the Alpha Parties set forth in ‎Article 3 shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Alpha Material Adverse Effect,” “in all material respects,” “material” or similar terms) as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date) except, in the case of this clause (iii), where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, an Alpha Material Adverse Effect.
(b)      Performance of Obligations of the Alpha Parties . Each Alpha Party shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the First Effective Time.
(c)      Officers Certificate . Contura shall have received a certificate signed on behalf of each Alpha Party by its Chief Executive Officer or Chief Financial Officer certifying as to the matters set forth in Sections ‎6.02(a) and ‎6.02(b).
(d)      Appraisal Shares . The aggregate number of Appraisal Shares (excluding, for purposes of this Section 6.01(d), any Appraisal Shares held by any Person who also holds more than 1% of the shares of Contura Common Stock outstanding as of the date of the Alpha Special Meetings and excluding any Appraisal Shares for which a demand for appraisal has been withdrawn, abandoned or lost) shall not equal more than 10% of

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the aggregate number of shares of Holdings Common Stock and Class C-1 Common Stock issued and outstanding as of immediately prior to the First Effective Time.
(e)      Consents . All waivers, consents and approvals set forth under ‎Section 6.02(e) of the Alpha Disclosure Schedule shall have been obtained, in each case in form and substance reasonably satisfactory Contura.
Section 6.03.      Conditions to Obligations of the Alpha Parties . The obligation of the Alpha Parties to effect the Mergers is also subject to the satisfaction or waiver by the Alpha Parties at or prior to the First Effective Time of the following conditions:
(a)      Representations and Warranties of Contura . (i) The representations and warranties of Contura set forth in Sections ‎4.03, ‎4.04, ‎4.06(b), ‎4.22, ‎4.23 and ‎4.24 shall be true and correct in all respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), (ii) the representations and warranties of Contura set forth in Sections ‎4.02(a), ‎4.02(b) and ‎4.02(c) shall be true and correct in all but de minimis respects, in each case, both as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date), and (iii) the other representations and warranties of Contura set forth in ‎Article 4 shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Contura Material Adverse Effect,” “in all material respects,” “material” or similar terms) as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation or warranty is expressly made as of an earlier date (in which case such representation or warranty shall be so true and correct on and as of such earlier date) except, in the case of this clause (iii), where the changes, effects, events or occurrences that resulted in any failures to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a Contura Material Adverse Effect.
(b)      Performance of Obligations of Contura . Contura shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the First Effective Time.
(c)      Listing . The shares of Contura Common Stock to be issued upon consummation of the Mergers shall have been authorized for listing on the NYSE or NASDAQ, subject to official notice of issuance.
(d)      Officers Certificate . ANR shall have received a certificate signed on behalf of Contura by its Chief Executive Officer or Chief Financial Officer certifying as to the matters set forth in Sections ‎6.03(a) and ‎6.03(b).

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(e)      Contura Charter Amendment . The Contura Stockholder Approval shall have been obtained and the Contura Charter Amendment shall have been filed with the Delaware Secretary of State and shall be effective.
ARTICLE 7
TERMINATION; AMENDMENT; WAIVER
Section 7.01.      Termination . This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time (notwithstanding that the Alpha Stockholder Approvals may have been obtained prior to the First Effective Time):
(a)      by mutual written consent of Contura and the Alpha Parties;
(b)      by either Contura, on the one hand, or by the Alpha Parties, on the other hand, if any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree or ruling enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement and such order, decree, or ruling shall have become final and non-appealable; provided that a party shall not have the right to terminate this Agreement pursuant to this ‎Section 7.01(b) if such party has breached any of its obligations under ‎Section 5.07 and such breach was the primary cause of, or primarily resulted in, the issuance of such order, decree or ruling;
(c)      by either Contura, on the one hand, or by the Alpha Parties, on the other hand, if the Mergers shall not have been consummated on or before the Outside Date; provided that the right to terminate pursuant to this ‎Section 7.01(c) shall not be available to any party whose breach of this Agreement or failure to perform or comply in all material respects with the covenants and agreements of such Person set forth in this Agreement was the primary cause of, or primarily resulted in, the failure of the Closing to occur on or prior to the Outside Date;
(d)      by either Contura, on the one hand, or by the Alpha Parties, on the other hand, if an Alpha Special Meeting shall have been convened and a vote with respect to the adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL) with respect to the Holdings Merger or the ANR Merger, as applicable, contained in this Agreement shall have been taken thereat (or at any adjournment or postponement thereof) and the applicable Alpha Stockholder Approval shall not have been obtained; provided that a party shall not have the right to terminate this Agreement pursuant to this ‎Section 7.01(d) if such party has materially breached any of its obligations under ‎Section 5.05;
(e)      by the Alpha Parties, if there shall have been a breach by Contura of any of its covenants, agreements, representations or warranties set forth in this Agreement which breach, either individually or in the aggregate, would result, if occurring or continuing at the First Effective Time, in the failure of the conditions set forth in ‎Section 6.03(a) or ‎6.03(b), as the case may be, and which is not cured on or before the earlier of the Outside Date and the 30th day following written notice to Contura, or which by its nature cannot be cured within such time period; provided that the Alpha Parties shall not have the right

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to terminate this Agreement pursuant to this ‎Section 7.01(e) if any Alpha Party is then in material breach of this Agreement;
(f)      by Contura, if there shall have been a breach by any Alpha Party of any of its covenants, agreements, representations or warranties set forth in this Agreement, which breach, either individually or in the aggregate, would result, if occurring or continuing at the First Effective Time, in the failure of the conditions set forth in ‎Section 6.02(a) or ‎6.02(b), as the case may be, and which is not cured on or before the earlier of the Outside Date and the 30th day following written notice to ANR, or which by its nature cannot be cured within such time period; provided that Contura shall not have the right to terminate this Agreement pursuant to this ‎Section 7.01(f) if Contura is then in material breach of this Agreement;
(g)      by Contura, prior to obtaining the Alpha Stockholder Approvals, if (i) a Change of Alpha Board Recommendation shall have occurred, (ii) the Holdings Board and the ANR Board shall have failed to recommend against any publicly announced Alpha Acquisition Proposal and reaffirm the Alpha Board Recommendation, in each case, within ten Business Days following the public announcement of such Alpha Acquisition Proposal and in any event at least four Business Days prior to the Alpha Special Meetings, (iii) the Alpha Parties shall have failed to include the Alpha Board Recommendations in the Joint Proxy Statement distributed to their stockholders or (iv) either Alpha Party shall have failed to perform in any material respect any of its obligations under ‎Section 5.03 or ‎Section 5.05;
(h)      by the Alpha Parties at any time prior to the twenty fifth Business Day following the date of this Agreement, if the Contura Charter Amendment has not been approved by (i) the beneficial owners of a majority of the outstanding shares of Contura Common Stock within three Business Days after the execution and delivery of this Agreement or (ii) the record holders of a majority of the outstanding shares of Contura Common Stock within twenty Business Days after the execution and delivery of this Agreement;
(i)      by the Alpha Parties, if Contura enters into a binding agreement to consummate, or consummates, a Contura Sale Transaction; or
(j)      by the Alpha Parties, if (i) at any time following the Alpha Special Meetings and prior to the First Effective Time, the condition set forth in Section 6.02(d) shall not have been satisfied or irrevocably waived by Contura, and (ii) within five Business Days following written notice by the Alpha Parties to Contura that the Alpha Parties request the waiver of such condition, Contura shall not have irrevocably waived such condition in a written notice delivered to the Alpha Parties.
The party desiring to terminate this Agreement pursuant to any of clauses ‎(b) through ‎(j) of this ‎Section 7.01 shall give written notice of such termination to the other party in accordance with ‎Section 8.05, specifying the provision or provisions hereof pursuant to which such termination is effected.

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Section 7.02.      Effect of Termination . If this Agreement is terminated and the Mergers are abandoned pursuant to ‎Section 7.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party or its directors, officers or stockholders, other than the provisions of ‎Section 5.06(b), this ‎Section 7.02, ‎Section 7.03, ‎Section 7.04 and ‎Section 7.05 and ‎Article 8, which provisions shall survive such termination; provided, however, no such termination shall relieve or release any party from any liabilities or damages resulting from any Willful Breach occurring prior to the termination of this Agreement.
Section 7.03.      Fees and Expenses . (a) Whether or not the Mergers are consummated, except as otherwise specifically provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.
(b)      If (a) at any time after the date of this Agreement an Alpha Acquisition Proposal shall have been made directly to the stockholders of any Alpha Party or otherwise become publicly known or any Person shall have publicly announced or made known an intention (whether or not conditional) to make an Alpha Acquisition Proposal, and, in each case, such Alpha Acquisition Proposal has not been publicly withdrawn at the time of the event giving rise to termination of this Agreement as described in clause ‎(ii) below, and (ii) following the occurrence of an event described in the preceding clause ‎(i), this Agreement is terminated by Contura or the Alpha Parties pursuant to ‎Section 7.01(c) or ‎Section 7.01(d) or by Contura pursuant to ‎Section 7.01(f), and (iii) either (A) on or before the date that is twelve months after the date of such termination described in clause ‎(ii) above, any Alpha Party consummates any Alpha Acquisition Proposal (whether or not the same Alpha Acquisition Proposal described in clause ‎(i)) or (B) on or before the date that is twelve months after the date of such termination described in clause ‎(ii) above, any Alpha Party enters into a definitive agreement in respect of any Alpha Acquisition Proposal (whether or not the same Alpha Acquisition Proposal described in clause ‎(i)), then the Alpha Parties shall pay to Contura, the Termination Fee on the date of the event described in clause ‎(iii)‎(A) or ‎(iii)‎(B); provided that for purposes of only this ‎Section 7.03(b), the term “ Alpha Acquisition Proposal ” shall have the meaning assigned to such term in ‎Section 5.03(h), except that the references therein to “20%” shall be deemed to be references to “more than 50%.”
(c)      If Contura terminates this Agreement pursuant to ‎Section 7.01(g) (or if this Agreement is terminated pursuant to ‎Section 7.01(d) at a time when Contura could have terminated this Agreement pursuant to ‎Section 7.01(g)), then the Alpha Parties shall pay to Contura, as promptly as reasonably practicable (and in any event within two Business Days) after such termination, the Termination Fee.
(d)      If this Agreement is terminated pursuant to ‎Section 7.01(d), the Alpha Parties shall reimburse Contura and its Affiliates (by wire transfer of immediately available funds), no later than two Business Days after submission of documentation therefor, for 100% of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with or related to the

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transactions contemplated by this Agreement (the “ Expense Reimbursement ”), up to an aggregate maximum reimbursement of $9,000,000.
(e)      If this Agreement is terminated pursuant to (x) Section 7.01(b) and the applicable order, decree or ruling giving rise to such termination right is issued under or pursuant to any Antitrust Law, or (y) Section 7.01(c) and, in either case, at the time of such termination all of the conditions set forth in Section 6.01 (other than Section 6.01(b) (with respect to matters under Antitrust Laws) and Section 6.01(c)) and Section 6.02 (other than those conditions that by their nature are to be satisfied at the Closing but which conditions would be satisfied if the Closing Date were the date of termination) have been satisfied, then, Contura shall pay to the Alpha Parties, as promptly as reasonably practicable (and in any event within two Business Days) after such termination, the Reverse Termination Fee.
(f)      For purposes of this Agreement, “ Termination Fee ” means an amount in cash equal to $19,000,000. The Termination Fee shall be paid (when due and owing) by the Alpha Parties to Contura by wire transfer of immediately available funds to the account designated in writing by Contura.
(g)      For purposes of this Agreement, “ Reverse Termination Fee ” means an amount in cash equal to $19,000,000. The Reverse Termination Fee shall be paid (when due and owing) by the Contura to the Alpha Parties by wire transfer of immediately available funds to the account designated in writing by the Alpha Parties.
(h)      Each party hereto acknowledges that the agreements contained in this ‎Section 7.03 are an integral part of the transactions contemplated by this Agreement. In the event that the Alpha Parties shall fail to pay the Termination Fee or the Expense Reimbursement (or any portions of the Termination Fee or the Expense Reimbursement) when due, the Alpha Parties shall reimburse Contura for all reasonable costs and expenses actually incurred or accrued by Contura (including reasonable expenses of counsel) in connection with the collection under and enforcement of this ‎Section 7.03, together with interest on the amount of such amount or portion thereof at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment. In the event that Contura shall fail to pay the Reverse Termination Fee (or any portions of the Reverse Termination Fee) when due, Contura shall reimburse the Alpha Parties for all reasonable costs and expenses actually incurred or accrued by the Alpha Parties (including reasonable expenses of counsel) in connection with the collection under and enforcement of this ‎Section 7.03, together with interest on the amount of such amount or portion thereof at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
(i)      In no event shall the Alpha Parties be required to pay the Termination Fee or Expense Reimbursement on more than one occasion. Any amounts paid by the Alpha Parties with respect to the Expense Reimbursement shall be credited towards any future amounts payable by the Alpha Parties with respect to the Termination Fee. In no event shall Contura be required to pay the Reverse Termination Fee on more than one occasion.

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(j)      Except in the case of Willful Breach, each party agrees that notwithstanding anything in this Agreement to the contrary, (i) in the event that the Termination Fee becomes payable and is actually paid in accordance with this Section 7.03, the payment of such Termination Fee shall be the sole and exclusive remedy of Contura and its Affiliates and its and their respective stockholders, officers, directors, employees and Representatives against the Alpha Parties or any of their respective Representatives or Affiliates, (ii) in the event that the Reverse Termination Fee becomes payable and is actually paid in accordance with this Section 7.03, the payment of such Reverse Termination Fee shall be the sole and exclusive remedy of the Alpha Parties and their respective Affiliates and its and their respective stockholders, officers, directors, employees and Representatives against Contura or any of their respective Representatives or Affiliates, (iii) in no event will any party or its Affiliates or its and their respective stockholders, officers, directors, employees or Representatives seek to recover any other money damages or seek any other remedy based on a claim at law or in equity with respect to (A) any loss suffered, directly or indirectly, as a result of the failure of the Mergers to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, (iv) upon payment of any Termination Fee in accordance with this Section 7.03, no Alpha Party nor any of its Affiliates or Representatives shall have any further liability or obligation to Contura or its Affiliates or its and their respective stockholders, officers, directors, employees or Representatives relating to or arising out of this Agreement or the transactions contemplated hereby, except as provided in ‎Section 7.02, and (v) upon payment of any Reverse Termination Fee in accordance with this Section 7.03, neither Contura nor any of its Affiliates or Representatives shall have any further liability or obligation to any Alpha Party or its Affiliates or its and their respective stockholders, officers, directors, employees or Representatives relating to or arising out of this Agreement or the transactions contemplated hereby, except as provided in ‎Section 7.02.
Section 7.04.      Amendment . To the extent permitted by applicable Law, this Agreement may be amended at any time before or after the Alpha Stockholder Approvals but, after such adoption of the Alpha Stockholder Approvals, no amendment shall be made which modifies the Merger Consideration, or which requires the approval of the stockholders of the Alpha Parties under the DGCL, without the approval of the stockholders of the Alpha Parties. This Agreement may not be amended, changed, supplemented or otherwise modified except by an instrument in writing signed on behalf of all of the parties hereto.
Section 7.05.      Extension; Waiver; Remedies . (a) At any time prior to the Closing, each party hereto may, to the extent permitted by applicable Law, (i) extend the time for the performance of any of the obligations or other acts of any other party hereto, (ii) waive any inaccuracies in the representations and warranties contained herein by any other party or in any document, certificate or writing delivered pursuant hereto by any other party, or (iii) waive compliance by any other party with any of the agreements or conditions contained herein. Any agreement on the part of any party to any such

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extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party against which such waiver or extension is to be enforced.
(b)      The failure of any party hereto to exercise any rights, power or remedy provided under this Agreement, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.
ARTICLE 8
MISCELLANEOUS
Section 8.01.      Representations and Warranties . The representations and warranties made in Articles ‎3 and ‎4 or any instrument delivered pursuant to this Agreement shall not survive beyond the Closing. Each covenant or agreement of the parties in this Agreement shall not survive beyond the Closing, other than any covenant or agreement that by its terms contemplates performance after the Closing, including Sections ‎1.04, ‎5.08, and ‎5.09, which shall survive until fully performed.
Section 8.02.      Entire Agreement; Assignment . This Agreement, together with the Alpha Disclosure Schedule, the Contura Disclosure Schedule, and the Confidentiality Agreement and the exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to subject matter hereof. The Agreement shall not be assigned by any party by operation of law or otherwise without the prior written consent of the other parties.
Section 8.03.      Jurisdiction; Venue . Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of the Court of Chancery of the State of Delaware or if jurisdiction in such court is not available, any court of the United States located in the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action or proceeding relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the Court of Chancery of the State of Delaware or, if under applicable law exclusive jurisdiction over such matter is vested in the federal courts, any court of the United States located in the State of Delaware.
Section 8.04.      Validity; Specific Performance . (a) If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of law or public policy in any jurisdiction, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect and shall not be affected thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced in any jurisdiction, this Agreement will be reformed, construed and enforced in such jurisdiction

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so as to effect the original intent of the parties as closely as possible to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
(a)      The parties hereto agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any provision of this Agreement were not performed in accordance with their specific terms hereof or were otherwise breached and that it is accordingly agreed that, prior to termination of this Agreement, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or equity. No party shall be required to provide, furnish or post any bond or other security in connection with any such injunction or proceeding for specific performance, and each party hereby irrevocably waives any right it may have to require the provision, furnishing or posting of any such bond or other security.
Section 8.05.      Notices . All notices, requests, claims, demands and other communications hereunder shall be given (and shall be deemed to have been duly received if given) by hand delivery in writing, by email transmission with confirmation of receipt or by recognized overnight courier service, as follows:
if to Contura
 
 
 
 
 
Contura Energy, Inc.
P.O. Box 848, Bristol, TN 37621-0848 (U.S. mail)
340 Martin Luther King Jr. Blvd., Bristol, TN 37620 (physical address)
 
Attention:
 
Mark M. Manno, Chief Legal Officer
 
Email:
 
mark.manno@conturaenergy.com
 
 
 
 
with a copy to:
 
 
 
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
 
Attention:
 
William L. Taylor
Lee Hochbaum
 
Email:
 
william.taylor@davispolk.com
lee.hochbaum@davispolk.com
 
 
 
 
if to an Alpha Party:
 
 
 
 
 
ANR, Inc.
300 Running Right Way
Julian, West Virginia 25529
 
Attention:
 
Andrew B. McCallister
 
Email:
 
dmccallister@alphanr.com
 
 
 
 
with a copy to:

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Katten Muchin Rosenman LLP
575 Madison Avenue
New York, New York 10022
Attention:
 
Steven Reisman
Mark D. Wood
Evan Borenstein
Email:
 
sreisman@kattenlaw.com
mark.wood@kattenlaw.com
evan.borenstein@kattenlaw.com
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
Section 8.06.      Governing Law . This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts made and to be performed entirely within that State.
Section 8.07.      Descriptive Headings . The descriptive headings herein (including the Table of Contents) are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
Section 8.08.      Parties in Interest . This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement, except (i) from and after (and at no time before) the Closing: (A) the provisions of Section 1.04 shall be for the benefit of and enforceable by the Initial Alpha Director Designees and the Alpha Directors, (B) the provisions of ‎Article 2 providing for the delivery of Merger Consideration shall be for the benefit of and enforceable by the holders of Holdings Common Stock at the First Effective Time and the holders of Class C-1 Common Stock at the Second Effective Time, (C) the provisions of Section 5.09(c) shall be for the benefit of and enforceable by the disqualified individuals described therein, and (D) the provisions of ‎Section 2.03 shall be for the benefit of and enforceable by the holders of ANR Stock Options and the ANR RSUs at the Second Effective Time and (ii) from and after (and at no time before) the Closing, the provisions set forth in ‎Section 5.08 of this Agreement shall be for the benefit of and enforceable by the Indemnified Parties in accordance with ‎Section 5.08(e). Without creating any third party beneficiary rights whatsoever, after the termination of this Agreement without the Closing having occurred, the Alpha Parties may, on behalf of the stockholders of the Alpha Parties as a group, pursue damages exclusively pursuant and subject to the proviso to ‎Section 7.02 and such damages, if any, shall be determined based on the damages to the stockholders of the Alpha Parties as a group.
Section 8.09.      Interpretation . When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import when

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used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” shall not be exclusive. Whenever used in this Agreement, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. For the purposes of this Agreement, any document which is described as being “provided”, “delivered”, “furnished” or “made available” shall be treated as such only if copies of such documents have been included in the applicable party’s virtual data site for the transactions contemplated by this Agreement no later than 10:00 pm Eastern Time on the date of this Agreement. All exhibits and schedules (including the Alpha Disclosure Schedule and Contura Disclosure Schedule) annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
Section 8.10.      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
Section 8.11.      Certain Definitions . For purposes of this Agreement, the following terms shall have the following meanings:
“ Affiliate ” has the meaning given to such terms in Rule 12b-2 under the Exchange Act.
“ Alpha Material Adverse Effect ” means any change, effect, circumstance, event or occurrence that is materially adverse to (i) the assets, liabilities, business, condition (financial or otherwise) or results of operations of the Alpha Parties and their respective Subsidiaries, taken as a whole, or (ii) the ability of either Alpha Party to timely perform its obligations under this Agreement or to timely consummate the transactions contemplated hereby; provided, however, that, in the case of clause (i) only, changes, effects, circumstances, events or occurrences shall not be deemed to constitute, and shall not be taken into account in determining whether there has been or will be, an Alpha Material Adverse Effect to the extent resulting from (1) general changes after the date hereof in general economic conditions or in the industries in which the Alpha Parties and their respective Subsidiaries operate; (2) changes in Law of general applicability or interpretations thereof by Governmental Entities or changes in generally accepted accounting principles or in accounting standards; (3) the execution, announcement, pendency or performance of this Agreement or the consummation of the transactions contemplated hereby, including the impact thereof on relationships with customers, suppliers, distributors, partners or employees, or any litigation arising relating to this Agreement or the transactions contemplated by this Agreement (provided that this clause (3) shall not apply to the representations and warranties and related conditions contained in this Agreement that, by their terms, speak of the consequences arising out of the execution or performance of this Agreement or the consummation of the transactions contemplated hereby); (4) acts of war or terrorism (or the escalation of the foregoing); (5) a decrease in the market price or volume of the Alpha Capital Stock in and of itself (and not the underlying causes thereof); and (6) the fact, in and of itself (and not the

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underlying causes thereof) that the Alpha Parties or their respective Subsidiaries failed to meet any projections, forecasts, or revenue or earnings predictions; except to the extent, in the case of clauses (1), (2) and (4), such change, effect, circumstance, event or occurrence has a material and disproportionate effect on the Alpha Parties and their respective Subsidiaries, taken as a whole, compared with other companies operating in the industries in which the Alpha Parties and their respective Subsidiaries operate (and in any such case, only such disproportionate impact shall be taken into account for purposes of determining if an Alpha Material Adverse Effect has occurred).
“ ANR Option New Share Amount ” means the number of shares of Class C-1 Common Stock, and if not a whole number, rounded down to the nearest whole number, computed using the following formula: X = (Y * (A – B ))/A, where:
(i)      X = the number of shares of Class C-1 Common Stock to be issued to the applicable ANR Stock Option holder;
(ii)      Y = the total number of shares of Class C-1 Common Stock underlying the applicable ANR Stock Option;
(iii)      A = the Per ANR Share Price; and
(iv)      B = the per share exercise price of the applicable ANR Stock Option;
provided that if B is equal to or greater than A, the ANR Option New Share Amount shall be zero (0).
“ ANR Plan ” means each “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, including each bonus, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based or other employee benefit plan, program, policy, practice, arrangement, agreement, fund or commitment, and each employment, retention, consulting, change in control, salary continuation, termination or severance plan, program, policy, practice, arrangement or agreement entered into, maintained, sponsored or contributed to by ANR or any of its Subsidiaries or to which ANR or any of its Subsidiaries has any obligation to contribute, or with respect to which ANR or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including a liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any Alpha Service Provider or to any beneficiary or dependent thereof.
“ Bankruptcy Plan ” means the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, dated May 27, 2016, as modified and confirmed by the Order Confirming Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as Modified (Docket No. 3038), entered by the Bankruptcy Court on July 12, 2016 in connection with to the Bankruptcy Cases.

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“ beneficial ownership ” has the meaning given to such term in Rule 13d-3 under the Exchange Act. Phrases such as “ beneficially own ” or “ own beneficially ” have correlative meanings.
“ Business Day ” means any day other than a Saturday or Sunday or a day on which banks are required or authorized to close in New York, New York.
“ Confidentiality Agreement ” means the confidentiality agreement dated January 29, 2018 by and between ANR and Contura.
“ Controlled Group Liability ” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code and (iv) under corresponding or similar provisions of foreign Laws.
“ Contura Material Adverse Effect ” means any change, effect, circumstance, event or occurrence that is materially adverse to (i) the assets, liabilities, business, condition (financial or otherwise) or results of operations of Contura and its Subsidiaries, taken as a whole, or (ii) the ability of Contura to timely perform its obligations under this Agreement or to timely consummate the transactions contemplated hereby; provided, however, that, in the case of clause (i) only, changes, effects, circumstances, events or occurrences shall not be deemed to constitute, and shall not be taken into account in determining whether there has been or will be, an Contura Material Adverse Effect to the extent resulting from (1) general changes after the date hereof in general economic conditions or in the industries in which Contura and its Subsidiaries operate; (2) changes in Law of general applicability or interpretations thereof by Governmental Entities or changes in generally accepted accounting principles or in accounting standards; (3) the execution, announcement, pendency or performance of this Agreement or the consummation of the transactions contemplated hereby, including the impact thereof on relationships with customers, suppliers, distributors, partners or employees, or any litigation arising relating to this Agreement or the transactions contemplated by this Agreement (provided that this clause (3) shall not apply to the representations and warranties and related conditions contained in this Agreement that, by their terms, speak of the consequences arising out of the execution or performance of this Agreement or the consummation of the transactions contemplated hereby); (4) acts of war or terrorism (or the escalation of the foregoing); (5) a decrease in the market price or volume of shares of Contura Common Stock in and of itself (and not the underlying causes thereof); and (6) the fact, in and of itself (and not the underlying causes thereof) that Contura or its Subsidiaries failed to meet any projections, forecasts, or revenue or earnings predictions, except to the extent, in the case of clauses (1), (2) and (4), such change, effect, circumstance, event or occurrence has a material and disproportionate effect on Contura and its Subsidiaries, taken as a whole, compared with other companies operating in the industries in which Contura and its Subsidiaries operate (and in any such case, only such disproportionate impact shall be taken into account for purposes of determining if an Contura Material Adverse Effect has occurred).
“ Contura Plan ” means each “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, including each bonus, profit sharing,

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deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based or other employee benefit plan, program, policy, practice, arrangement, agreement, fund or commitment, and each employment, retention, consulting, change in control, salary continuation, termination or severance plan, program, policy, practice, arrangement or agreement entered into, maintained, sponsored or contributed to by Contura or any of its Subsidiaries or to which Contura or any of its Subsidiaries has any obligation to contribute, or with respect to which
Contura or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including a liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any Contura Service Provider or to any beneficiary or dependent thereof.
“ DTA ” means Dominion Terminal Associates, a Virginia partnership.
“ EPA Consent Decree ” means the Consent Decree entered by the United States District Court for the Southern District of West Virginia, Charleston Division, on November 26, 2014, in United States of America, et al. v. Alpha Natural Resources, Inc., et al., Civ. No. 2:14-cv-11609.
“ ERISA Affiliate ” with respect to any entity means any trade or business, whether or not incorporated, that, together with such first entity or any of its respective Subsidiaries would be deemed to be a “single employer” within the meaning of Section 4001(b) of ERISA.
“ Exchange Ratio ” means 0.4071.
“ Excluded Intervening Event ” means (1) general changes after the date hereof in general economic conditions or in the industries in which the Alpha Parties, Contura or their Subsidiaries operate; (2) changes in Law of general applicability or interpretations thereof by Governmental Entities or changes in generally accepted accounting principles or in accounting standards; (3) the execution, announcement, pendency or performance of this Agreement or the consummation of the transactions contemplated hereby, including the impact thereof on relationships with customers, suppliers, distributors, partners or employees, or any litigation arising from or relating to this Agreement or the transactions contemplated by this Agreement; (4) acts of war or terrorism (or the escalation of the foregoing); (5) a decrease in the market price or volume of shares of Alpha Capital Stock or Contura Common Stock in and of itself (and not the underlying causes thereof); and (6) the fact, in and of itself (and not the underlying causes thereof) that the Alpha Parties, Contura or their Subsidiaries failed to meet any projections, forecasts, or revenue or earnings predictions except to the extent, in the case of clauses (1), (2) and (4), such change, effect, circumstance, event or occurrence has a material and disproportionate effect on the Alpha Parties and their respective Subsidiaries, taken as a whole, or Contura and its Subsidiaries, taken as a whole, compared with other companies operating in the industries in which the Alpha Parties, Contura and their respective Subsidiaries operate.
“ Indebtedness ” of any Person means, as of any date, the amount equal to the sum (without any double-counting) of the following obligations (whether or not then due and

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payable), to the extent they are of such Person or its Subsidiary or guaranteed by such Person or its Subsidiary as of such date: (i) all outstanding indebtedness for borrowed money owed to third parties, (ii) accrued interest payable with respect to Indebtedness referred to in clause (i), (iii) all obligations for the deferred purchase price of property or services (including any potential future earnout, purchase price adjustment or similar payments but not including trade payables in the ordinary course of business consistent with past practice), (iv) all obligations evidenced by notes, bonds, debentures or other similar instruments (whether or not convertible), (v) all obligations under indentures or arising out of any financial hedging, swap or similar arrangements, and (vi) all obligations as lessee that would be required to be capitalized in accordance with GAAP.
“ Independence Standards ” means the applicable independence standards for service on the Contura Board under the NYSE listing standards (or the NASDAQ listing standards, if applicable), the rules and regulations of the SEC or Contura’s written corporate governance guidelines (as such guidelines apply to all non-employee members of the Contura Board).
“ knowledge ” means (i) with respect to any Alpha Party, the actual knowledge of the individuals listed in Section 8.11(a) of the Alpha Disclosure Schedule after reasonable inquiry and (ii) with respect to Contura, the actual knowledge of the individuals listed in Section 8.11(a) of the Contura Disclosure Schedule after reasonable inquiry.
“ Lien ” means any mortgage, deed of trust, lien (statutory or other), pledge, security interest, claim, covenant, condition, restriction, option, right of first offer or refusal, charge, easement, right-of-way, encroachment, third party right, limitation in voting right or other encumbrance or title defect of any kind or nature.
“ NASDAQ ” means the NASDAQ Global Market or the NASDAQ Global Select Market.
“ NYSE ” means the New York Stock Exchange.
“ Outside Date ” means December 29, 2018.
“ Per ANR Share Price ” means the product of (a) the arithmetic average of the Weighted Average Price of the Contura Common Stock on each of the 15 consecutive Trading Days ending on the second to last Trading Day prior to the Second Effective Time (the “ Per Contura Share Price ”), and (b) the Exchange Ratio.
“ Owner Trust ” means Bank of Utah, not in its individual capacity, but solely as owner trustee under the Trust Agreement N731BP dated July 26, 2016.
“ Permit ” means any registration, application, license, request for exemption, clearance, approval, permit, franchise and other regulatory authorization, in each instance, from Governmental Entities having jurisdiction.

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“ Permitted Liens ” means (i) statutory liens securing payments not yet due, (ii) such imperfections or irregularities of title, easements, trackage rights, leases, licenses, special assessments, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, do not materially affect the use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties, (iii) mortgages, or deeds of trust, security interests or other encumbrances on title related to indebtedness reflected on the consolidated financial statements (x) of the Alpha Parties set forth in Section 8.11(b) of the Alpha Disclosure Schedule or (y) of Contura set forth in Section 8.11(b) of the Contura Disclosure Schedule, (iv) Liens for Taxes not yet due and payable or that are being contested in good faith and by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP, (v) mechanics’, materialmen’s or other Liens or security interests arising by operation of law that secure a liquidated amount that are being contested in good faith and by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP, (vi) any other Liens that would not be material to the Alpha Parties or Contura, as applicable, (vii) pledges or deposits to secure obligations under workers’ compensation Laws or similar legislation or to secure public or statutory obligations, and (viii) pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary course of business.
“ Person ” means any individual, corporation, limited liability company, partnership, association, trust, estate or other entity or organization, including any Governmental Entity.
“ Representatives ” means, when used with respect to any Person, the directors, officers, employees, consultants, financial advisors, accountants, legal counsel, investment bankers, and other agents, advisors and representatives of such Person, as applicable, and its Subsidiaries.
“ Subsidiary ” means, when used with reference to a Person, any other Person (other than natural persons) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions, or a majority of the outstanding voting securities of which, are owned directly or indirectly by such first Person; provided that, for purposes of this Agreement, neither DTA nor Owner Trust shall be deemed a Subsidiary of Contura.
“ Trading Day ” means any Business Day on which the Contura Common Stock is traded in the over-the- counter market.
“ Treasury Regulations ” means the regulations promulgated under the Code, as amended from time to time (including any successor regulations).
“ Weighted Average Price ” means the dollar volume-weighted average price for the Contura Common Stock in the over-the-counter market during the period beginning at 9:30 a.m., New York City time, and ending at 4:00 p.m., New York City time, as

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reported by Bloomberg Markets (or any successor thereto, “ Bloomberg ”) through its “Volume at Price” function, or, if no dollar volume-weighted average price is reported for the Contura Common Stock by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for the Contura Common Stock as reported by OTC Markets Group (or any successor thereto). All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during any period during which the arithmetic average of the Weighted Average Prices is being determined.
“ Willful Breach ” means a material breach of, or failure to perform any of the covenants or other agreements contained in, this Agreement that is a consequence of an act or failure to act by the breaching or non-performing party with actual knowledge, or knowledge that a Person acting reasonably under the circumstances should have, that such party’s act or failure to act would result in or constitute a breach of or failure of performance under this Agreement.
[ Remainder of page intentionally left blank. ]

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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its officers thereunto duly authorized, all at or on the day and year first above written.

CONTURA ENERGY, INC.
By:
/s/ Mark M. Manno
 
Name: Mark M. Manno
 
Title: Executive Vice President,
Chief Administrative and Legal
Officer & Secretary

PRIME ACQUISITION I, INC.
By:
/s/ J. Scott Kreutzer
 
Name: J. Scott Kreutzer
 
Title: President

PRIME ACQUISITION II, INC.
By:
/s/ J. Scott Kreutzer
 
Name: J. Scott Kreutzer
 
Title: President



IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its officers thereunto duly authorized, all at or on the day and year first above written.

ALPHA NATURAL RESOURCES HOLDINGS, INC.
 
 
By:
/s/ David J. Stetson
 
Name: David J. Stetson
 
Title: Chairman and Chief Executive
Officer

ANR, INC.
 
 
By:
/s/ David J. Stetson
 
Name: David J. Stetson
 
Title: Chairman and Chief Executive
Officer

B-2

Exhibit 2.2






ASSET PURCHASE AGREEMENT
BY AND AMONG
BLACKJEWEL L.L.C.,
AS PURCHASER,
CONTURA COAL WEST, LLC, CONTURA WYOMING
LAND, LLC, AND CONTURA COAL SALES, LLC,
AS SELLER,
SOLELY FOR PURPOSES OF SECTION 8.5(a) AND SECTION 8.8,
CONTURA ENERGY SERVICES, LLC,
AND, SOLELY FOR PURPOSES OF SECTION 12.6,
CONTURA ENERGY, INC.


DECEMBER 7, 2017




     TABLE OF CONTENTS      
 
 
PAGE

Article I DEFINITIONS
2

1.1
Definitions
2

Article II PURCHASED ASSETS; ASSUMED LIABILITIES
13

2.1
Assets to be Transferred
13

2.2
Retained Assets
15

2.3
Assumed Liabilities
16

2.4
Retained Liabilities
17

Article III PURCHASE AND SALE
19

3.1
Purchase and Sale of Purchased Assets
19

3.2
Allocation
19

3.3
Apportionment of Utility Charges
19

3.4
Wyoming Production Tax Liabilities
19

3.5
Maintenance Contracts
20

3.6
Partial Assignment Contracts and Partial Assignment Software
21

Article IV CLOSING AND DELIVERIES
21

4.1
Closing
21

4.2
Deliveries by the Seller
21

4.3
Deliveries by the Purchaser
23

Article V REPRESENTATIONS AND WARRANTIES OF THE SELLER
24

5.1
Organization of the Seller
24

5.2
Authority of the Seller
24

5.3
No Conflict or Violation
24

5.4
Contracts
25

5.5
Compliance with Legal Requirements; Permits.
25

5.6
Real Property.
26

5.7
Title to Purchased Assets
27

5.8
Litigation
28

5.9
Taxes
28

5.1
Mining and Environmental Matters
29

5.11
Labor Matters
30

5.12
Permitting
31

5.13
Brokers
31

5.14
Employee Benefits
31

Article VI REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
31

6.1
Organization and Authority of Purchaser
31

6.2
No Conflict or Violation
32

6.3
Consents
32


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6.4
Litigation
32

6.5
Brokers
32

6.6
Sufficiency of Funds
32

6.7
Permitting
33

6.8
Ownership and Control File
33

6.9
Federal Coal Lease Qualifications
33

Article VII TAX MATTERS
33

7.1
Tax Cooperation; Allocation of Taxes
33

7.2
Tax Treatment
34

Article VIII CERTAIN COVENANTS AND AGREEMENTS
35

8.1
Interim Operations
35

8.2
Reasonable Access
36

8.3
Notification of Certain Matters
36

8.4
Efforts to Meet Conditions to Closing.
36

8.5
Certain Provisions Relating to Consents; Release of Guarantees.
38

8.6
Permitting.
41

8.7
Further Assurances
43

8.8
Transition Services
43

8.9
Correspondence
44

8.1
Employees.
44

8.11
Bulk-Sales Laws
46

8.12
Disclaimer of Warranties
46

8.13
Schedules
46

Article IX CONDITIONS TO CLOSING
47

9.1
Conditions to Obligations of Each Party
47

9.2
Conditions to Obligations of the Purchaser
47

9.3
Conditions to Obligations of the Seller
47

9.4
Frustration of Closing Conditions
48

Article X TERMINATION OF AGREEMENT
48

10.1
Right to Terminate
48

10.2
Effect of Termination
49

Article XI SURVIVAL OF REPRESENTATIONS AND WARRANTIES
49

11.1
Survival
49

Article XII INDEMNIFICATION
50

12.1
General Indemnification Obligation.
50

12.2
Indemnification Procedures
52

12.3
Specific Performance
52

12.4
Exclusive Remedies
52

12.5
Additional Security for Purchaser’s Performance
53

12.6
Covenant Regarding Seller’s Performance
53


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Article XIII MISCELLANEOUS PROVISIONS
53

13.1
Notices
53

13.2
Waivers and Amendments
54

13.3
Fees and Expenses
55

13.4
Successors and Assigns
55

13.5
Consent to Jurisdiction
55

13.6
Governing Law
55

13.7
Waiver of Jury Trial
55

13.8
Severability
56

13.9
Entire Agreement
56

13.1
Construction
56

13.11
Incorporation of Exhibits and Schedules
56

13.12
Headings
57

13.13
Counterparts
57

13.14
Announcements
57

13.15
Third Parties
57


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EXHIBITS
 
Exhibit A-1
Form of Bill of Sale
Exhibit B
Form of Liabilities Assignment and Assumption Agreement
Exhibit C
Form of Lease Assignment
Exhibit D
Form of Contract Assignment
Exhibit E
Form of Permit Operating Agreement
Exhibit F
Form of Deed
Exhibit G
Form of Royalty Agreement
Exhibit H
Form of Back-To-Back Coal Supply Agreement
Exhibit I
Form of Purchaser Corporate Guaranty
Exhibit J
Projected Payments
 
 
SCHEDULES
 
Schedule ‎‎1.1(a)
Lease Bonds and Reclamation Performance Bonds
Schedule ‎1.1(b)
Leased Real Property
Schedule ‎‎‎1.1(c)
Owned Real Property
Schedule ‎‎‎1.1(d)
Permitted Liens – Royalty
Schedule 1.1(e)
Permitted Liens – Other
Schedule 1.1(f)
Software
Schedule ‎2.1(e)
Contracts
Schedule ‎2.1(f)
Tangible Personal Property
Schedule ‎2.1(g)
Permits
Schedule ‎2.2(s)
Retained Assets
Schedule ‎2.3(j)
Liabilities Under Seller NOVs
Schedule ‎3.4
Wyoming Production Tax Liabilities Amount
Schedule ‎3.5
Estimated Maintenance Contracts Amount
Schedule ‎4.2(j)
Lien Releases
Schedule ‎5.3
No Conflicts or Violation
Schedule ‎5.5(a)
Compliance with Legal Requirements
Schedule ‎5.6(b)
Other Persons’ Rights in Owned Real Property
Schedule ‎5.6(c)
Other Persons’ Rights in Leases
Schedule ‎5.7
Title to Tangible Personal Property
Schedule ‎5.8
Litigation
Schedule ‎5.10
Mining and Environmental Matters
Schedule ‎5.13
Seller’s Brokers
Schedule ‎5.14
Employee Benefits
Schedule ‎6.5
Purchaser’s Brokers
Schedule ‎8.1
Interim Operations
Schedule ‎8.5(c)
Seller Guarantees
Schedule ‎8.6(a)
Coal Leases
Schedule ‎8.10(b)
Employees

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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the “ Agreement ”) is made and entered into as of December [7], 2017, by and among Blackjewel L.L.C. , a Delaware limited liability company (the “ Purchaser ”), Contura Coal West, LLC , a Delaware limited liability company, Contura Wyoming Land, LLC , a Delaware limited liability company, and Contura Coal Sales, LLC , a Delaware limited liability company (collectively, “ Seller ”; references to the Seller herein shall, as the context requires, be deemed to be references to all entities comprising the Seller collectively or to a given entity comprising the Seller individually), solely for purposes of Section ‎8.5(a) and Section ‎8.8 , Contura Energy Services, LLC , a Delaware limited liability company, and, solely for purposes of Section ‎12.6 , Contura Energy, Inc. , a Delaware corporation.
RECITALS
A. Purchaser and Seller have determined that it is in their respective best interests for Seller to transfer to Purchaser, and for Purchaser to acquire from Seller, certain assets and liabilities of Seller generally consisting of Seller’s open-pit surface mines and related facilities commonly known as the Belle Ayr mine and the Eagle Butte mine (collectively the “ Mines ” and each a “ Mine ”), certain related assets, and certain of Seller’s prepaid assets associated therewith, together with certain related liabilities, on the terms and conditions contained in this Agreement.
B. The parties hereto desire to make certain representations, warranties, covenants and agreements in connection with the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto, intending to be legally bound, agree as follows:

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ARTICLE I
DEFINITIONS
1.1     Definitions . The following defined terms shall have the following meanings:
“ Accounts Receivable ” has the meaning set forth in Section ‎2.2(b) .
“ Affiliate ” of, or a Person “ affiliated with, ” a specified Person, is a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. For purposes of this definition, “control” means the power through equity ownership, contract or otherwise, to direct or cause the direction of the affairs of a Person.
“ Agreement ” means this Agreement including the Exhibits and all Schedules hereto.
“ Agreed Allocation Statement ” has the meaning set forth in Section ‎3.2(a) .
“ Allocation Statement ” has the meaning set forth in Section ‎3.2(a) .
“ Ancillary Agreements ” means the Bill of Sale, the Liabilities Assignment and Assumption Agreement, the Deed, the Lease Assignments, the Contract Assignments, the Permit Operating Agreement, the Royalty Agreement, the Back-To-Back Coal Supply Agreements, the Purchaser Corporate Guaranty and each other agreement, document, instrument or certificate contemplated by this Agreement or to be executed by any of the parties in connection with the consummation of the transactions contemplated by this Agreement, in each case only as applicable to the relevant party or parties to such Ancillary Agreement, as indicated by the context in which such term is used.
“ Apportioned Obligations ” has the meaning set forth in Section ‎‎7.1(b) .
“ Assumed Liabilities ” has the meaning set forth in Section ‎2.3 .
“ Back-To-Back Coal Supply Agreement ” has the meaning set forth in Section ‎8.5(d) .
“ Bill of Sale ” has the meaning set forth in Section ‎4.2(a) .
“ Bond Amount ” has the meaning set forth in Section ‎8.6(c) .
“ Business ” means the business of (a) the exploration, permitting, extraction, mining, processing, sale, storage and transportation of coal and non-coal minerals (including coalbed methane gas) from the Mines and the Real Property by Seller and the Reclamation of lands used for such activities by the Seller, and (b) Seller’s ownership of the Owned Real Property, maintenance of the Leases and performance of the obligations of the Seller thereunder, maintenance of the assets related thereto and Reclamation of the Mines, including Seller’s interest in the natural gas/coalbed methane gas wells and/or facilities on the Real Property; provided that, for purposes of Sections ‎2.3(g) and ‎ 12.1(b)(iii) , all

-2-

references to “Seller” in the foregoing clauses (a) and (b) shall be deemed to be references to “Purchaser”.
“ Business Day ” means a day, other than a Saturday or a Sunday, on which commercial banks are not required or authorized to close in the State of Wyoming.
“ Cap ” has the meaning set forth in Section ‎12.1(c) .
“ Closing ” has the meaning set forth in Section ‎4.1 .
“ Closing Date ” has the meaning set forth in Section ‎4.1 .
“ Closing Maintenance Contracts Amount ” has the meaning set forth in Section ‎3.5 .
“ Coal Lease ” has the meaning set forth in Section ‎8.5(a) .
“ COBRA ” has the meaning set forth in Section ‎‎8.10(c) .
“ Code ” means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
“ Collateral Replacement Deadline ” has the meaning set forth in Section ‎8.6(c) .
“ Collateral Replacement Payment ” has the meaning set forth in Section ‎8.6(c) .
“ Confidentiality Agreement ” means that certain Amended and Restated Confidentiality Agreement dated December [7], 2017, by and between Purchaser, Revelation Energy, LLC, Lexington Coal Company, LLC, Seller, Contura Energy Services, LLC and Contura Energy, Inc.
“ Consent ” means any consent, novation, approval, authorization, qualification, notice, waiver or registration required to be obtained from, filed with or delivered to any Person in connection with the consummation of the transactions contemplated hereby.
“ Contamination ” means the presence or existence in surface water, groundwater, soil or subsurface strata of any Hazardous Substance as a result of an emission, discharge or release of any Hazardous Substance to, on, onto or into the Environment or requiring investigation, remediation or other response action under Environmental Law.
“ Contract Assignments ” has the meaning set forth in Section ‎4.2(d) .
“ Contracts ” means (i) all of the agreements or other contracts to which Seller is a party related primarily to the Real Property or the Mines, but excluding the Leases and excluding any Partial Assignment Contracts, (ii) any Partial Assignment Contracts but, in the case of this clause (ii), only to the extent such contract relates to the Business and (iii) all of the agreements or other contracts pursuant to which Seller uses the Software but,

-3-

in the case of any Partial Assignment Software, only to the extent such contract relates to such Partial Assignment Software.
“ Controlled Group ” means any trade or business (whether or not incorporated) (a) under common control within the meaning of section 4001(b)(1) of ERISA with the Seller or (b) which together with the Seller is treated as a single employer under section 414(t) of the Code.
“ CSA ” has the meaning set forth in Section ‎8.5(d) .
“ CSA Assignment Losses ” has the meaning set forth in Section ‎8.5(d)(iii) .
“ CSA Consent ” has the meaning set forth in Section ‎8.5(d) .
“ CSA Overdue Receivable ” has the meaning set forth in Section ‎8.5(d) .
“ CSA Overdue Receivable Assignment ” has the meaning set forth in Section ‎8.5(d) .
“ Data ” has the meaning set forth in Section ‎2.1(l) .
“ Deeds ” means the special warranty deeds, dated as of the Closing Date, in the form of Exhibit F attached hereto, conveying the Owned Real Property from each applicable Seller to the Purchaser.
“ DEQ ” means the Wyoming Department of Environmental Quality.
“ Employee Plans ” means (i) all “employee benefit plans,” as defined in Section 3(3) of ERISA, (ii) all other severance pay, salary continuation, bonus, incentive, stock option, retirement, pension, profit sharing or deferred compensation plans, Contracts, programs, funds, or arrangements of any kind, and (iii) all other employee benefit plans, Contracts, programs, funds, or arrangements (whether written or oral, qualified or nonqualified, funded or unfunded, foreign or domestic) and any trust, escrow, or similar agreement related thereto, whether or not funded, sponsored, maintained or contributed to by Seller or any of its Affiliates for the benefit of one or more Employees.
“ Employees ” are limited to those individuals specifically identified by Seller on the list it provided to Purchaser, pursuant to Section ‎5.11 .
“ Environment ” or “ Environmental ” means navigable waters, waters of the contiguous zone, ocean waters, surface waters, groundwater, drinking water supply, land surface, soil, subsurface strata, indoor surfaces or outdoor or indoor air.
“ Environmental Claim ” means any Proceeding by any Person alleging Liability under or non-compliance with Environmental Law.

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“ Environmental Law ” means, collectively, any and all Legal Requirements of any nature (including common law)relating in any way to any Hazardous Substance, Contamination, protection of the Environment, protection of natural resources, or human health and safety, including, without limitation, those relating to environmental claims, reclamation or restoration, to emissions, discharges, releases or threatened emissions, discharges or releases to, on, onto or into the Environment of, or exposures or threatened exposures to, any Hazardous Substance.
“ Environmental Liability ” shall mean any Liabilities arising under any Environmental Law, including any response, remedial or investigation costs, and any other expenses (including reasonable attorney and consultant fees, laboratory costs and litigation costs) required under, arising from, or necessary to attain or maintain compliance with, Environmental Laws or relating to or arising from Contamination or Hazardous Substances.
“ Environmental Permits ” means all applicable Permits related to the Environment or otherwise required by Environmental Law.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.
“ Estimated Maintenance Contracts Amount ” has the meaning set forth in Section ‎3.5 .
“ Estimated Pre-Closing Wyoming Production Tax Liabilities Amount ” has the meaning set forth in Section ‎3.4 .
“ Excluded Permits ” means any MSHA identification registrations and approved mine plans and any U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives licenses or permits.
“ Explosives ” means Seller’s explosives and related materials used in the Business, excluding, for the avoidance of doubt, the Explosives Magazines.
“ Exhibits ” means, collectively, the various Exhibits referred to in this Agreement.
“ FCC ” means the Federal Communications Commission.
“ Fundamental Representations ” means the representations and warranties of Seller set forth in Sections ‎5.1 , ‎5.2 , ‎5.3 , ‎5.7 and ‎5.13 and the representations and warranties of Purchaser set forth in Sections ‎6.1 , ‎6.2 and ‎6.5 .
“ GAAP ” means accounting principles generally accepted in the United States of America as in effect on the Closing Date.
“ Governmental Agency ” means any government or political subdivision or regulatory authority, whether federal, state, local, provincial, municipal, special purpose,

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administrative or other governmental or quasi-governmental authority or regulatory body, or any agency, commission, bureau, taxing authority, department, authority, court, arbitration tribunal or instrumentality of any such government or political subdivision or regulatory authority, as well as any other instrumentality or entity designated to act for or on behalf of any of the foregoing.
“ Hazardous Substances ” shall mean any element, substance, compound, pollutant, contaminant mixture or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material, whether solid, liquid or gaseous, that: (a) is subject to regulation of any kind by any Governmental Agency with regard to protection of the Environment, natural resources or human health and safety; or (b) the presence or existence of which shall at any time give rise, under any theory of law or equity, to Environmental Liability.
“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“ Imaged Document ” has the meaning set forth in Section ‎13.13 .
“ Indemnified Party ” has the meaning set forth in Section ‎12.2 .
“ Indemnifying Party ” has the meaning set forth in Section ‎12.2 .
“ Inventory ” means the raw materials; work-in-process; coal in raw, clean, or partially processed states; and other inventories of Seller related primarily to the Real Property. For the avoidance of doubt, the only coal that will be considered part of the Inventory is coal that has been mined from the Mines.
“ IRS ” means the United States Internal Revenue Service or any successor agency, and, to the extent relevant, the United States Department of the Treasury.
“ Lease Assignments ” has the meaning set forth in Section ‎4.2(c) .
“Lease Bonds ” means all bonds related to the Leases, including the bonds listed on Schedule ‎1.1(a) .
“ Leased Real Property ” means the real property leased, subleased, licensed or otherwise occupied by the Seller that is described on Schedule ‎1.1(b) .
“ Leases ” means the agreements or other contracts pursuant to which the Seller leases, subleases, licenses or otherwise occupies the Leased Real Property, including the Coal Leases (for the avoidance of doubt, not including any agreements under which Seller has granted an interest in the Leased Real Property to any other Person).
“ Legal Requirement ” means any federal, state or local statute, law, code, rule, regulation, constitutions, ordinance, common law, treaty, injunction, judgment, decree,

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ruling, reporting or licensing requirement or other similar requirement enacted, adopted, promulgated or applied by any Governmental Agency.
“ Liability ” or “ Liabilities ” means any and all liabilities, obligations, debts, duties or adverse claims of Seller of every kind and description whatsoever, whether such liabilities or obligations are known or unknown, disclosed or undisclosed, matured or unmatured, accrued, absolute, liquidated or unliquidated, direct or indirect, contingent or otherwise in respect of any and all matters or events, including those arising under Legal Requirements, or imposed by any court or arbitrator of any kind, and those arising in connection with coal or other products sold, Contracts, Leases, commitments or undertakings, and whether existing or occurring on, prior to or after the Closing.
“ Liabilities Assignment and Assumption Agreement ” has the meaning set forth in Section ‎4.2(b) .
“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, title retention agreement, voting trust agreement, equitable interest, lien, security interest, bailment (in the nature of a pledge or for purposes of security), grant of a power to confess judgment, conditional sales and title retention agreement (including any lease or license in the nature thereof), adverse claim, easement, encroachment, right of way, charge, equitable interest, restriction or other similar encumbrance on real or personal property.
“ Loss ” or “ Losses ” has the meaning set forth in Section ‎12.1(a) .
“ Maintenance Contracts ” means any contracts designated on Schedule ‎2.1(e) as “Maintenance Contracts”.
“ Maintenance Contracts Amount ” means, as of any date, an amount of cash equal to the net amount of underpaid or overpaid expenses accrued by Seller as of such date in respect of the Maintenance Contracts, including any would-be reconciliation amounts payable or receivable upon expiration or early termination of such contracts. For purposes of this definition, “underpaid” refers to contracts in which services provided to date exceed payments made to date (i.e., contracts in a liability position) and “overpaid” refers to contracts in which payments made to date exceeds services provided to date (i.e., contracts in a prepaid asset position).
“ Material Adverse Effect ” means any event, occurrence, circumstance, effect, fact or change that has or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Purchased Assets or the condition (financial or otherwise), assets, liabilities, business or results of operations of the Business (as currently conducted) or the Purchased Assets, taken as a whole, or on the ability of the Seller to perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement; provided , however , that any such event, occurrence, fact or change resulting or arising from or relating to, directly or indirectly, any of the following matters shall not be considered when determining whether a Material Adverse Effect has occurred or would be reasonably likely to occur: (a) any conditions in the Mining industry,

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including changes in the price of coal (including changes in the price of Powder River Basin Coal); (b) any conditions in the general economy, political conditions or developments or changes therein; (c) any changes in financial or securities markets in general or changes in interest rates in general; (d) any act of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (e) any action required or permitted by this Agreement; (f) any actions taken by, or at the request of, or with the consent of, Purchaser; (g) the identity of Purchaser as the purchaser of the Purchased Assets pursuant to this Agreement, the execution of this Agreement or the transfer of the Purchased Assets to Purchaser; (h) any changes in Legal Requirements; (i) any changes in GAAP or other applicable accounting standards or principles or in authoritative interpretations thereof; (j) the public announcement, pendency or completion of the transactions contemplated by this Agreement or (k) any failure of the Business to meet any internal or industry financial estimates, forecasts or projections for any period (it being understood that the facts or occurrences giving rise to or contributing to such failure may be taken into account in determining whether a Material Adverse Effect has occurred or would be reasonably likely to occur unless otherwise excluded in this definition of “Material Adverse Effect”).
“ Mine ” and “ Mines ” each has the meaning set forth in the preamble hereto.
“ Mining ” has the meaning set forth in the definition of Mining Law.
“ Mining Law ” means all present Legal Requirements relating to the exploration, permitting, extraction, processing, storage and transportation of coal and non-coal minerals and to the reclamation or restoration of lands used for such activities (collectively referred to as “ Mining ”), including with respect to the prevention or mitigation of, or otherwise relating to the effects of, Mining activities, including with respect to the prevention or mitigation of, or otherwise relating to the effects of, Mining activities.
“ Mining Permits ” means all applicable Permits related to Mining or otherwise required by Mining Law.
“ MSHA ” means the United States Department of Labor, Mine Safety and Health Administration and the Legal Requirements administered thereby.
“ Net Present Value ” means, with respect to any CSA, an amount equal to the net present value of such CSA as of the Closing Date, discounted at a rate of 12 percent.
“ NRC ” means the United States Nuclear Regulatory Commission.
“ NRC Permits ” as the meaning set forth in Section ‎‎8.5(e) .
“ Non-Assignable Assets ” has the meaning set forth in Section ‎8.5(a) .
“ Order ” means any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any court, administrative agency or other Governmental Agency or by any arbitrator.

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“ Ordinary Course of Business ” means the ordinary course of business consistent in all material respects with the Seller’s past custom and practice.
“ Owned Real Property ” means all of the real property, and all right, title and interest therein, owned by Seller and described on Schedule ‎1.1(c) , together with all of seller’s right, title and interest in and to the following, as it relates to the Owned Real Property (and as used in the operation of the Business as conducted): (i) all buildings, structures and improvements located on such real property owned by Seller; (ii) all improvements, fixtures, mine infrastructure, preparation plant structures and improvements, loadout structures and improvements, rail sidings, machinery, apparatus or equipment affixed to such real property owned by Seller; (ii) all rights of way, easements, if any, in or upon such real property owned by Seller and all right-of-way and other rights and appurtenances belonging or in any way pertaining to such real property interests owned by Seller (including the right, title and interest of Seller in and to any coal reserves, mineral rights, underground and surface coal and mining rights, royalty rights, support rights and waivers, subsidence rights or water rights relating or appurtenant to such real property owned by Seller); (iv) all strips and gores and any land lying in the bed of any public road, highway or other access way, upon or proposed, adjoining such real property owned by Seller; and (v) any leases out to third parties affecting the real property owned by Seller; in each case of the foregoing (i)-(v), whether or not such rights or instruments creating or evidencing such rights are specifically identified on Schedule ‎1.1(c) .
“ Partial Assignment Contracts ” means any contracts designated on Schedule ‎2.1 as “Partial Assignment Contracts”.
“ Partial Assignment Software ” means any software designated on Schedule ‎1.1(f) as “Partial Assignment Software”.
“ Permit ” means all of the permits, licenses, consents, authorizations, permit applications or other approvals, in each case, related solely to the Real Property or the Mines.
“ Permit Operating Agreement ” has the meaning set forth in Section ‎4.2(g) .
“ Permit Transfer Applications ” has the meaning set forth in Section ‎8.6(a) .
“ Permitted Liens ” means: (a) Liens for Taxes not yet due or being contested in good faith and for which adequate reserves have been established; (b) mechanic’s, materialman’s, repairer’s and other similar Liens arising or incurred in the Ordinary Course of Business that are not yet due and payable and that, individually or in the aggregate, do not materially and adversely affect the operation of the Business or the Mines (as currently conducted) and do not materially detract from the value of the Purchased Assets; (c) easements, rights of way, covenants and restrictions, Liens, building lines of record, present zoning classification, and other similar matters whether or not of record that, individually or in the aggregate, do not materially and adversely affect the operation of the Business or the Mines (as currently conducted) and do not materially detract from the value of the

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Purchased Assets; (d) other than with respect to Owned Real Property, Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the Ordinary Course of Business that, individually or in the aggregate, do not materially and adversely affect the operation of the Business or the Mines (as currently conducted); (e) any overriding royalty, production royalty or similar royalty to a non-Affiliate of Seller listed and described on Schedule ‎1.1(d) ; (f) the liens existing on the Closing Date securing the payment of unpaid Taxes in respect of real property and/or personal property interests filed against certain Owned Real Property for so long as such liens are being satisfied in accordance with that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as modified, for Alpha Natural Resources, Inc., as confirmed on July 12, 2016 (for the avoidance of doubt, it being understood that such unpaid Taxes shall be Retained Liabilities); (g) servitudes, permits, rights of way, leases, oil and gas wells, if any, and other rights and interests granted for the purpose of roads, railways, oil and gas wells, pipelines, transmission and transportation lines and other like uses that individually or in the aggregate, do not materially and adversely affect the operation of the Business or the Mines (as currently conducted) and do not materially detract from the value of the Purchased Assets; (h) any right reserved to any Governmental Agency by Legal Requirement to regulate any real property, including pursuant to any Permit; and (i) those Liens listed and described on Schedule ‎1.1(e) .
“ Person ” means any individual, sole proprietorship, partnership, limited partnership, corporation, limited liability company, unincorporated society, association, trust, joint venture, cooperative association, Governmental Agency or other legal entity.
“ Post-Closing Tax Period ” has the meaning set forth in Section ‎7.1(b) .
“ Pre-Closing Tax Period ” means any Tax period (or portion thereof) ending on or before the Closing.
“ Pre-Closing Wyoming Production Tax Liabilities ” means Wyoming Production Tax Liabilities in respect of any period ending on or prior to the Closing.
“ Pre-Closing Wyoming Production Tax Liabilities Amount ” means an amount of cash equal to the amount of the Pre-Closing Wyoming Production Tax Liabilities.
“ Prepaid Assets ” has the meaning set forth in Section ‎2.1(d) .
“ Proceeding ” means any claim, demand, charge, complaint, action, suit, proceeding, hearing, audit, investigation, interference, opposition, reexamination, concurrent use, cancellation or other dispute resolution or proceeding, whether judicial, administrative or arbitrative, commenced, brought, conducted or heard by or before any Governmental Agency or arbitrator.
“ Purchased Assets ” has the meaning set forth in Section ‎2.1 .
“ Purchaser ” has the meaning set forth in the preamble hereto.

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“ Purchaser Bonds ” has the meaning set forth in Section ‎8.6(c) .
“ Purchaser Collateral ” has the meaning set forth in Section ‎8.6(c) .
“ Purchaser Corporate Guaranty ” has the meaning set forth in Section ‎12.5 . ‎
“ Purchaser Indemnified Party ” has the meaning set forth in Section ‎12.1(a) .
“ Purchaser Material Adverse Effect ” means a material adverse effect on the ability of the Purchaser to consummate the transactions contemplated by this Agreement or the Ancillary Agreements.
“ Purchaser Ownership and Control File ” has the meaning set forth in Section ‎6.8 .
“ Purchaser Refinancing ” has the meaning set forth in Section ‎8.6(c) .
“ Ranches ” means the Black Thunder ranch and the Belle Ayr West ranch, each as more particularly described on Schedule ‎1.1(c) .
“ Real Property ” means the Owned Real Property and the Leased Real Property.
“ Reclamation ” means all activities required under any Mining Law or Environmental Law, or under any Mining Permit or Environmental Permit, to prevent, mitigate or otherwise address the effects of Mining activities, including reclamation associated with coal mining and/or extraction of natural gas/coalbed methane gas.
“ Reclamation Performance Bonds ” means all reclamation performance bonds and collateral bonds related to the Permits, including the Reclamation Performance Bonds listed on Schedule ‎1.1 (a) .
“ Related Persons ” shall mean, with respect to any person, any Affiliates of such Person and any member, manager, officer, director, employee, agent, shareholder, representative, successor, or assign of such Person or its Affiliates.
“ Release ” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing or dumping into the Environment.
“ Retained Assets ” has the meaning set forth in Section ‎2.2 .
“ Retained Businesses ” has the meaning set forth in Section ‎8.8 .
“ Retained Liabilities ” has the meaning set forth in Section ‎2.4 .
“ Royalty Agreement ” has the meaning set forth in Section ‎3.1 .

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“ Schedules ” means, collectively, the various Schedules referred to in this Agreement.
“ Seller ” has the meaning set forth in the preamble hereto.
“ Seller Bonds ” has the meaning set forth in Section ‎8.6(c) .
“ Seller Collateral ” has the meaning set forth in Section ‎8.6(c) .
“ Seller Corporate Guaranty ” has the meaning set forth in Section ‎12.6 .
“ Seller Guarantees ” has the meaning set forth in Section ‎8.5(c) .
“ Seller Indemnified Party ” has the meaning set forth in Section ‎12.1(b) .
“ Seller NOVs ” means written notices of non-compliance issued on the Permits prior to Closing.
“ Seller Permits ” has the meaning set forth in Section ‎5.5(b) .
“ Seller Release ” has the meaning set forth in Section ‎8.5(a) .
“ Seller’s Knowledge ” or any other similar knowledge qualification, means the actual knowledge of Shane Durgin, Kenneth Ferguson, Daniel Baker, Joff Pilon, Mark Thrall, Andy Eidson and Scott Kreutzer.
“ Selling Expenses ” means all unpaid costs, fees and expenses of outside professionals incurred by the Seller relating to the process of selling the Purchased Assets and/or the Business to Purchaser, including all legal fees, accounting, tax-consulting, and investment banking fees and expenses.
“ SMCRA ” means the Surface Mining Control and Reclamation Act of 1977, as amended.
“ Software ” means (i) the software set forth on Schedule ‎1.1(f) , but excluding the Partial Assignment Software, (ii) any other software that is hosted by the Seller in Wyoming and used exclusively in the conduct of the Business, but excluding the Partial Assignment Software, and (iii) any Partial Assignment Software, but only to the extent such Partial Assignment Software relates to the Business.
“ Tangible Personal Property ” means all tangible personal property that is used by the Seller in the Business and is located in Wyoming, including equipment, plants, materials, trucks, automobiles and other vehicles, parts, supplies, liquid fuels and chemicals, but excluding any Inventory.
“ Tax ” means (i) any tax, charge, levy, governmental fee or other like assessment or charge of any kind whatsoever, including income, gross receipts, ad valorem, premium,

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value-added, net worth, capital stock, capital gains, documentary, recapture, alternative or add-on minimum, disability, registration, recording, excise, real property, personal property, extraction, unmined mineral, sales, use, license, lease, service, service use, transfer, withholding, employment, unemployment, insurance, social security, business license, business organization, environmental, workers compensation, payroll, employer health, profits, severance, stamp, occupation, windfall profits, customs, duties, gift, estate, franchise, production, inventory, unclaimed property, escheat and other taxes of any kind whatsoever (including withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Agency (a “ Taxing Authority ”) responsible for the imposition of any such tax (domestic or foreign), or (ii) liability for the payment of any amounts of the type described in (i) as a result of being party to any agreement or any express or implied obligation to indemnify any other Person.
“ Termination Date ” has the meaning set forth in Section ‎10.1(a) .
“ Third Party Claim ” has the meaning set forth in Section ‎12.2 .
“ Threshold ” has the meaning set forth in Section ‎12.1(c) .
“ Trade Payables ” means current trade liabilities incurred in the Ordinary Course of Business and maturing within 365 days after the incurrence thereof. For purposes of this Agreement, a Trade Payable is deemed “incurred” when the corresponding performance or delivery occurs, regardless of when any purchase order or commitment was entered into.
“ Transfer Period ” has the meaning set forth in Section ‎8.6(a) .
“ Transfer Taxes ” has the meaning set forth in Section ‎7.1(c) .
“ Transition Period ” has the meaning set forth in Section ‎8.8 .
“ Transition Services ” has the meaning set forth in Section ‎8.8 .
“ WARN ACT ” means the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar state or federal law.
“ Wyoming Audit ” has the meaning set forth in Section ‎2.2(f) .
“ Wyoming Production Tax Liabilities ” means liabilities of the Sellers for gross production taxes relating to the operation of the Business.
ARTICLE II
PURCHASED ASSETS; ASSUMED LIABILITIES
2.1      Assets to be Transferred . At the Closing, the Purchaser shall purchase from the Seller, and the Seller shall sell, transfer, assign, convey and deliver to the Purchaser, free

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and clear of all Liens other than Permitted Liens, all of the Seller’s right, title and interest, directly or indirectly, in and to the following assets, rights, properties and interests (collectively, the “ Purchased Assets ”) as they exist at the Closing (in each case, excluding any Retained Assets):
(a)
the Owned Real Property;
(b)
an amount of cash equal to (i) the Estimated Pre-Closing Wyoming Production Tax Liabilities Amount and (ii) subject to Section ‎3.5 , the Estimated Maintenance Contracts Amount;
(c)
the Leases, excluding any claims and causes of action under the Leases to the extent arising out of any event occurring prior to the Closing, other than claims and causes of action related to any Prepaid Assets;
(d)
amounts prepaid under the Leases, including, without limitation, any recoupable advance minimum royalties (“ Prepaid Assets ”);
(e)
the Contracts, including the Contracts listed on Schedule ‎2.1(e) , excluding any claims and causes of action under the Contracts to the extent arising out of any event occurring prior to the Closing (including the rights of Seller under any Contracts with respect to Accounts Receivable);
(f)
the Tangible Personal Property, including the Tangible Personal Property listed on Schedule ‎2.1(f) ;
(g)
the Permits, including the Permits listed on Schedule ‎2.1(g) , but excluding any Excluded Permits;
(h)
the Inventory;
(i)
the Software;
(j)
Seller’s membership interests in Wyoming Quality Healthcare Coalition, LLC;
(k)
Seller’s patronage capital credits , accrued and future power bill credits, interests in the Risk Management Fund and interests to funds in the coal bed methane Cost of Retirement Fund, in each case on the records of Powder River Energy Corporation; and
(l)
all engineering and operational data, charts, surveys, maps, plans, drawings, computer files, permit applications, books, records, data, title and other reports, tax tickets, tax appraisals, documents, papers, instruments and all other materials of all kinds to the extent related to the Real Property or the Mines and locatable after diligent search in good faith other than such materials to the extent relating to any Retained Assets (collectively, the “ Data ”) (provided, Seller may retain copies of such Data).

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Subject to Sections ‎8.5(a) and ‎ 8.6 , if after the Closing, it is discovered that any assets, properties or rights, including rights under Contracts and fractional real property interests, owned, leased or subleased by the Seller and constituting Purchased Assets were inadvertently not transferred to Purchaser at the Closing, then the Seller and its Affiliates shall use their commercially reasonable efforts to assign, convey, lease or sublease, as applicable, such assets, properties or rights to Purchaser, in each case upon the reasonable request of Purchaser, at no additional cost or expense to Purchaser (other than any cost or expense that Purchaser would have borne had such assets, properties or rights been transferred to Purchaser at the Closing).
2.2      Retained Assets . Notwithstanding anything in this Agreement to the contrary, the Seller shall retain all right, title and interest in, to and under the Retained Assets. Specifically, the Purchased Assets will not include, and the Purchaser will in no way be construed to have purchased or acquired (or to have the right to purchase or to acquire) any interest whatsoever in any of the Retained Assets. “ Retained Assets ” shall mean each of the following assets:
(a)
cash and cash equivalents owned by the Seller, other than the Wyoming Production Tax Liabilities Amount and the Maintenance Contracts Amount;
(b)
all accounts, payments or notes receivable held by Seller and/or any of its Affiliates as of the Closing (whether or not then due), and any security, claim, remedy or other right related to any of the foregoing (“ Accounts Receivable ”);
(c)
the rights that accrue or may accrue to the Seller under this Agreement and/or the Ancillary Agreements;
(d)
all contracts and agreements other than the Contracts and the Leases;
(e)
all claims and causes of action under the Contracts and the Leases to the extent arising from any event occurring prior to the Closing, including claims and causes of action for refund of amounts paid by Seller prior to the Closing, but excluding claims and causes of action under the Leases related to any Prepaid Assets;
(f)
all rights and claims arising out of the audit being conducted by the State of Wyoming, Department of Audit, Mineral Audit Division, on its own behalf and for the Office of Natural Resources Revenue of the U.S. Department of the Interior for the period from 2013 through 2015, inclusive (the “ Wyoming Audit ”);
(g)
the Excluded Permits;
(h)
all prepaid utility deposits and payments;

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(i)
all minute books, organizational documents, and such other books and records of Seller as pertains to ownership, organization or existence of the Business;
(j)
Tax assets of Seller in respect of the Purchased Assets with respect to a Pre-Closing Tax Period;
(k)
all insurance policies of Seller and its Affiliates and rights thereunder;
(l)
all personnel records and other records that Seller is required by law to retain in its possession;
(m)
all rights in connection with and assets of the Employee Plans;
(n)
any patents, trademarks, trade names, service marks, copyrights, domain names, know-how and all other intellectual property and proprietary rights owned by Seller or its Affiliates;
(o)
any claims or defenses in any Proceedings in which Seller is a plaintiff;
(p)
any bonds or other collateral of Seller or its Affiliates posted with respect to any Permits or Leases;
(q)
all software other than the Software; and
(r)
the property and assets set forth on Schedule ‎2.2(r) .
2.3      Assumed Liabilities . On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Purchaser shall assume the following Liabilities of the Seller (other than any Retained Liabilities), and no other Liabilities (collectively, the “ Assumed Liabilities ”):
(a)
(i) all Liabilities arising from the performance or failure to perform after the Closing Date of the Contracts, the Leases and the Maintenance Contracts, including any advance minimum or similar royalty obligations, and (ii) any Liabilities for unpaid pre-Closing expenses under the Maintenance Contracts;
(b)
all Reclamation obligations related to the Purchased Assets or the Business;
(c)
all Environmental Liabilities relating to the Purchased Assets or the Business, excluding any monetary fines and penalties for which Seller or any of its Affiliates have received a written notice of violation or notice of claim (or other written notice of similar legal intent or meaning) from any Governmental Agency on or prior to the Closing and excluding the Liabilities set forth in Section ‎2.4(a) ;

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(d)
all Liabilities related to Trade Payables of the Business incurred after the Closing Date (for the avoidance of doubt, regardless of when the corresponding purchase order or commitment was entered into);
(e)
the Pre-Closing Wyoming Production Tax Liabilities, but only to the extent of the actual Pre-Closing Wyoming Production Tax Liabilities Amount determined in accordance with Section ‎3.4 ;
(f)
(i) all Taxes arising out of, relating to or in respect of the Purchased Assets with respect to any Post-Closing Tax Period and (ii) Taxes that are allocated to the Purchaser pursuant to ‎Article VII ;
(g)
all Liabilities of any kind whatsoever arising from (i) ownership of the Purchased Assets or the operation of the Business by Purchaser (other than the Retained Business) or (ii) except as otherwise provided herein, the employment of the Employees hired by the Purchaser pursuant to Section ‎8.10 , in each case to the extent arising after the Closing Date;
(h)
50% of any CSA Assignment Losses;
(i)
all Liabilities related to Seller’s membership interests in Wyoming Quality Healthcare Coalition, LLC; and
(j)
all Liabilities under the Seller NOVs, (but if received prior to the date hereof, only if listed on Schedule ‎2.3(j) ), other than Liabilities for fines and assessments.
Purchaser shall pay, perform and otherwise discharge in accordance with their terms and when due all of the Assumed Liabilities. Without limiting the foregoing, Purchaser will be responsible for, and will pay to the Wyoming Department of Revenue when due, all Wyoming Production Tax Liabilities.
2.4      Retained Liabilities . The Seller shall retain all Liabilities of Seller or any of its Affiliates other than the Assumed Liabilities, including, without limitation, the following, all of which Liabilities shall be paid, performed and otherwise discharged by the Seller in accordance with their terms and when due (the Liabilities so retained by the Seller and not assumed by the Purchaser are hereinafter referred to as the “ Retained Liabilities ”):
(a)
any Liability of the Seller for any fines or assessments and for third party costs to correct all non-compliance and to perform all abatement measures required by the applicable Governmental Agency, in each case to the extent arising out of any written notice of violation issued on or prior to the Closing with respect to any Permit;
(b)
any Liabilities related to (i) the performance or failure to perform of the Contracts or Leases on or prior to the Closing Date, including amounts due

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and payable under any Contract or Lease as of or prior to the Closing, other than Liabilities for unpaid pre-Closing expenses under the Maintenance Contracts, or (ii) any breach, default or failure to perform on the part of Seller or any of its Affiliates under any Contract or Lease to the extent occurring or accruing at any time on or prior to the Closing (it being understood that this Section ‎‎2.4(b) does not apply to Trade Payables, which are governed by Section ‎2.4(e) );
(c)
any monetary fines and penalties arising from Environmental Claims by any Governmental Agency alleging noncompliance with Environmental Law for which the Seller or any of their Affiliates had written notice on or prior to the Closing;
(d)
all Liabilities of Seller to the extent related to the Retained Assets and the Retained Business;
(e)
all Liabilities for Trade Payables of the Business to the extent incurred on or prior to the Closing Date;
(f)
any Liability or obligation of the Seller, or any member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member, for Taxes (except to the extent explicitly assumed in Section ‎2.3(e) or ‎2.3(f) ;
(g)
all Liabilities of Seller relating to the compensation and benefits (including stock options and other equity-based compensation), salary, commissions and bonuses payable or granted to, incurred, or earned or accrued, or which should have been accrued, in respect of service performed by, employees of the Business on or prior to the Closing;
(h)
any Liability related to the employment or termination of any Employee by the Seller (including any workers’ compensation claims, occupational injury, discrimination claims, payroll, employment, compensation plan, program, agreement or arrangement of the Seller and any termination by the Seller in connection with the consummation of the transactions contemplated by this Agreement) to the extent arising out of or in connection with any event or condition which occurred or existed on or prior to the Closing except as set forth in Section ‎8.10(c) or as otherwise provided by Legal Requirements;
(i)
all Liabilities in connection with the Employee Plans;
(j)
any Liability of the Seller for Selling Expenses;
(k)
50% of any CSA Assignment Losses; and
(l)
any Liability related to the Wyoming Audit.

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ARTICLE III
PURCHASE AND SALE
3.1      Purchase and Sale of Purchased Assets . In full consideration for the purchase of the Purchased Assets, at the Closing, the Purchaser shall (i) assume the Assumed Liabilities and (ii) enter into and perform its obligations under the Royalty Agreement in the form of Exhibit G hereto (the “ Royalty Agreement ”).
3.2      Allocation .
(a)
The Purchaser shall prepare, and provide to the Seller for its review and comment, a statement allocating the amount treated for U.S. federal income tax purposes as paid for the Purchased Assets among the Purchased Assets in accordance with Section 1060 of the Code within 30 days of the Closing Date (the “ Allocation Statement ”). If the Seller objects to such Allocation Statement within 30 days of receipt of such Allocation Statement, the Purchaser and the Seller shall in good faith resolve their differences within 20 days of the Purchaser having received the Seller’s good faith objection (any Allocation Statement agreed to by the parties, an “ Agreed Allocation Statement ”). If Seller and Purchaser cannot mutually agree upon such allocation, Seller and Purchaser shall be free to file their own asset allocation statement.
(b)
Seller and Purchaser agree to (i) be bound by an Agreed Allocation Statement and (ii) act in accordance with any such Agreed Allocation Statement in the preparation, filing and audit of any Tax return (including filing Form 8594 with its federal income Tax return for the taxable year that includes the date of the Closing).
3.3      Apportionment of Utility Charges . Utility charges affecting any of the Purchased Assets shall be apportioned as of 11:59 p.m. (Mountain Time) on the Closing Date, with all such items apportioned to the period prior to such time being for the account of Seller and all such items apportioned to the period after such time being for the account of Buyer. The party hereto that receives the invoice or other bill for such amounts shall timely pay such invoice or other bill and provide notice of such payment to the other party hereto. Such other party shall promptly reimburse the paying party for such other party’s prorated portion of such amounts. As soon as practicable after Closing, Purchaser shall transfer all utilities used in the Business into Purchaser’s name, and Purchaser shall use commercially reasonable efforts to cause the return to Seller of any amounts deposited by Seller or any of its Affiliates in respect of such utilities.
3.4      Wyoming Production Tax Liabilities . Schedule ‎3.4 sets forth Seller’s good faith estimate of the Wyoming Production Tax Liabilities Amount (the “ Estimated Pre-Closing Wyoming Production Tax Liabilities Amount ”), together with documentation setting forth in reasonable detail the basis for Seller’s calculation. Within 45 days after the Closing, Seller shall provide to Purchaser its calculation as to the actual Pre-Closing Wyoming

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Production Tax Liabilities Amount, which Purchaser shall have the right to review and approve within 10 days of receipt, such approval not to be unreasonably withheld. If the actual Pre-Closing Wyoming Production Tax Liabilities Amount exceeds the Estimated Pre-Closing Wyoming Production Tax Liabilities Amount, Seller shall promptly pay the amount of such excess to Purchaser, by wire transfer of immediately available funds to an account designated by Purchaser. If the actual Pre-Closing Wyoming Production Tax Liabilities Amount is less than the Estimated Pre-Closing Wyoming Production Tax Liabilities Amount, Purchaser shall promptly pay the amount of such deficit to Seller, by wire transfer of immediately available funds to an account designated by Seller.
3.5      Maintenance Contracts .
(a)
Schedule ‎3.5 sets forth the Maintenance Contracts Amount as of November 30, 2017 (the “ Estimated Maintenance Contracts Amount ”). Within 45 days after the Closing, Seller shall provide to Purchaser its calculation of the Maintenance Contracts Amount as of the Closing (the “ Closing Maintenance Contracts Amount ”), which Purchaser shall have the right to review and approve within 10 days of receipt, such approval not to be unreasonably withheld.
(b)
At the Closing, Seller shall pay the Estimated Closing Maintenance Contracts Amount to Purchaser, by wire transfer of immediately available funds to an account designated by Purchaser.
(c)
Promptly following the determination of the Closing Maintenance Contracts Amount pursuant to Section ‎3.5(a) , (i) if the Closing Maintenance Contracts Amount exceeds the Estimated Maintenance Contracts Amount, Seller shall promptly pay the amount of such excess to Purchaser, by wire transfer of immediately available funds to an account designated by Purchaser, and (y) if the Closing Maintenance Contracts Amount is less than the Estimated Maintenance Contracts Amount, Purchaser shall promptly pay the amount of such deficit to Seller, by wire transfer of immediately available funds to an account designated by Seller.
(d)
Nothing in this Section 3.5 shall alter the allocation of Assumed Liabilities and Retained Liabilities in respect of the Maintenance Contracts.
(e)
After the payment to Purchaser at Closing of the Estimated Maintenance Contracts Amount, and to the extent that the provisions of Section 8.5 apply to the transfer of a Maintenance Contract, then until such time as such Maintenance Contract can be transferred to Purchaser, Purchaser shall assume all obligations, including payment obligations, of Seller under such Maintenance Contract, which performance shall be guaranteed pursuant to the Purchaser Corporate Guaranty.

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3.6      Partial Assignment Contracts and Partial Assignment Software . For the avoidance of doubt, with respect to any Partial Assignment Contracts or Partial Assignment Software, such contract or software (including claims and causes of action thereunder and Liabilities related thereto), shall constitute Purchased Assets, Retained Assets, Assumed Liabilities and Retained Liabilities, as applicable, in accordance with the provisions of Sections ‎2.1 , ‎2.2 , ‎2.3 and ‎2.4 , but in each case only to the extent such contracts or software, as applicable, relate to the Business. The transfer of the Partial Assignment Contracts and Partial Assignment Software shall be subject to Section ‎8.5 .
ARTICLE IV
CLOSING AND DELIVERIES
4.1      Closing . Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “ Closing ”) will take place remotely via the electronic exchange of documents and signatures within two Business Days after the satisfaction or waiver of each of the conditions set forth in ‎ Article IX (other than those conditions that are to be satisfied at the Closing but subject to their satisfaction), or on such other date or in such other manner as the parties mutually agree in writing, but in any event no earlier than December 8, 2017 (such date, the “ Closing Date ”). Title, equitable title and risk of loss with respect to the Purchased Assets (and expressly excluding any Non-Assignable Assets) will be deemed transferred to or vested in the Purchaser, and the transactions contemplated by this Agreement will be deemed effective for Tax, accounting and other computational purposes, and the parties will treat the Closing as if it had occurred, as of 11:59 p.m. (Mountain Time) on the Closing Date. Purchaser agrees not to cause the Business to take any action outside the ordinary course of business on the Closing Date that would affect the apportionment of assets and liabilities hereunder.
4.2      Deliveries by the Seller . At the Closing or thereafter as specified below, the Seller, at the Seller’s sole cost, shall deliver or cause to be delivered to the Purchaser the following items:
(a)
one or more bills of sale, in substantially the form of Exhibit A attached hereto (the “ Bill of Sale ”), in each case duly executed by each applicable Seller;
(b)
an Assumed Liabilities assignment and assumption agreement, in substantially the form of Exhibit B attached hereto (the “ Liabilities Assignment and Assumption Agreement ”), duly executed by each applicable Seller;
(c)
an assignment and assumption of Leases, in substantially the form of Exhibit C attached hereto (the “ Lease Assignments ”), for each Lease, duly executed and notarized by each applicable Seller, and which in the case of federal and state leases, shall also include certain transfer and assignment instruments to be executed by Seller and Purchaser as required under applicable Legal Requirements;

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(d)
one or more assignment and assumption agreements of Contracts, in substantially the form of Exhibit D attached hereto (the “ Contract Assignments ”) duly executed by each applicable Seller;
(e)
the Back-To-Back Coal Supply Agreements duly executed by each applicable Seller;
(f)
Permit Transfer Applications, duly executed by each applicable Seller, as and to the extent applicable;
(g)
a permit operating agreement, in substantially the form of Exhibit E (the “ Permit Operating Agreement ”) duly executed by each applicable Seller entity;
(h)
the Deeds, in substantially the form of Exhibit F , duly executed and notarized by each applicable Seller, along with any documents (including transfer tax forms) required by the applicable city, county, or state to effectuate the recording of the Deed (other than any Deeds or any such documents relating to the Ranches, which shall be delivered pursuant to Section ‎8.5(e) ;
(i)
the Royalty Agreement, in substantially the form of Exhibit G , duly executed and notarized by each applicable Seller, along with any documents (including transfer tax forms) required by the applicable city, county, or state to effectuate the recording of the Royalty Agreement;
(j)
at Closing or as soon thereafter as practicable, appropriate termination statements under the Uniform Commercial Code and release of Liens set forth on Schedule ‎4.2(j) ;
(k)
all certificates of title necessary to transfer to the Purchaser any vehicles or other Purchased Assets the ownership of which is evidenced by a certificate of title, duly executed by each applicable Seller;
(l)
a certificate of the Secretary of State of Delaware as to the good standing of each Seller entity in such jurisdiction dated within 15 days of the Closing Date;
(m)
a certificate of the Secretary of each Seller entity certifying as to resolutions duly adopted by its Board of Managers and/or by its member(s), as applicable, authorizing the execution and delivery of this Agreement and the Ancillary Agreements by such Seller and its performance of the transactions contemplated hereby and thereby;
(n)
a certification, signed under penalties of perjury and dated not more than 30 days prior to the Closing Date, that satisfies the requirements of Treasury

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Regulation Section 1.1445-2(b)(2) and confirms that Seller is not a “foreign person” as defined in Section 1445 of the Code;
(o)
a certificate executed by Seller, dated as of the Closing Date, in accordance with Section ‎9.2(b) ; and
(p)
the Estimated Pre-Closing Wyoming Production Tax Liabilities Amount and the Estimated Maintenance Contracts Amount.
4.3      Deliveries by the Purchaser . At the Closing, the Purchaser, at the Purchaser’s sole cost, shall deliver or cause to be delivered to the Seller the following items:
(a)
the Bill(s) of Sale duly executed by the Purchaser (or, in the case of the Explosives, a document executed by a Person duly licensed to possess the Explosives sufficient to evidence the transfer of possession of the Explosives by Seller to such Person);
(b)
the Liabilities Assignment and Assumption Agreement, duly executed by the Purchaser;
(c)
the Lease Assignments, duly executed and notarized by the Purchaser;
(d)
the Contract Assignments, duly executed by the Purchaser;
(e)
the Back-To-Back Coal Supply Agreements duly executed by Purchaser;
(f)
Permit Transfer Applications, duly executed by Purchaser, as and to the extent applicable;
(g)
the Permit Operating Agreement, duly executed by the Purchaser;
(h)
the Royalty Agreement, duly executed and notarized by the Purchaser;
(i)
the Purchaser Corporate Guaranty, duly executed by Blackjewel Holdings L.L.C.;
(j)
evidence satisfactory to the Seller that the Purchaser has obtained all bonds or other collateral required by any Governmental Agency to replace the Seller’s Reclamation Performance Bonds and Lease Bonds;
(k)
a certificate of the Secretary of State of the State of Wyoming as to the good standing of the Purchaser in such jurisdiction dated within 15 days of the Closing Date;
(l)
a certificate of the Secretary of the Purchaser certifying as to resolutions duly adopted by the member of the Purchaser authorizing the execution and delivery of this Agreement and the Ancillary Agreements by the Purchaser

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and its performance of the transactions contemplated hereby and thereby; and
(m)
a certificate executed by Purchaser, dated as of the Closing Date, in accordance with Section ‎9.3(b) .
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Except as set forth on the Schedules hereto, each entity comprising the Seller, severally and not jointly, represents and warrants to Purchaser as follows, solely with respect to itself and not with respect to any other entity comprising the Seller:
5.1      Organization of the Seller . The Seller is a limited liability company duly formed, validly existing, and in good standing under the Legal Requirements of the State of Delaware. Further, the Seller is authorized, qualified or licensed to do business as a foreign corporation in the State of Wyoming and is not required to be so authorized, qualified or licensed in any other jurisdiction, except where the failure to be so qualified or licensed would not be material to the Business. The Seller has full limited liability company power and authority to (a) own, operate and lease its properties and assets as and where currently owned, operated and leased, and (b) carry on its business as currently conducted.
5.2      Authority of the Seller . The execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company action on the part of the Seller, and this Agreement constitutes, and the Ancillary Agreements when executed, will constitute, the legal, valid and binding obligation of each legal entity constituting the Seller, enforceable in accordance with their respective terms.
5.3      No Conflict or Violation . Except for the approvals of applicable Governmental Agencies with respect to the transfer of the Permits and Leases and except as set forth on Schedule ‎5.3 , the execution and delivery by Seller of this Agreement and the Ancillary Agreements, the performance of its obligations under this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby do not and shall not (a) violate or conflict with, or result in a breach of, or require any consent, approval or similar action under, or give rise to a right of termination, cancellation or acceleration of any obligation or loss of benefit under: (i) the articles of formation, bylaws or other organizational documents of Seller; (ii) any Contract or Lease; or (iii) any Legal Requirement, Order or Permit applicable to Seller or the Purchased Assets, except in the case of clauses (ii) and (iii) as would not be material to the Business; (b) result in the creation of any Lien upon any of the Purchased Assets (other than Permitted Liens); or (c) have a Material Adverse Effect on the Purchased Assets. Notwithstanding the foregoing, Seller is not making, any representation or warranty, express or implied, regarding the fair market value of the Purchased Assets and the Assumed Liabilities or whether a filing of a Notification and Report Form is required pursuant to the HSR Act with respect to the transactions contemplated hereby.

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5.4      Contracts . The Contracts set forth on Schedule ‎2.1(e) include all of the material contracts and agreements to which Seller is a party, or by which Seller is bound, in each case, that relate primarily to the Real Property or the Mines, other than the Leases. To the Seller’s Knowledge and except as would not be material, each Contract set forth on Schedule ‎2.1(e) is in full force and effect, and is a valid and binding obligation of the applicable Seller entity, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium, or other laws relating to or affecting the enforcement of creditors’ rights and remedies generally, except as enforcement may be limited by general principles of equity. Seller has provided true and correct copies of all material written Contracts and, to Seller’s Knowledge, summaries of all material Contracts that are not in writing, in each case other than Contracts that contain confidentiality restrictions that prohibit Seller from providing copies to Purchaser. Except as otherwise noted on Schedule ‎2.1(e) , neither the applicable Seller entity nor, to the Seller’s Knowledge, any other party thereto is in default under or in breach of any such Contract in any material respect and, to Seller’s Knowledge, no event has occurred which, with notice or lapse of time or both, would constitute a material default or material breach. Seller has not received any written notice that any of the other parties to the Contracts will cancel, terminate or fail to perform such party’s obligations under any of the Contracts.
5.5      Compliance with Legal Requirements; Permits .
(a)
Except as set forth on Schedule ‎5.5(a ), Seller is in compliance in all material respects with all applicable Legal Requirements and Orders applicable to the Business or the Purchased Assets. The Seller has not received any written notice of or, to the Seller’s Knowledge, been charged with the material violation of any Legal Requirements in connection with the Business or the Purchased Assets. As of the date hereof, the Seller has not received written notice that it is under investigation with respect to the violation of any Legal Requirements in connection with the Business, and, to the Seller’s Knowledge, there are no facts or circumstances which could form the basis for any such material violation. To Seller’s Knowledge, the contractors and similar designees of the Seller who have operated the Mines at the direction of the Seller, have, at all times, operated the Mines in compliance in all material respects with applicable Legal Requirements. This Section ‎5.5(a) does not relate to matters with respect to Taxes, which are the subject of Section ‎5.9 , to environmental matters, which are the subject of Section ‎5.10 , or to labor matters, which are the subject of Section ‎5.11 .
(b)
Schedule ‎2.1(g) contains a list and description of all material Permits that are issued to the Seller and used in the Business or that are required for the operation by Seller of the Business as currently conducted, other than any Excluded Permits. Except as set forth on Schedule ‎2.1(g) and ‎5.10 , (i) the Seller is not in default or violation in any material respect, and, to the Seller’s Knowledge, no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation in any material respect, any term,

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condition or provision of any Permit set forth on Schedule ‎2.1(g) , in either instance which has not been abated or resolved, (ii) each Permit set forth on Schedule ‎2.1(g) is in full force and effect, (iii) there is no pending or threatened termination, revocation, cancellation or suspension of any Permit and (iv) the Seller has not received any written notice from any Governmental Agency that any of its properties, facilities, equipment, operations or business procedures or practices fails to comply in any respect with any Permit set forth on Schedule ‎2.1(g) , in each case, which failure has not been resolved or abated.
5.6      Real Property .
(a)
Schedule ‎1.1(c) sets forth an accurate and complete list of all Owned Real Property. True and complete copies of the following have heretofore been provided to the Purchaser: (i) all deeds and instruments of conveyance to Seller relating to the Owned Real Property. Except as otherwise set forth in Schedule ‎5.6(b) , there are no outstanding options or rights of first refusal to purchase any of the Owned Real Property or any interest therein. Seller has not created or permitted any Liens (except for Permitted Liens) on the Owned Real Property. Except as would not have a Material Adverse Effect, (i) subject to the standard warranty limitations as set forth in a special warranty deed, the Seller has good and marketable title to the Owned Real Property, free and clear of all Liens, except for Permitted Liens, (ii) the Seller has obtained all appropriate certificates of occupancy, licenses, easements and rights of way required to use and operate the Owned Real Property in the manner in which the Owned Real Property is currently being used and operated in connection with the Business, (iii) no Seller has received written notice of any intention on the part of any issuing authority to cancel, suspend or modify any approvals, licenses or permits relating to the owned Real Property and (iv) no Seller has received written notice of any proposed special assessment which would materially and adversely affect the Owned Real Property.
(b)
Except as set forth on Schedule ‎5.6(b) , Seller is not a party to any Contract in which Seller has granted an interest in any Owned Real Property to any other Person. With respect to the Owned Real Property, there are no actions in eminent domain or other similar customs pending, or, to the Seller’s Knowledge, threatened against the Owned Real Property.
(c)
With respect to the Leases, (i) there are no material defaults, breaches or uncured violations by any Seller under any of the Leases, including any lost coal events, and, to Seller’s Knowledge, no event has occurred that (whether with or without notice, the lapse of time or the happening or occurrence of any other event) would constitute a material default, breach or uncured violation by any Seller under any Lease, including any lost coal events); (ii) there are no material defaults, breaches or uncured violations by any other

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party, or to Seller’s Knowledge, any events, which with notice, the passage of time or both, would constitute such material defaults, breaches or violations by any other party under any of the Leases; (iii) each such material Lease is in full force and effect and constitutes a valid and binding obligation of each applicable Seller and, to such Seller’s Knowledge, the other parties thereto; (iv) there are no existing disputes between any Seller and any other party to any of the Leases or, to Seller’s Knowledge, any party having rights under or with respect to the Leases that are expected to result in a claim of material default or breach by any Seller thereof, or give rise to any right of termination exercisable against any such Seller, and no party to any of the Leases has terminated or, to Seller’s Knowledge, expects to terminate any of the Leases as a result of the transactions contemplated by this Agreement, the Ancillary Agreements or otherwise; (v) each applicable Seller has paid all rent, royalties and other payments due and payable under each Lease, and has otherwise complied in all material respects with the Leases; (vi) the Seller has delivered to the Purchaser a true and complete copy of each Lease, including all material amendments and exhibits, and a true and complete list of all prepaid royalties and un-recouped minimum royalties for each Lease; (vii) except as set forth on Schedule ‎5.6(c) or as may be provided in the Leases, Seller is not a party to any Contract in which Seller has granted an interest in the Leased Real Property to any other Person and there are no Persons other than the Seller in possession of, or with rights to mine, the Leased Real Property; (viii) the leasehold estate created by each Lease is free and clear of all Liens created by, through or under the applicable Seller other than Permitted Liens; (ix) except as may be provided in the Leases, there are no outstanding options or rights of first refusal to purchase or sublease any of the Seller’s interest in the Leases or any interest therein that would restrict the transfer of such Lease to Purchaser; and (x) the Leases and the Owned Real Property constitute all material real property rights and interests necessary for Seller to mine and remove coal on the property covered by Seller’s Wyoming Department of Environmental Quality, Land Quality Division Permits No. 428 and 218.
5.7      Title to Purchased Assets . Except as set forth on Schedule ‎5.7 , the Seller has good and marketable title or good and transferrable title, as applicable, to all of the Purchased Assets, subject only to Permitted Liens, and upon the consummation of the transactions contemplated hereby (including the receipt of any required consents as contemplated by Section ‎8.5 ), including the transfer of the Permits, the Purchaser will have acquired good and marketable title in and to, or a valid leasehold interest in, each of the Purchased Assets, free and clear of all Liens, except for Permitted Liens. The Purchased Assets constitute on the Closing Date all of the tangible assets, rights and properties used by the Seller in the Business and located in Wyoming, other than any Retained Asset set forth in Schedule ‎2.2(r) .

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5.8      Litigation . Except as set forth on Schedule ‎5.8 , (a) there are no material Proceedings pending or, to Seller’s Knowledge, threatened in any court or before any Governmental Agency by or against Seller, in each case, relating to the Business or the Purchased Assets or which would prevent the performance by Seller of this Agreement or the Ancillary Agreements or any of the transactions contemplated hereby or thereby or which declare or would be reasonably expected to declare the same unlawful or cause the rescission thereof, and (b) to Seller’s Knowledge, there are no outstanding material Orders that will affect the Business or the Purchased Assets after the date hereof.
5.9      Taxes .
(a)
Seller has timely filed all material Tax returns that it was required to file with respect to the Purchased Assets and the Business and timely paid all Taxes which will have been required to be paid on or prior to the date hereof, the non-payment of which would result in a material Lien on any Purchased Asset. All such Tax returns are correct and complete in all material respects and were prepared in substantial compliance with all applicable Legal Requirements. The Sellers have collected or withheld all amounts required to be collected or withheld by the Seller for all material Taxes or assessments related to the Purchased Assets and the Business, and all such amounts have been paid to the appropriate Governmental Agency or set aside in appropriate accounts for future payment when due.
(b)
No claim has been made in writing by any Governmental Agency in a jurisdiction where the Seller does not file Tax returns with respect to the Business or the Purchased Assets that the Seller is or may be subject to taxation by that jurisdiction with respect to the Business or the Purchased Assets. In addition to the foregoing, the Seller shall pay any and all Taxes that may be now or hereafter due with respect to the Business or the Purchased Assets or the activities of the Seller, in each case, through and including the Closing Date, except as set forth in this Agreement.
(c)
There are no pending or, to Seller’s Knowledge, threatened audits, investigations, disputes, notices of deficiency, claims or other actions for or relating to any Liability for Taxes with respect to the Business or the Purchased Assets. There is no dispute or claim concerning any Tax liability of the Seller related to the Purchased Assets or the Business claimed or raised by any Governmental Agency in writing.
(d)
Each Seller is a United States Person within the meaning of Section 7701 of the Code.

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5.10      Mining and Environmental Matters . Except as set forth on Schedule ‎5.10 or as would not be material to the Business, and in connection with its operation of the Business, to Seller’s Knowledge:
(a)
the Seller is and has been, since July 26, 2016, in compliance in all material respects with all Mining Law and Environmental Law except with respect to violations that have been fully abated or resolved, and the Seller has obtained, and is in compliance in all material respects with, all Environmental Permits and Mining Permits required for the conduct of its Business and operations, and the ownership, occupation, operation and use of the Real Property and the Mines and other property in accordance with Mining Law and Environmental Law, and all such Environmental Permits or Mining Permits are valid and in full force and effect in all material respects.
(b)
(i) there are no pending nor threatened Environmental Claims or other actions to deny, revoke or terminate any Environmental Permits or Mining Permits possessed or applied for by the Seller and there has not been any such Environmental Claim since July 26, 2016 except with respect to violations that have been abated or resolved; (ii) there are no pending Environmental Claims or threatened Environmental Claims against the Seller; (iii) the Seller is not subject to any outstanding Order under any Environmental Law or Mining Law; (iv) no Seller or, to Seller’s Knowledge, any other Person has Released, stored or disposed of any Hazardous Substances in quantities and concentrations requiring notification of a Governmental Agency or remediation pursuant to Environmental Law on or beneath the Purchased Assets or in a manner that would reasonably be expected to result in material Liability, remediation or investigation under any Environmental Law or Mining Law except pursuant to, and in compliance with, a Permit.
(c)
(i) Seller has not located and no other Person has located, any underground storage tanks on the Real Property that could reasonably be expected to result in material Environmental Liability and (ii) with respect to the Purchased Assets, there are no underground injection wells, radioactive materials or septic tanks or waste disposal pits in which any Hazardous Materials have been discharged or disposed other than in compliance in all material respects with all Environmental Laws or as would not be reasonably expected to require any material remediation or investigation pursuant to Environmental Law.
Notwithstanding any provision herein to the contrary, the parties hereto acknowledge their understanding and agreement that (i) for purposes of this Agreement, no representations or warranties other than those expressly set forth in this Section ‎5.10 and Section ‎5.5(b) shall be deemed to have been made with regard to compliance with Mining Permits, Environmental Permits, Mining Law and Environmental Law; and (ii) no representation, warranty, agreement or other provision in this Agreement or in any other

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Ancillary Agreement relating to Seller’s compliance with applicable Mining Permits, Environmental Permits, Mining Law or Environmental Law shall be construed to mean that Seller has complied with any water quality standard or parameter (e.g., as to selenium, conductivity or otherwise) other than a water quality standard or parameter required by Environmental Laws or expressly set forth in the Mining Permits and Environmental Permits listed on Schedule ‎2.1(g) .
5.11      Labor Matters .
(a)
The Purchaser has been provided with a complete and correct list of all Business employees of Contura Coal West, LLC as of the date hereof (the “ Employees ”), together with their respective job titles, status, and the annual or hourly rate of base compensation and annual bonuses payable to each such Employee. No Seller has received any written notification of any unfair labor practice charges or complaints relating to any Employees or the Business pending before any Governmental Agency having jurisdiction thereof, nor are there any current union representation claims against any Seller involving any Employee or the Business and, to Seller’s Knowledge, no such charges or claims are threatened.
(b)
Contura Coal West, LLC is not a party to any collective bargaining agreement and, to Seller’s Knowledge, there are no union organizing activities or proceedings involving, or any pending petitions for recognition of, a labor union or association as the exclusive bargaining agent for, or where the purpose is to organize, any group or groups of Employees. There is not currently pending, with regard to any facility which is a Purchased Asset or involved in the Business, any proceeding before the National Labor Relations Board, pursuant to which any labor organization is seeking representation of any Employees. To Seller’s Knowledge, there are no strikes, work stoppages, work slowdowns or lockouts, nor any threats thereof, by or with respect to any of the Employees.
(c)
With respect to the Business, there exist (i) no material litigation alleging discrimination or involving alleged violations of any fair employment law, wage payment law, occupational safety and health law; and (ii) to Seller’s Knowledge, no material threatened or pending litigation arising out of employment relationships, or other employment-related federal, state or local Legal Requirement.
(d)
Within the 90 days prior to the date hereof, no Seller has implemented any plant closing or layoff of Employees in violation of the WARN Act or the regulations promulgated thereunder. No Seller has incurred any material liability under the WARN Act with respect to the Business that remains unsatisfied as of the Closing Date or will not otherwise be satisfied by such Seller.

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5.12      Permitting . Neither Seller nor any Person that, together with any Affiliates of Seller, owns ten percent (10%) or more of the equity interests of Seller has been subject to any bond forfeiture, permit suspension or revocation or similar effort or any Proceeding instituted by any Governmental Agency that would prohibit or materially adversely affect the transfer of the Permits to Purchaser. Neither Seller nor any Persons “owned or controlled” by Seller or any of their respective Affiliates is currently (a) ineligible to receive additional surface mining permits or (b) under investigation to determine whether its eligibility to receive additional surface mining permits should be revoked, i.e. , “permit blocked.” As used in this Section ‎5.12 , “owned or controlled” shall be defined as set forth in 30 C.F.R. Section 773.5 (1991); and “Proceeding” shall mean any action, suit, proceeding, arbitration, investigation or audit, whether or not by any Governmental Agency.
5.13      Brokers . Except as set forth on Schedule ‎5.13 , no Person has acted, directly or indirectly, as a broker, finder or financial advisor for the Seller or its equity-holders in connection with the transactions contemplated hereby, and no Person has, or immediately following the consummation of the transactions contemplated hereby will have, as a result of any arrangement by Seller or its equity-holders, any right, interest or valid claim against the Purchaser for any commission, fee or other compensation as a broker, finder or financial advisor in connection with the execution of this Agreement or the Ancillary Agreements or the transactions contemplated hereby or thereby.
5.14      Employee Benefits . Contura Coal West, LLC is not a party to any material Employee Plan except as set forth on Schedule ‎5.14 . Neither Contura Coal West, LLC nor the Business participates in a “multiemployer plan” (within the meaning of Section 3(37) of ERISA).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
6.1      Organization and Authority of Purchaser . The Purchaser is a limited liability company duly formed, validly existing and in good standing under the Legal Requirements of the State of Delaware. The Purchaser is authorized, qualified or licensed to do business as a foreign corporation in the State of Wyoming and is not required to be so authorized, qualified or licensed in any other jurisdiction, except where the failure to be so qualified or licensed would not reasonably be expected to have a Purchaser Material Adverse Effect. The Purchaser has full limited liability company power and authority to (a) own, operate and lease its properties and assets as and where currently owned, operated and leased, and (b) carry on its business as currently conducted. The Purchaser has full power and authority to execute, deliver and perform this Agreement and the Ancillary Agreements. The execution, delivery and performance by the Purchaser of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company action on the part of the Purchaser, and this Agreement constitutes, and the Ancillary

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Agreements when executed, will constitute, the legal, valid and binding obligation of the Purchaser, enforceable in accordance with their respective terms.
6.2      No Conflict or Violation . The execution and delivery by Purchaser of this Agreement and the Ancillary Agreements, the performance of its obligations under this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby do not and shall not, in any such case, violate or conflict with, and do not and shall not result in a breach of, or require any consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or loss of benefit under (a) Purchaser’s organizational documents; (b) any Legal Requirement, Order or Permit applicable to Purchaser; or (c) any contract, agreement, arrangement, undertaking or license to which Buyer is a party or by which Purchaser’s assets or properties are bound, except in the case of clauses (b) and (c), as would not have a Purchaser Material Adverse Effect.
6.3      Consents . Purchaser acknowledges that Seller has not made, and is not making, any representation or warranty, express or implied, regarding the fair market value of the Purchased Assets and the Assumed Liabilities or whether a filing of a Notification and Report Form is required pursuant to the HSR Act with respect to the transactions contemplated hereby.
6.4      Litigation . There are no Proceedings pending or, to the knowledge of the Purchaser, threatened in any court or before any Governmental Agency by or against Purchaser, in each case, which would prevent the performance by Purchaser of this Agreement or the Ancillary Agreements or any of the transactions contemplated hereby or thereby or which declare or would be reasonably expected to declare the same unlawful or cause the rescission thereof.
6.5      Brokers . Except as set forth on Schedule ‎6.5 , no Person has acted, directly or indirectly, as a broker, finder or financial advisor for the Purchaser or its equity-holders in connection with the transactions contemplated hereby, and no Person has, or immediately following the consummation of the transactions contemplated hereby will have, as a result of any arrangement by Purchaser or its equity-holders, any right, interest or valid claim against Seller for any commission, fee or other compensation as a broker, finder or financial advisor in connection with the execution of this Agreement or the Ancillary Agreements or the transactions contemplated hereby or thereby.
6.6      Sufficiency of Funds . Taking into account the delivery to Purchaser of the Estimated Pre-Closing Wyoming Production Tax Liabilities Amount, Purchaser will have sufficient cash on hand or other sources of immediately available funds to enable it to consummate the transactions contemplated by and perform its obligations under this Agreement and the Ancillary Agreements, including to replace at Closing or at any other time contemplated by this Agreement (i) all Reclamation Performance Bonds associated with the Permits in the amount as may be determined by the DEQ and (ii) all Lease Bonds associated with Leases in the amount as may be determined by the applicable Governmental Agency. Neither Seller nor any of its Affiliates will be required to assume or

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have any obligation or liability under any agreements with respect to financing to be entered into by Buyer in connection with the transactions contemplated by this Agreement.
6.7      Permitting . Neither Purchaser nor any Person that, together with any Affiliates of Purchaser, owns ten percent (10%) or more of the equity interests of Purchaser has been subject to any bond forfeiture, permit suspension or revocation or similar effort or any Proceeding instituted by any Governmental Agency that would prohibit or materially adversely affect the transfer of the Permits to Purchaser. Neither Purchaser nor any Persons “owned or controlled” by Purchaser or any of their respective Affiliates is currently (a) ineligible to receive additional surface mining permits or (b) under investigation to determine whether its eligibility to receive additional surface mining permits should be revoked, i.e. , “permit blocked.” As used in this Section ‎6.7 , “owned or controlled” shall be defined as set forth in 30 C.F.R. Section 773.5 (1991); and “Proceeding” shall mean any action, suit, proceeding, arbitration, investigation or audit, whether or not by any Governmental Agency.
6.8      Ownership and Control File . Purchaser has filed with the applicable Governmental Agency an ownership and control file necessary to facilitate the timely transfer of the Permits to Purchaser as such timing is contemplated under the terms of this Agreement (the “ Purchaser Ownership and Control File ”).
6.9      Federal Coal Lease Qualifications . Purchaser meets the Legal Requirements needed to have federal coal leases transferred to it, including specifically under 43 CFR Group 3400.
ARTICLE VII
TAX MATTERS
7.1      Tax Cooperation; Allocation of Taxes
(a)
Purchaser and Seller agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Business and the Purchased Assets (including access to books and records) as is reasonably necessary for the filing of all Tax returns, the making of any election relating to Taxes, the preparation for any audit by any Taxing Authority, and the prosecution or defense of any claim, suit or proceeding relating to any Tax. Purchaser and Seller shall retain all books and records with respect to Taxes pertaining to the Purchased Assets for a period of at least six years following the Closing Date. On or after the end of such period, each party shall provide the other with at least 10 days prior written notice before destroying any such books and records, during which period the party receiving such notice can elect to take possession, at its own expense, of such books and records. Seller and Purchaser shall cooperate with each other in the conduct of any audit or other proceeding relating to Taxes involving the Purchased Assets or the Business.

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(b)
All real property taxes, personal property taxes and similar ad valorem obligations levied with respect to the Purchased Assets for a taxable period which includes (but does not end on) the Closing Date (collectively, the “ Apportioned Obligations ”) shall be apportioned between Seller and Purchaser based on the number of days of such taxable period included in the Pre-Closing Tax Period and the number of days of such taxable period after the Closing Date (any such portion of such taxable period, the “ Post-Closing Tax Period ”). Seller shall be liable for the proportionate amount of such taxes that is attributable to the Pre-Closing Tax Period, and Purchaser shall be liable for the proportionate amount of such taxes that is attributable to the Post-Closing Tax Period. For the avoidance of doubt, Seller shall be liable for all interest and penalties incurred in a Post-Closing Tax Period if such interest and penalties are attributable to Taxes levied with respect to the Purchased Assets in a Pre-Closing Tax Period.
(c)
All transfer, excise, franchise, property, documentary, sales, use, stamp, registration, recording, value added and other such Taxes and fees (including any penalties and interest) imposed on Purchaser or Seller in connection with this Agreement and the Ancillary Agreements (“ Transfer Taxes ”) shall be apportioned equally between Purchaser and Seller. Purchaser and the Seller will cooperate to timely make all Tax returns, reports, forms and other filings as may be required to comply with the Legal Requirements relating to such Transfer Taxes and the Seller will cooperate with Purchaser in making such filings.
(d)
Apportioned Obligations shall be timely paid, and all applicable filings, reports and returns shall be filed, as provided by Applicable Law. The paying party shall be entitled to reimbursement from the non-paying party in accordance with ‎7.2(b). Upon payment of any such Apportioned Obligation or Tax, the paying party shall present a statement to the non-paying party setting forth the amount of reimbursement to which the paying party is entitled under ‎7.2(b) together with such supporting evidence as is reasonably necessary to calculate the amount to be reimbursed. The non-paying party shall make such reimbursement promptly but in no event later than 10 days after the presentation of such statement. Any payment not made within such time shall bear interest at a rate of 6% until paid.
7.2      Tax Treatment .
(a)
Purchaser and Seller agree, for U.S. federal income tax purposes, to treat the Royalty as defined in the Royalty Agreement retained by Seller as a production payment retained on the sale of a mineral property under Section 636(b) of the Code. As a result, the allocation between principal and interest of each payment made under the Royalty Agreement by Purchaser to Seller for U.S. federal income tax purposes shall be determined pursuant to the

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“contingent bond method” set forth in Treasury Regulations Section 1.1275-4(c). Purchaser and Seller have agreed to the projected payment schedule set forth in Exhibit J to reasonably reflect the relative expected values and timing of payments to be made pursuant to the Royalty; provided, however, that nothing herein shall change or abrogate, or be deemed to change or abrogate, Purchaser’s disclaimers under Article VI of this Agreement. Neither Purchaser nor Seller makes any representation or warranty with respect to the projected payment schedule. In addition, for U.S. federal income tax purposes in general, and for purposes of applying the contingent bond method in particular, Purchaser and Seller have agreed that they shall consistently report for U.S. tax purposes: (1) Purchaser as the sole “issuer” of the Royalty; and (2) Seller as the sole “holder” of the Royalty, (as all such terms are applied in Treasury Regulation Section 1.1275-4(c)). Finally, Purchaser and Seller have agreed for U.S. federal income tax purposes that Seller will report its Royalty that burdens each of the Belle Ayr mine and the Eagle Butte mine as a single tax “property” under Section 614 of the Code, in recognition of the “economic interdependence” of its interest in such Mines resulting under the terms of the Royalty Agreement.
(b)
Neither Purchaser nor Seller shall take any action without the prior written consent of the other that would result in a deemed or actual reissuance (for U.S. federal income tax purposes) of the Royalty, which is treated as a production payment pursuant to Section 636(b) of the Code and the Treasury Regulations thereunder.
ARTICLE VIII
CERTAIN COVENANTS AND AGREEMENTS
8.1      Interim Operations . From the date hereof until the earlier of the Closing and the termination of this Agreement, except as set forth in Schedule ‎8.1 or as expressly permitted or required by this Agreement or as otherwise expressly consented to by the Purchaser in writing (which consent will not be unreasonably withheld, conditioned or delayed), and to the extent not prohibited by applicable Legal Requirements, each entity comprising the Seller, agrees, severally and not jointly, that it shall:
(a)
operate the Business in all material respects in the Ordinary Course of Business;
(b)
maintain the Purchased Assets in as good working order and condition as at present, ordinary wear and tear excepted;
(c)
keep in full force and effect all insurance policies currently in place, or other substantially equivalent insurance coverage without being in default or failing to give any notice or present any claim thereunder;

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(d)
not sell, lease, license (as licensor), assign, dispose of or transfer any material tangible or intangible property or contract right, in each case that is a Purchased Asset, other than the sale of coal inventory in the Ordinary Course of Business;
(e)
not create or permit to be created any Lien (other than a Permitted Lien) on any of the Purchased Assets;
(f)
not take any action that would have a Material Adverse Effect; and
(g)
not take any action to do or engage (or commit to do or engage) in any of the foregoing.
8.2      Reasonable Access . Except as otherwise provided herein, from the date hereof until the earlier of (i) the termination of this Agreement and (ii) the Closing Date, subject to reasonable advance notice, the Seller shall permit the Purchaser and the Purchaser’s attorneys, consultants, accountants, production, environmental, maintenance, and safety managers, and other representatives to have reasonable onsite access during regular business hours to the Seller’s management personnel (including those involved in operations) and the Seller’s Real Property, Tangible Personal Property, Mines, books, records (including Tax records), accountants’ working papers (whether of internal or outside accountants), Contracts, Permits and documents in each case as related to the Purchased Assets, and will furnish the Purchaser copies of such documents and with such information with respect to the Purchased Assets and Business as the Purchaser may from time to time reasonably request.
8.3      Notification of Certain Matters . Each party shall give notice to the other party, as promptly as reasonably practicable upon becoming aware of (a) any fact, change, condition, circumstance, event, occurrence or non-occurrence that has caused or is reasonably likely to cause any representation or warranty in this Agreement made by it to be untrue or inaccurate at any time after the date hereof and prior to the Closing, if such untruth or inaccuracy would reasonably be expected to result in the failure of the condition set forth in Section ‎9.2(b) , (b) any material failure on its part to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder, or (c) the institution of or the threat of institution of any Proceeding against it related to this Agreement or the transactions contemplated hereby; provided that the delivery of any notice pursuant to this Section ‎8.3 shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice, or the representations or warranties of, or the conditions to the obligations of, the parties hereto.
8.4      Efforts to Meet Conditions to Closing .
(a)
Upon the terms and subject to the conditions set forth in this Agreement, each of the Seller and the Purchaser agrees to use their commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing,

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all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby and by the Ancillary Agreements and to obtain satisfaction or waiver of the conditions precedent to such transactions, including (i) the obtaining of all necessary actions or nonactions and Consents from Governmental Agencies and the making of all necessary registrations and filings as promptly as practicable and the taking of all steps as may be necessary to obtain a Consent from, or to avoid a Proceeding by, any Governmental Agency, (ii) the obtaining of all permits, licenses, consents, authorizations, permit applications or other approvals necessary for Buyer to take possession of the Purchased Assets and operate the Business from and after the Closing; provided , nothing in this Agreement shall obligate or require either Seller or Purchaser to pay any consent or approval fee or other compensation to secure any such permits, licenses, consents, authorizations, permit applications or other approvals (other than customary filing and similar fees related to the transfer of the Permits and the Leases with the U.S. federal government and the State of Wyoming, which, if paid by Seller, shall be reimbursed by Purchaser), (iii) the defending of any Proceedings challenging this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any Governmental Agency vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and the Ancillary Agreements.
(b)
To the extent not prohibited by Legal Requirements, the Seller and the Purchaser shall use their commercially reasonable efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Legal Requirement in connection with the transactions contemplated by this Agreement. Each party shall give the other party reasonable prior notice of any communication with, and any proposed understanding, undertaking or agreement with, any Governmental Agency regarding any such filings or any such transaction. Each party shall permit the other party to review and discuss in advance, and shall consider in good faith the views of the other party in connection with, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, proposals or other materials to be submitted or made to the Governmental Agencies with respect to such filings. In addition, no party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Agency in respect of any such filings, investigation or other inquiry without giving the other party prior notice of such meeting and, if permitted, the opportunity to attend.

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(c)
This Section ‎8.4 shall not apply to the Permits, which are governed by Section ‎8.6 .
8.5      Certain Provisions Relating to Consents; Release of Guarantees .
(a)
Nothing in this Agreement nor the Ancillary Agreements shall be construed as an attempt or agreement to assign any Purchased Asset, including any Contract or other right, which by its terms or by Legal Requirements is not assignable without the Consent of a third party or absent consent is cancelable by a third party in the event of an assignment (“ Non-Assignable Assets ”), unless and until such Consent shall have been obtained. Without limiting any obligations set forth in Section ‎8.4 and subject to Section ‎8.5(d) , each party shall, and shall cause its Affiliates (including, in the case of Seller, Contura Energy Services, LLC, but only in the case of the Contracts designated on Schedule ‎2.1(e) as “Partial Assignment Contracts”) to, use commercially reasonable efforts in endeavoring to obtain (x) such Consents as promptly as practicable after the date hereof, including the negotiation and execution of any transfer or consent documentation required by the counterparty so long as such documentation does not create any material obligations of any party not otherwise set forth herein and (y) a release of the Seller by the counterparty from any liability constituting an Assumed Liability (“ Seller Release ”). To the extent permitted by applicable Legal Requirements and any applicable Contract, in the event Consents to the assignment thereof cannot be obtained, (i) Seller and Purchaser will cooperate in a mutually agreeable arrangement under which the Purchaser would obtain, to the extent possible, the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-contracting, sub-licensing, sub-leasing or contract mining and (ii) Seller and Buyer will continue to use commercially reasonable efforts in endeavoring to obtain such Consents and Seller Releases.
(b)
Notwithstanding any provision in this Agreement to the contrary, (i) in the event any Consent required for the assignment of any of the Contracts or Leases is not obtained prior to Closing, Seller shall not be in breach or non-fulfillment of any representation, warranty, covenant, obligation or other agreement set forth herein solely as a result thereof, so long as Seller satisfied its obligations herein in attempting to obtain such Consent, and (ii) nothing in this Agreement (other than Sections ‎8.5(c) and ‎8.5(d) ) shall obligate or require either party or its respective Affiliates to pay any consent or approval fee or other compensation to secure any such approval or consent.
(c)
In addition, Purchaser shall use its commercially reasonable efforts to, effective as of the Closing, cause itself to be substituted in all respects for Seller and its Affiliates, and for Seller and its Affiliates to be released in respect of all obligations of Seller and any of its Affiliates under each guarantee,

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indemnity, surety bond, letter of credit, letter of comfort or other obligation relating primarily to the Business identified on Schedule ‎8.5(c) (the “ Seller Guarantees ”). In the event that such substitution and release is not obtained for any Seller Guarantee as of the Closing (and without prejudice to any other rights Seller may have in respect thereof), then following the Closing, Purchaser shall (i) indemnify, defend, release and hold harmless Seller and its Affiliates from and against, and reimburse Seller and its Affiliates for, any and all amounts paid or incurred by Seller or its Affiliates in connection with any such Seller Guarantee that is not substituted and released including, without limitation, any cost of maintenance of any letter of credit or other collateral paid to maintain such Seller Guarantee and (ii) continue to use its commercially reasonable efforts to cause itself to be substituted in all respects for Seller and its Affiliates, and for Seller and its Affiliates to be released in respect of all obligations of Seller and any of its Affiliates under such Seller Guarantee. This subsection does not apply to Reclamation Performance Bonds and Lease Bonds, which are the subject of Section ‎8.6(c) .
(d)
Notwithstanding any provision in this Agreement to the contrary in the event any Consent (a “ CSA Consent ”) required for any of the Contracts constituting an agreement for the sale of coal (a “ CSA ”) is not obtained prior to Closing, then (x) Seller and Purchaser will continue to use commercially reasonable efforts in endeavoring to obtain such Consents and Seller Releases and (y) the provisions of this Section ‎8.5(d) shall apply with respect to each such CSA.
(i)    Seller (and specifically Contura Coal Sales, LLC) and Purchaser shall enter into a Back-To-Back Coal Supply Agreement substantially in the form of Exhibit H hereto (each, a “ Back-To-Back Coal Supply Agreement ”) under which Purchaser shall agree to supply, deliver and sell to Seller, and Seller shall agree to accept, purchase and pay for, all coal the seller of coal under such CSA is obligated to supply, deliver and sell to the customer thereunder such that Seller will have the ability to fulfill its remaining obligations under such CSA until the termination or expiration thereof. Each Back-to-Back Coal Supply Agreement shall have economic terms identical to, but offsetting, the CSA associated with such Back-to-Back Coal Supply Agreement. If any such CSA Consent is obtained after Closing, then the related CSA shall immediately and automatically transfer to Purchaser and the related Back-To-Back Coal Supply Agreements executed by the parties shall thereupon terminate as set forth therein.
(ii)    Notwithstanding Section ‎8.5(a) , if Seller reasonably deems it advisable in order to obtain any CSA Consent, with prior notice to Purchaser, Seller shall be permitted in its reasonable discretion to negotiate any transfer or consent documentation required by the counterparty, including

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documentation that amends the terms of such CSA; provided that (i) any such documentation shall be subject to Purchaser’s written approval, not to be unreasonably withheld, and (ii) if the Net Present Value of such CSA as in effect as of the Closing exceeds the Net Present Value of such CSA after giving effect to any such amendment, then Seller and Purchaser shall each bear 50% of the amount of such excess.
(iii)    In the event that any counterparty to any CSA asserts a claim that consummation of the transactions contemplated by this Agreement, including entry into the Back-to-Back Coal Supply Agreement, constitutes a breach of or otherwise violates such CSA, then Seller shall be permitted to control the defense and resolution of such claim in its reasonable discretion; provided that (i) to the extent that Seller reasonably deems it advisable in the defense and resolution of such claim to enter into an agreement amending the terms of such CSA, such amendment shall be subject to Section ‎8.5(d)(ii) and (ii) 50% of any Losses incurred by Seller that are based upon, attributable to or result from such claim (“ CSA Assignment Losses ”) shall constitute Assumed Liabilities.
(iv)    Notwithstanding anything to the contrary in any Back-To-Back Coal Supply Agreement, in the event that any counterparty to any CSA does not make a payment due to Contura Coal Sales, LLC under such CSA by the date that is 15 days following the due date for such payment (the right to receive any such overdue payment under any CSA, a “ CSA Overdue Receivable ”), then with respect to each such CSA Overdue Receivable (x) Contura Coal Sales, LLC shall assign to Purchaser, and Purchaser shall assume, Contura Coal Sales, LLC’s right to receive such CSA Overdue Receivable under such CSA pursuant to an assignment agreement (each, a “ CSA Overdue Receivable Assignment ”), (ii) other than Contura Coal Sales, LLC’s obligation to assign such CSA Overdue Receivable to Purchaser in accordance with this Section ‎8.5(d)(iv) , Seller shall have no obligation or liability to Purchaser with respect to such CSA Overdue Receivable, including any obligation to collect such CSA Overdue Receivable, and (iii) each CSA Overdue Receivable Assignment shall provide that the assignment of such CSA Overdue Receivable from Contura Coal Sales, LLC to Purchaser thereunder constitutes Purchaser’s sole and exclusive remedy against Seller with respect to such CSA Overdue Receivable.
(e)
Notwithstanding any provision in this Agreement to the contrary, (i) title to any Ranch shall not be transferred hereunder until each Reclamation Performance Bond for which such Ranch serves as collateral has been released in accordance with Section ‎8.6(c) , and upon the release of all such Reclamation Performance Bonds with respect to a given Ranch, Seller shall deliver or cause to be delivered to Triple H Real Estate, LLC the Deeds, free

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and clear of all Liens other than Permitted Liens, in substantially the form of Exhibit F , with respect to such Ranch, duly executed and notarized by each applicable Seller, along with any documents (including transfer tax forms) required by the applicable city, county, or state to effectuate the recording of the Deed; and (ii) title to any nuclear coal analyzers and any nuclear material contained therein, in each case that is included in the Purchased Assets, shall not be transferred to Purchaser until Purchaser has obtained all Permits issued by the Nuclear Regulatory Commission (the “ NRC Permits ”) necessary to own and operate such assets, including approval for the transfer of NRC License 49-26963-03, whereupon Seller shall deliver or case to be delivered to Purchaser a Bill of Sale covering such assets in substantially the form of Exhibit A-1.
(f)
This Section ‎8.5 shall not apply to the Permits or the Coal Leases, which are governed by Section ‎8.6 .
8.6      Permitting .
(a)
Documents; Filings . After the date hereof, Seller (with Purchaser’s full cooperation) shall use commercially reasonable efforts to prepare and deliver all applications (the “ Permit Transfer Applications ”) necessary to transfer the Permits, other than the Excluded Permits, and the coal leases set forth on Schedule ‎8.6(a) (the “ Coal Leases ”) to Purchaser. Purchaser (with Seller’s full cooperation) shall prepare said Permit Transfer Applications and submit the same to the respective Governmental Agencies’ offices as soon as reasonably practicable following Closing but in any event within three Business Days after the Closing. Seller and Purchaser shall diligently pursue and obtain the approval of all Governmental Agencies to transfer the Permits and the Coal Leases to Purchaser (such period following Closing through the transfer of the Permits and the Coal Leases, other than the Excluded Permits, to Purchaser shall herein be referred to as the “ Transfer Period ”). No more than three Business Days prior to the Closing, Purchaser shall update the Purchaser Ownership and Control File on file with the applicable Governmental Agency to facilitate the timely transfer of the Permits and the Coal Leases to Purchaser. Notwithstanding anything stated herein to the contrary, to the extent that transfers of certain Permits or Coal Leases to Purchaser are required to be approved by the applicable Governmental Agencies under the applicable Legal Requirements, (i) the foregoing provisions shall require the Purchaser to diligently pursue and obtain such approval during the period following execution of this Agreement, (ii) at the Closing, Purchaser will obtain the benefits and assume the obligations under such Permits and Coal Leases pursuant to the Ancillary Agreements, including but not limited to the Permit Operating Agreement and Lease Assignments, (iii) any confirmatory approval by the applicable Governmental Agency not obtained prior to the Closing will be obtained after Closing, and

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(iv) in accordance with the forgoing each such transfer shall for all purposes of this Agreement be effective as of the Closing Date.
(b)
Explosives . Purchaser shall arrange for a Person possessing the required licenses to take possession from Seller at Closing of the explosives held for use by Seller in operating the Business.
(c)
Reclamation Performance Bonds and Lease Bonds . Schedule 1.1(a) sets forth a list of the applicable Reclamation Performance Bonds and Lease Bonds of Seller (the “ Seller Bonds ”) and the amount of such Seller Bonds (the “ Bond Amount ”). As promptly as practicable after the date hereof, Purchaser shall use its best efforts to cause substitute reclamation performance bonds and collateral bonds relating to the Permits and bonds relating to the Leases, each in the applicable Bond Amount, to be issued with Purchaser as the principal (the “ Purchaser Bonds ”) to replace in their entirety all Seller Bonds.  Seller agrees that, subject to the remaining provisions of this Section 8.6(c), the collateral posted by Seller (the “ Seller Collateral ”) for the Seller Bonds may be shared by Purchaser for the Purchaser Bonds. Upon the posting by Purchaser of collateral to replace the Seller Collateral (the “ Purchaser Collateral ”), the corresponding Seller Collateral shall be released.  Purchaser shall use its best efforts to obtain third party financing (the “ Purchaser Refinancing ”) in an amount sufficient to replace the Seller Collateral as promptly as practicable following the Closing, and Purchaser shall be obligated to replace the Seller Collateral posted with respect to any Seller Bond upon the earlier of (i) with respect to all Seller Bonds, receipt of the Purchaser Refinancing and (ii) with respect to each Seller Bond, within two (2) days of notice from any Governmental Agency that the Purchaser Bonds are required to advance the permit transfer process or otherwise effectuate the transfer from Seller to Purchaser of any Permit or Lease in respect of which such Seller Bond was posted, whether such notice is received upon the filing the Permit Transfer Applications or at some later date (the earlier of (i) and (ii) with respect to any Seller Bond, the “ Collateral Replacement Deadline ”).  If, as of the Collateral Replacement Deadline with respect to any Seller Bond, any Seller Collateral posted with respect to such Seller Bond remains outstanding, the full amount of such Seller Collateral shall be immediately due and payable to Seller by Purchaser, and such amount shall accrue interest at a rate of 6% per annum, compounding annually (the “ Collateral Replacement Payment ”). In order to secure Purchaser’s obligation to make the Collateral Replacement Payment, Purchaser hereby grants to Seller a security interest in all Purchased Assets that constitute mobile equipment, including without limitation, shovels, vehicles and drills (but excluding any such equipment subject to a lien in favor of Joy Global Surface Mining, Inc.). Purchaser hereby authorizes Seller to file any financing statement or similar record in any filing office Seller deems appropriate, such record to be in such form as Seller

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deems appropriate. Purchaser will do all such further things and execute such further documents as Seller may reasonably request to confirm, perfect or validate the foregoing grant of security or to enable Purchaser to protect and enforce the same. Notwithstanding any provision of this Agreement to the contrary, it is expressly understood and agreed by Seller and Purchaser that, after the date hereof, neither Seller nor any of its Affiliates will bear the financial burden of further processing or posting of additional bonds or other collateral for any transfer of the Permits or issuance of the permits contemplated by any permit applications that constitute Permits; provided, however, that Seller shall cooperate with Purchaser to permit Purchaser to post the Purchaser Collateral for transfer of the Permits or issuance of such permits, so long as Seller and its Affiliates suffer no financial consequences thereby.
(d)
Signage . Within 30 days after the transfer of any Permit to Buyer, Buyer shall replace any applicable signage to reflect that such transfer has occurred (including, for the avoidance of doubt, removing all names or marks of Seller or its Affiliates included on such signage).  
8.7      Further Assurances . Following the Closing Date, the Seller and the Purchaser shall, from time to time, execute and deliver such additional instruments, documents, conveyances or assurances and take such other actions as shall be necessary, or otherwise reasonably be requested by the Purchaser or the Seller, to confirm and assure the rights and obligations provided for in this Agreement and the Ancillary Agreements and render effective the consummation of the transactions contemplated hereby and thereby, or otherwise to carry out the intent and purposes of this Agreement, provided that none of the foregoing shall increase any right or obligation of any party hereunder.
8.8      Transition Services . For a period of 120 days after the Closing Date (the “ Transition Period ”), if requested by the other party, the Seller, its Affiliates (including Contura Energy Services, LLC) and the Purchaser and its Affiliates shall, at no cost or expense to the other party, other than reimbursement of actual out-of-pocket costs or expenses (which shall not include general overhead or employee compensation and benefit expenses), cause their respective employees, agents and representatives to, provide transition services (“ Transition Services ”) to the other party in support of the efficient separation of the Business from the other businesses of the Seller and its Affiliates (the “ Retained Businesses ”). The Transition Services shall be provided in the same manner and to the same extent as provided by the Retained Businesses to the Business, or by the Business to the Retained Business, as applicable, prior to the Closing Date, and neither party shall have any obligation to provide any Transition Services that were not provided by the Retained Businesses to the Business, or by the Business to the Retained Business, as applicable, prior to the Closing Date. Without limiting the foregoing, the Transition Services may include, if requested by a party, (i) maintenance and support for existing accounting, information technology and financial systems, (ii) assistance in the migration to stand alone accounting systems, (iii) assistance with finalizing accounting records for

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pre-Closing periods (including related controls and supporting documents), (iv) administrative services, support, systems and coverage, (v) assistance with preparation of tax filings related to pre-Closing periods (including tax flings relating to the Wyoming Production Tax Liabilities), which assistance shall extend until the filing of such returns and the final resolution of the matters covered thereby, notwithstanding that such period may extend beyond 120 days after the Closing Date, (vi) assistance with the completion of the Wyoming Audit and any other audits with respect to pre-Closing periods, which assistance shall extend until the completion of such audits, notwithstanding that such period may extend beyond 120 days after the Closing Date, (vii) assistance with the administration of benefits coverage for employees or former employees of the Business, (viii) assistance with the transfer of documentation and records relating to pre-Closing periods, including, but not limited to, any information stored electronically or in other mediums and (ix) assistance with copying and scanning records constitute Purchased Assets or Retained Assets, respectively. Seller reserves the right in its discretion to give Purchaser and its employees access to and use of any intellectual property, software, licensing rights or other assets related to information technology and systems at times after the Closing to facilitate Purchaser’s performance of certain Transition Services for Seller’s benefit and for no other purpose.
8.9      Correspondence . Until the 12-month anniversary of the Closing Date or, with respect to electronic communications, until 30 days after the Closing Date, Seller shall use its commercially reasonable efforts to promptly forward to Purchaser any mail (including electronic mail) that the Seller receives after the Closing Date to the extent relating to the applicable Purchased Assets or the Business. During such periods, Purchaser likewise shall use its commercially reasonable efforts to promptly forward to Seller any mail (including electronic mail) that the Purchaser receives after the Closing Date to the extent relating to the Retained Assets, the Retained Liabilities or the employment of Employees during the period prior to the Closing Date.
8.10      Employees .
(a)
At or prior to the Closing, the Purchaser may make offers of employment to those Employees as the Purchaser may determine in its sole discretion. Any such offers of employment shall be on such terms and conditions as the Purchaser may determine in its sole discretion. No provision in this Section ‎8.10 , whether express or implied, shall (a) create any third-party beneficiary or other rights in any Employee or former employee of the Seller (including any beneficiary or dependent thereof), any other participant in any Employee Plan or any other Person; (b) create any rights to continued employment with the Seller, the Purchaser or any of their Affiliates; or (c) constitute or be deemed to constitute an amendment to any Employee Plan or any other plan, program, policy, agreement or arrangement providing for compensation or benefits sponsored or maintained by the Seller, the Purchaser or any of their respective Affiliates.

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(b)
Notwithstanding Section ‎8.10(a) , Purchaser will (i) offer employment to the Employees set forth on Schedule ‎8.10(b) effective as of the Closing at a level of compensation within 10% of each such Employee’s current compensation and with benefits that are consistent with the benefits currently offered by Purchaser and (ii) maintain the employment of those Employees set forth on Schedule ‎8.10(b) for at least the six months immediately following the Closing with compensation and on other terms and conditions that are comparable to the level of compensation and other terms and conditions applicable to such Employees immediately prior to the Closing. Nothing in this Section ‎8.10(b) shall confer any rights or benefits on any Person, other than the parties to this Agreement. Seller understands and agrees that it is Seller’s sole responsibility to terminate the employment of any of Seller’s employees that Seller does not wish to retain as its employee as of the Closing. Seller acknowledges that it is within Purchaser’s sole discretion to offer employment or not offer employment to any of the Employees, except as otherwise provided in this Section ‎8.10(b) .
(c)
Seller, or an Affiliate of Seller, shall be obligated to provide continuation health care coverage, to the extent required by and in accordance with Section 4980B of the Code and Sections 601 to 608, inclusive, of ERISA (“ COBRA ”) to Employees and former employees performing services in connection with the Business who left employment or otherwise experienced a COBRA qualifying event on or prior to the Closing Date and who retain a right to a benefit under any of the Employee Plans that are subject to COBRA, and their qualified beneficiaries (as defined in COBRA) and to whom the Seller is, on the Closing Date, either (i) providing such continuation health care coverage, or (ii) under an obligation to provide such continuation health care coverage at the election of the Employee or former employee or the qualified beneficiary. For all Employees who become employees of Purchaser and who elect COBRA continuation health coverage under an Employee Plan, Seller will make such coverage (with regard to medical and dental coverage) available to each such Employee through December 31, 2017 or such later date as may be mutually agreed by Seller and Purchaser at the same cost as for active employees of Seller, so long as such Employee remains employed by Purchaser, and Purchaser shall reimburse Seller for all costs and expenses incurred in providing such coverage within 15 Business Days of receipt of an invoice of such costs and expenses. Purchaser shall have responsibility and shall assume the Liability for any and all obligations under COBRA with respect to all Employees who become employees of Purchaser and their qualified beneficiaries, who, in any such case become covered under a group health plan of Purchaser and who incur a COBRA qualifying event after the Closing Date.
(d)
Purchaser shall be solely responsible for, and agrees to hold harmless the Sellers from and against, any liability arising under the WARN Act with respect

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to any Employee who becomes an employee of Purchaser after the Closing Date and who is found to have suffered an “employment loss” under the WARN Act as a result of being terminated by Purchaser on or after the Closing Date.
(e)
Seller shall be solely responsible for, and agrees to hold harmless the Purchaser from and against, any liability arising under the WARN Act with respect to any Employee, whether or not such Employee becomes an employee of Purchaser, who is found to have suffered an “employment loss” under the WARN Act as a result of being terminated by Seller on or before the Closing Date.
8.11      Bulk-Sales Laws . The Purchaser hereby waives compliance by the Seller with the requirements and provisions of any “bulk-transfer” Legal Requirements of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to the Purchaser.
8.12      Disclaimer of Warranties . Purchaser acknowledges that the representations and warranties contained this Agreement or in any Ancillary Agreement to which Seller is a party are the only representations or warranties given by Seller, and that all other express or implied warranties are disclaimed. Without limiting the foregoing, Purchaser acknowledges that, except as otherwise expressly provided in this Agreement or in the Ancillary Agreements to which Seller is a party, the Purchased Assets are being conveyed to Purchaser “AS IS”, “WHERE IS,” and “WITH ALL FAULTS.”  WITHOUT LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER AND ITS RESPECTIVE RELATED PERSONS HAVE MADE NO REPRESENTATION OR WARRANTY CONCERNING (A) ANY FUTURE REVENUES, COSTS, EXPENDITURES, CASH FLOW, RESULTS OF OPERATIONS, FINANCIAL CONDITION, OR PROSPECTS THAT MAY RESULT FROM THE OWNERSHIP, USE, OR SALE OF THE PURCHASED ASSETS, OR (B) THE CONDITION OF THE PURCHASED ASSETS, INCLUDING COMPLIANCE WITH ANY ENVIRONMENTAL LAWS OR OTHER LAWS. 
8.13      Schedules . Subject to Section ‎8.1 , prior to the Closing, Seller may supplement or amend its Schedules to reflect any matter that (i)(x) arises after December 5, 2017 or (y) is not material to the Business and (ii) does not add any tangible personal property used in the Business and located in Wyoming to Schedule 2.2(r) . Any such supplemental or amended disclosure shall be deemed to have cured any breach of any representation or warranty made in this Agreement for purposes of Article XII , but will not be deemed to have cured any such breach made in this Agreement nor to have been disclosed as of the date of this Agreement for purposes of determining whether or not the conditions set forth in ‎Article IX hereof have been satisfied.

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ARTICLE IX
CONDITIONS TO CLOSING
9.1      Conditions to Obligations of Each Party . The respective obligations of the Seller and the Purchaser to consummate the transactions contemplated by this Agreement at each Closing are subject to the satisfaction of the following conditions:
(a)
no Legal Requirement or Order of any kind shall have been enacted, entered, promulgated or enforced by any Governmental Agency that would prohibit the consummation of the transactions contemplated by this Agreement or have the effect of making them illegal and no Proceeding brought by any Governmental Agency seeking to impose such an Order is pending.
9.2      Conditions to Obligations of the Purchaser . The obligations of the Purchaser to consummate the transactions contemplated by this Agreement to be performed at the Closing are subject to the satisfaction or fulfillment of the following conditions precedent, any of which may be waived in whole or in part in writing by the Purchaser:
(a)
the Seller shall have delivered, or caused to be delivered, all of the items required by Section ‎4.2 ;
(b)
all representations and warranties of the Seller set forth in ‎Article V of this Agreement, without regard to any qualification or limitation with respect to materiality, shall be true and correct as of the Closing Date as if made on and as of such date (except for representations and warranties that are made as of a specific date, which shall be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct has not had a Material Adverse Effect. The Seller shall have performed or complied in all material respects with all covenants and agreements contemplated by this Agreement to be performed by the Seller at or prior to the Closing Date. With respect to the Closing, the Purchaser will have received a certificate attesting to the matters set forth in this Section ‎9.2(b) , duly executed by the Seller;
(c)
there shall not have occurred any Material Adverse Effect since the date of this Agreement; and
(d)
Purchaser shall have received evidence reasonably acceptable to the Purchaser that the Seller and its Affiliates are not “Permit blocked” and shall not have received notice from any federal, state or local Governmental Agency that any such party is ineligible to receive any Mining Permits (or under investigation regarding the same).
9.3      Conditions to Obligations of the Seller . The obligations of the Seller to consummate the transactions contemplated by this Agreement to be performed at the

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Closing are subject to the satisfaction or fulfillment of the following conditions precedent, any of which may be waived in whole or in part in writing by the Seller:
(a)
the Purchaser shall have delivered, or caused to be delivered, all of the items required by Section ‎4.3 ;
(b)
all representations and warranties of the Purchaser set forth in ‎Article V of this Agreement or in any document delivered pursuant hereto, without regard to any qualification or limitation with respect to materiality, shall be true and correct as of the Closing Date as if made on and as of such date (except for representations and warranties that are made as of a specific date, which shall be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct has not had a Purchaser Material Adverse Effect. The Purchaser shall have performed or complied in all material respects with all covenants and agreements contemplated by this Agreement to be performed by the Purchaser at or prior to the Closing Date. With respect to the Closing, the Seller will have received a certificate attesting to the matters set forth in this Section ‎9.3(b) , duly executed by the Purchaser; and
(c)
Seller shall have received evidence reasonably acceptable to the Seller that the Purchaser and its Affiliates are not “Permit blocked” and shall not have received notice from any federal, state or local Governmental Agency that any such party is ineligible to receive any Mining Permits (or under investigation regarding the same).
9.4      Frustration of Closing Conditions . Neither the Purchaser nor the Seller may rely on the failure of any condition set forth in Section ‎9.1 , Section ‎9.2 , or Section ‎9.3 , as the case may be, to be satisfied if such failure results in whole or in part from such party’s failure to comply with its obligations to consummate the transactions, or any other obligations, contemplated by this Agreement and the Ancillary Agreements as required by the provisions of this Agreement.
ARTICLE X
TERMINATION OF AGREEMENT
10.1      Right to Terminate . Notwithstanding any other provision of this Agreement, this Agreement may be terminated at any time prior to the Closing Date:
(a)
by either Seller or Purchaser if the Closing shall have not occurred by December 31, 2017 (the “ Termination Date ”), provided, however , that the right to terminate this Agreement under this Section ‎10.1(a) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date;

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(b)
by the mutual written consent of the Purchaser and the Seller;
(c)
by the Purchaser or the Seller, if a Governmental Agency of competent jurisdiction has issued a final, non-appealable Order, or adopted any Legal Requirement, in each case permanently enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements; or
(d)
by the Purchaser or the Seller, as the case may be, if the other party has materially breached or failed to perform any of its (i) representations or warranties contained herein (unless the aggregate failure of such representations or warranties does not have a Material Adverse Effect or a Purchaser Material Adverse Effect, as applicable), or (ii) covenants or agreements contained herein, which breach or failure to perform in the case of either of the foregoing clauses ‎(i) or ‎(ii) has not been cured by the Termination Date.
The party desiring to terminate this Agreement pursuant to this ‎Article X shall give written notice of such termination to the other party.
10.2      Effect of Termination . Each party’s right of termination under Section ‎10.1 is in addition to any other rights it may have under this Agreement or otherwise and the exercise of a right of termination will not be an election of remedies. In the event of termination of this Agreement pursuant to Section ‎10.1 , this Agreement will terminate and become void and of no further force and effect and there will be no further Liability on the part of any party hereto, except that the provisions of Section ‎10.1 , this Section ‎10.2 , and ‎Article XIII will survive any termination of this Agreement. Nothing in this Section ‎10.2 will relieve any party of Liability for any willful or material breach of this Agreement.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
11.1      Survival . The representations, warranties, covenants and agreements of the Seller and the Purchaser, as applicable, contained in this Agreement will survive the Closing Date but only to the extent specified below:
(a)
All covenants and agreements contained in this Agreement will survive the Closing Date in accordance with their respective terms; provided that the covenants and agreements contained in Section ‎8.1 will survive the Closing Date until the 24-month anniversary of the Closing Date.
(b)
The representations and warranties contained in this Agreement will survive the Closing Date until the 24-month anniversary of the Closing Date, at which point such representations and warranties and any claim for indemnification by the Purchaser or the Seller, as applicable, on account thereof will expire and terminate, except for pending claims identified in writing on or before

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such date to a party obligated to provide indemnification under ‎Article XII; provided, however, that the Fundamental Representations shall survive indefinitely and the representations and warranties set forth in Section ‎5.9 (Taxes) shall survive the Closing until ninety (90) days after the date on which the statute of limitations applicable to the matter covered by such representation or warranty expires.
ARTICLE XII
INDEMNIFICATION
12.1      General Indemnification Obligation .
(a)
After Closing, each entity comprising the Seller hereby agrees to indemnify, defend and hold harmless the Purchaser, its Affiliates, and their respective directors, officers, managers, employees, Affiliates, agents, advisors, representatives, successors and assigns (each, a “ Purchaser Indemnified Party ”), severally and not jointly, from and against, and pay and reimburse the Purchaser Indemnified Parties for, any and all losses, Liabilities, claims, obligations, deficiencies, demands, judgments, damages, interest, fines, penalties, claims, suits, actions, causes of action, assessments, awards, settlements, Taxes, costs, disbursements and expenses (including reasonable costs of investigation and reasonable defense and attorneys’ and other professionals’ fees), whether or not involving a Third Party Claim (individually, a “ Loss ” and, collectively, “ Losses ”):
(i)
based upon, attributable to or resulting from the failure of any of the representations or warranties made by such entity in this Agreement (including any Schedule or Exhibit attached hereto) or under any Ancillary Agreement to be true and correct in all respects at and as of the Closing Date;
(ii)
based upon, attributable to or resulting from the breach of any covenant or other agreement on the part of such entity under this Agreement or under any Ancillary Agreement; and
(iii)
(A) relating to the Retained Assets or (B) constituting or related to any Retained Liabilities that are Retained Assets or Retained Liabilities of such entity.

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(b)
After Closing, the Purchaser hereby agrees to indemnify, defend and hold harmless the Seller and its Affiliates, and their respective directors, officers, managers, employees, Affiliates, agents, advisors, representatives, successors and assigns (each, a “ Seller Indemnified Party ”) from and against, and pay and reimburse the applicable Seller Indemnified Parties for, the amount of any Losses:
(i)
based upon, attributable to or resulting from the failure of any representation or warranty made by the Purchaser in this Agreement (including any Schedule or Exhibit attached hereto) or under any Ancillary Agreement to be true and correct in all respects at and as of the Closing Date;
(ii)
based upon, attributable to or resulting from the breach of any covenant or other agreement on the part of the Purchaser under this Agreement or any Ancillary Agreement; and
(iii)
(A) related to the Business (other than any Retained Assets) or any of the Purchased Assets to the extent arising after the Closing Date or (B) constituting or related to any Assumed Liabilities.
(c)
The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section ‎12.1(a)‎(i) or ‎(b)‎(i) , as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section ‎12.1(a)‎(i) or ‎(b)‎(i) exceeds $400,000 (the “ Threshold ”), in which event the Indemnifying Party shall be required to pay or be liable for Losses in excess of the Threshold. The aggregate amount of all Losses for which an Indemnifying Party shall be liable to the Indemnified Party for indemnification under Section ‎12.1(a)‎(i) or ‎(b)‎(i) , as the case may be, shall not exceed $10,000,000 (the " Cap "). For the avoidance of doubt, for purposes of this paragraph, the Threshold and the Cap shall be measured separately for each of Purchaser, on the one hand, and Seller, collectively, on the other hand. Notwithstanding anything to the contrary in this Agreement, the limitations set forth in this Section ‎12.1(c) shall not apply to any Losses based upon (i) actual fraud or willful misconduct in the making of any representation or warranty in this Agreement or (ii) a breach of any Fundamental Representations.
(d)
Payments by an Indemnifying Party pursuant to this Section ‎ 12.1 in respect of any Loss shall be limited to the amount of any Liability or damage that remains after deducting therefrom any (i) insurance proceeds actually received (less expenses, including reasonable attorneys’ fees, attributable to such receipt) by the Indemnified Party, if any, in respect of insurance policies maintained by the Indemnified Party and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such damages. The Indemnified Party shall use its commercially

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reasonable efforts to recover under such insurance policies. Notwithstanding anything to the contrary in this Section ‎12.1(d ), in no event will any Indemnified Party be required to (i) pursue any such insurance proceeds prior to seeking indemnification under this ‎Article XII or (ii) commence litigation to recover proceeds under such insurance policies; provided , however , the Indemnified Party shall reasonably cooperate with and provide reasonable assistance to Indemnifying Party in efforts to recover such proceeds. The Indemnified Party shall remit to the Indemnifying Party any such insurance proceeds (less expenses and increases in premiums attributable to such Loss) that are paid to the Indemnified Party with respect to the Losses for which the Indemnified Party has been previously compensated pursuant to this ‎Article XII .
(e)
Notwithstanding any other provision of this Agreement, in no event shall Seller or Purchaser be liable for punitive, exemplary, diminution of value, lost profits, special or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, unless such damages are asserted or recovered by a third party in a Third Party Claim.
12.2      Indemnification Procedures . Any party (the “ Indemnified Party ”) desiring to assert an indemnity claim hereunder shall provide the other party (the “ Indemnifying Party ”) with notice of such indemnity claim within a reasonable time after receiving actual notice of the facts, events, circumstances or conditions giving rise to such claim; provided, however, if the indemnity claim is based upon a claim asserted in writing by a third party (a “ Third Party Claim ”), notice thereof shall be provided within ten (10) Business Days after receipt of notice by the Indemnified Party of the Third Party Claim; provided, further, that the failure to give timely notice hereunder shall not relieve the Indemnifying Party from any obligation under this Agreement, except to the extent, if any, that the Indemnifying Party is prejudiced thereby. When any indemnity claim is made with respect to a Third Party Claim and thereafter, the Indemnified Party shall provide the Indemnifying Party with copies of any reasonably available materials in its possession describing the facts or containing information with respect to such Third Party Claim.
12.3      Specific Performance . Each party’s obligation under this Agreement is unique. If any party should breach its covenants under this Agreement, the parties each acknowledge that it would be extremely impracticable to measure the resulting Losses; accordingly, the non-breaching party or parties, in addition to any other available rights or remedies they may have under the terms of this Agreement, shall be entitled to specific performance and/or to obtain an injunction or injunctions to prevent breaches of this Agreement, and each party expressly waives the defense that a remedy in damages will be adequate and waives any obligation that that a bond be posted.
12.4      Exclusive Remedies . Subject to Section ‎12.3 , the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all Losses for any breach of any representation, warranty, covenant, agreement or obligation set forth herein, shall be

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pursuant to the indemnification provisions set forth in this ‎Article XII . In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under applicable Legal Requirements, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Legal Requirement, other than the right to obtain indemnification pursuant to this ‎Article XII . Nothing in this Section ‎12.4 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled pursuant to Section ‎12.3 .
12.5      Additional Security for Purchaser’s Performance . To provide Seller with enhanced security from the risk of Purchaser failing to perform its obligations under the Royalty Agreement and any Back-to-Back Coal Supply Agreement and to protect Seller from potential Losses and Liabilities that may result from Purchaser’s breach of such obligations, Purchaser has agreed to deliver at Closing a corporate guaranty in substantially the form of Exhibit I attached hereto (the “ Purchaser Corporate Guaranty ”), issued by and duly executed on behalf of Blackjewel Holdings L.L.C., a Delaware limited liability company, guaranteeing for Seller’s benefit the Purchaser’s performance of Purchaser’s obligations and Liabilities under this Agreement, the Royalty Agreement and the Back-to-Back Coal Supply Agreements.
12.6      Covenant Regarding Seller’s Performance . Contura Energy, Inc. agrees to cause each Seller to perform all of such Seller’s covenants, agreements, obligations and liabilities under this Agreement and the Back-to-Back Coal Supply Agreements, including, without limitation, advancing funds sufficient to allow such Seller to perform all of such Seller’s covenants, agreements, obligations and liabilities under this Agreement and the Back-to-Back Coal Supply Agreements. For the avoidance of doubt, any failure of Seller to perform any of such Seller’s covenants, agreements, obligations and liabilities under this Agreement or the Back-to-Back Coal Supply Agreement shall constitute a breach by Contura Energy, Inc. of its performance guaranty obligations under this Section ‎12.6 unless cured by Contura Energy, Inc. For the avoidance of doubt, the inability of any Seller to perform any of such Seller’s covenants, agreements, obligations or liabilities under this Agreement or any Back-to-Back Coal Supply Agreement shall not be a defense to Contura Energy, Inc.’s performance guaranty obligations under this Section ‎12.6 .
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1      Notices . All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered personally to the recipient; (b) three (3) Business Days after being sent by certified United States Mail, postage prepaid, return receipt requested; or (c) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid). Such notices, demands and other

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communications shall be sent to the Seller and to the Purchaser at the addresses indicated below:
If to Purchaser:
 
 
 
 
Blackjewel L.L.C.
 
 
1051 Main Street
 
 
Milton, WV 25541
 
 
Attn: Jeffery A. Hoops, President & CEO
 
 
 
 
 
with a copy (which shall not constitute notice) to:
 
 
Dinsmore & Shohl LLP
 
 
611 Third Avenue
 
 
Huntington, West Virginia 25701
 
 
Attn: M. Edward Cunningham, II, Esq.
 
 
 
If to Seller:
 
 
 
 
Contura Coal West, LLC
 
 
Contura Wyoming Land, LLC
 
 
Contura Coal Sales, LLC
 
 
c/o Contura Energy Services, LLC
 
 
Attn:  Mark M. Manno, General Counsel
 
 
P.O. Box 848, Bristol, TN 37621-0848 (U.S. mail)
 
 
340 Martin Luther King Jr. Blvd., Bristol, TN 37620 (physical address)
 
 
 
 
 
with a copy to:
 
 
Contura Energy Services, LLC
 
 
Attn:  Mark M. Manno, General Counsel
 
 
P.O. Box 848, Bristol, TN 37621-0848 (U.S. mail)
 
 
340 Martin Luther King Jr. Blvd., Bristol, TN 37620 (physical address)
or to such other address as any party hereto may, from time to time, designate in writing delivered pursuant to the terms of this Section ‎13.1 .
13.2      Waivers and Amendments . No amendment, modification or discharge of this Agreement (including any Schedule or Exhibit), and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other

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respect or at any other time. Neither the waiver by any party hereto of a breach or of a default under any provisions of this Agreement, nor the failure by any party on one or more occasions to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.
13.3      Fees and Expenses . Except to the extent expressly provided otherwise in this Agreement, each party will bear its own costs, fees and expenses (including attorneys’, consultants’, and advisors’ fees and expenses) incurred in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby.
13.4      Successors and Assigns . This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of its rights, interests or obligations may be assigned by any party hereto, including by operation of law, without the prior written consent of the other party; provided that each party to this Agreement may assign this Agreement and/or any Ancillary Agreement without such approval to its respective Affiliates or in connection with the sale of all or substantially all of its assets to an assignee that (i) has a creditworthiness (e.g., assets and capitalization) and net worth not less than that of the assigning party as of the Closing and (ii) agrees to be bound by the terms and conditions of the applicable agreement and assume all obligations of the assigning party hereunder or thereunder, as applicable.
13.5      Consent to Jurisdiction . Each party irrevocably submits to the jurisdiction of the state and federal courts with territorial jurisdiction over Campbell County, Wyoming for the purposes of any Proceeding arising out of this Agreement or any transaction contemplated hereby. Each party agrees to commence any such Proceeding either in a United States District Court for the District of Wyoming, or if such Proceeding may not be brought in such court for jurisdictional reasons, in a state court located in Campbell County, Wyoming. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section ‎13.1 shall be effective service of process for any Proceeding in the said courts with respect to any matters to which it has submitted to jurisdiction in this Section ‎13.5 . Each party irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of this Agreement or the transactions contemplated hereby in said courts, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum.
13.6      Governing Law . This Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Delaware, without regard to its principles of conflicts of laws.  
13.7      Waiver of Jury Trial . EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY

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IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, and (ii) IT MAKES SUCH WAIVER VOLUNTARILY.
13.8      Severability . Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability (a) of the offending term or provision in any other situation or in any other jurisdiction or (b) of any other term or provision of this Agreement.
13.9      Entire Agreement . This Agreement (including the Schedules and Exhibits hereto), the Confidentiality Agreement and, once executed and delivered, the Ancillary Agreements constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings, agreements, statements, representations, documents, instruments, communications and correspondence, whether written or oral, express or implied, by or among the parties hereto and their respective Affiliates, representatives and agents with respect to the subject matter hereof and thereof.
13.10      Construction . The parties and their respective counsel have participated jointly in the negotiation and drafting of this Agreement and the Ancillary Agreements. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement or the Ancillary Agreements. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The word “or” is used in the inclusive sense of “and/or.”
13.11      Incorporation of Exhibits and Schedules . The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof. There may be included in the Schedules and elsewhere in this Agreement items and information that are not “material,” and such inclusion shall not be deemed to be an acknowledgment or agreement that any such item or information (or any non-disclosed item or information of comparable or greater significance) is “material,” or to affect the interpretation of such term for purposes of this Agreement. Matters reflected in the Schedules are not necessarily limited to matters required by this Agreement to be disclosed in the Schedules. The representations and warranties of Seller set forth in ‎Article V are hereby excepted to the extent disclosed in the disclosure schedules provided by Seller. Such disclosure schedules shall be arranged in sections corresponding to the numbered and lettered paragraphs contained in this Agreement. Any information disclosed on one schedule hereunder shall

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also be considered to be disclosed on any other schedule hereunder and for purposes of any other section hereof to the extent applicability of such information is reasonably apparent. No disclosure in the Schedules relating to a possible breach or violation of any Contract, Legal Requirement or Order shall be construed as an admission or indication that such breach or violation exists or has occurred. Any capitalized term used in the Schedules and not otherwise defined therein shall have the meaning given to such term in this Agreement. Any headings set forth in the Schedules are for convenience of reference only and shall not affect the meaning or interpretation of any of the disclosures set forth in the Schedules.
13.12      Headings . The headings contained in this Agreement are included for convenience only, and will not affect in any way the meaning or interpretation of this Agreement.
13.13      Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The electronic transmission of any signed original counterpart of this Agreement shall be deemed to be the delivery of an original counterpart of this Agreement. The executed Agreement together with any attachments hereto may be photocopied and stored on computer tapes, disks and similar electronic storage media (“ Imaged Document ”).  If an Imaged Document is introduced as evidence in any judicial, arbitration, mediation or administrative proceeding, it shall be considered as admissible evidence, provided that such Imaged Document bears the signatures of the Parties and further provided that there is no evidence that such Imaged Document has been manipulated or otherwise altered in any way. Neither Party shall object to the admissibility of the Imaged Document on the basis that such was not originated or maintained in documentary form under either the hearsay rule, the best evidence rule, or other rule of evidence.
13.14      Announcements . Purchaser shall not issue any press release or make any public announcement relating to the subject matter of this Agreement or the transactions contemplated by this Agreement without the prior approval of Seller, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing or any other provision herein or in the Confidentiality Agreement, Purchaser understands that Seller’s ultimate parent, Contura Energy, Inc., intends to make a public announcement about the execution and delivery of this Agreement and the transactions contemplated herein, and Purchaser agrees that such actions do not constitute a violation of this Agreement or the Confidentiality Agreement.
13.15      Third Parties . Except as otherwise expressly provided for in this Agreement, nothing in this Agreement, whether expressed or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any Persons other than the parties to this Agreement and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third person to any party to this Agreement, nor shall any provision give any third person any right of subrogation or action over or against any party to this Agreement.

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[Signatures appear on following page.]

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the date first set forth above.
 
PURCHASER:
BLACKJEWEL L.L.C.
 
 
 
 
 
 
By:
/s/ Jeffery A. Hoops
 
 
Name:
Jeffery A. Hoops
 
 
Title:
President and CEO
 
 
 
 
 
SELLER:
CONTURA COAL WEST, LLC
 
 
 
 
 
 
By:
/s/ C. Andrew Eidson
 
 
Name:
C. Andrew Eidson
 
 
Title:
Vice President and Treasurer
 
 
 
 
 
 
CONTURA WYOMING LAND, LLC
 
 
 
 
 
 
By:
/s/ C. Andrew Eidson
 
 
Name:
C. Andrew Eidson
 
 
Title:
Vice President and Treasurer
 
 
 
 
 
 
CONTURA COAL SALES, LLC
 
 
 
 
 
 
By:
/s/ C. Andrew Eidson
 
 
Name:
C. Andrew Eidson
 
 
Title:
Vice President and Treasurer
 
 
 
 
 
SOLELY FOR PURPOSES
OF SECTION ‎12.6 :
CONTURA ENERGY, INC.
 
 
 
By:
/s/ C. Andrew Eidson
 
 
Name:
C. Andrew Eidson
 
 
Title:
Executive Vice President and Chief Financial Officer
 
 
 
 
 
 
 
 
SOLELY FOR PURPOSES
OF SECTION ‎8.5(a)   AND  
SECTION ‎8.8
CONTURA ENERGY SERVICES, LLC
 
 
By:
/s/ C. Andrew Eidson
 
 
Name:
C. Andrew Eidson
 
 
Title:
Executive Vice President and Chief Financial Officer
 
 
 

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Exhibit 2.3


PERMIT OPERATING AGREEMENT
THIS PERMIT OPERATING AGREEMENT (“ Permit Agreement ”) is dated _________________, 2017, and is made and entered into by and between CONTURA COAL WEST, LLC , a Delaware limited liability company (“ Transferor ”), and BLACKJEWEL L.L.C. , a Delaware limited liability company (“ Transferee ”).
WITNESSETH:
WHEREAS, Transferor is in possession of, and is designated as “Permittee” of, under and pursuant to, the Permits issued by the DEQ and by other Governmental Agencies; and
WHEREAS, Transferor (together with certain of its Affiliates) and Transferee have entered into that certain Asset Purchase Agreement dated December 7, 2017 (“ Purchase Agreement ”) pursuant to which Transferor is to transfer the Permits (other than the Excluded Permits) (the “ Purchased Permits ”) to Transferee;
WHEREAS, pursuant to the Purchase Agreement, Transferee is required to cooperate fully with Transferor in order to prepare and file all necessary permit transfer applications for all of the applicable Purchased Permits from Transferor to Transferee (the “ Transfer Applications ”), and to diligently pursue and obtain the approvals of all applicable Governmental Agencies with respect thereto (“ Transfer Approvals ”); and
WHEREAS, Transferee and Transferor desire to close the transactions contemplated by the Purchase Agreement before the Transfer Approvals are obtained, and are entering into this Permit Agreement to govern their respective rights, obligations and liabilities in any way related to the Purchased Permits during the period of time beginning on the Closing and continuing through the date of receipt of all Transfer Approvals (the “ Transfer Period ”).
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and representations contained herein, the adequacy and sufficiency of which are hereby acknowledged, the parties, each intending to be legally bound, hereby agree as follows:
1. Capitalized Terms . All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement.
2.      Operation on Purchased Permits . Upon execution of this Permit Agreement, except with regard to Retained Liabilities, Transferee shall be responsible for and shall assume all Assumed Liabilities related to the Purchased Permits, and shall conduct all upkeep, maintenance and reclamation activities required to maintain the property covered by the Purchased Permits. It is expressly acknowledged and agreed by the parties that Transferee is desirous of immediately commencing and continuing mining and reclamation operations upon the property covered by the Purchased Permits. In recognition thereof,


it is expressly agreed by Transferor that, upon submitting (i) the Transfer Applications with the DEQ or other applicable Governmental Agency and (ii) any other licenses and other authorizations required by DEQ or other applicable Governmental Agencies, Transferee shall have the right to enter upon the property covered by the Purchased Permits and immediately commence and continue mining and reclamation operations, under the terms and conditions of the existing Purchased Permits and subject to all Legal Requirements, before the Transfer Approvals are obtained, with indemnification of Transferor as prescribed herein and the Purchase Agreement. Notwithstanding any provision of this Permit Agreement, the Purchase Agreement or the other Ancillary Agreements to the contrary, during the Transfer Period for any Purchased Permit, neither Transferee or any of its Affiliates nor any of their respective Related Persons shall permit any contract miner, or any other contractor that will perform any material activities or operations, to conduct any activities or operations on any of the property that is covered by such Purchased Permit without Transferor’s prior written consent, which may be withheld by Transferor in its sole discretion; provided, however, that any contract miner or any other contractor that is conducting any activities or operations on any of the property that is covered by any Purchased Permit as of the Closing may continue to conduct such activities or operations during the Transfer Period (it being understood that any increase in the scope of such activities or operations shall require the Transferor’s prior written consent, which may be withheld by Transferor in its sole discretion). Prior to commencing operations on the property covered by the Purchased Permits, Transferee shall obtain, and provide to Transferor, copies of all licenses and other authorizations as required by any Governmental Agency for Transferee to conduct operations on the property covered by the Purchased Permits. Transferor, with cooperation from Transferee, shall submit the Transfer Applications as set out herein; however, the acceptance and filing of the same shall be subject to the the DEQ or other applicable Governmental Agency agreeing to accept and file the Transfer Application. In the event a DEQ or other applicable Governmental Agency does not accept and file a Transfer Application, the Transferor with cooperation of Transferee shall diligently correct all noted deficiencies in order for the DEQ or other applicable Governmental Agency to accept and file the Transfer Applications. Transferee further agrees to execute on or before Closing the Transfer Applications, or any other forms or documents reasonably requested by Transferor or requested or required by DEQ or any other Governmental Agency. Neither the ability to submit the Transfer Applications or other information required by the DEQ or other applicable Governmental Agency, nor said office’s acceptance thereof, shall affect the Assumed Liabilities and obligations with respect to the Purchased Permits, or indemnification obligations of the parties set forth herein or in the Purchase Agreement.
3.      Right of Entry . Transferor does hereby grant to Transferee a right of entry on, over and across the property covered by the Purchased Permits, together with the right of ingress and egress to and from such property (to the extent of Transferor’s authority to do so without the resulting breach of the instruments by which Transferor has rights in the property), as necessary to maintain and comply with the terms of the Purchased Permits and to perform reclamation obligations related thereto or to achieve compliance with any applicable law or regulation. Transferee, to the extent necessary (and to the extent of

 
2
 


Transferee’s authority to do so without the resulting breach of the instruments by which Transferee has rights in the property), grants to Transferor, its successors, assigns and contractors, right of entry to the property covered by the Purchased Permits, together with the right of ingress and egress to and from such property in order to allow Transferor to exercise its rights and perform obligations as hereinafter set forth or to achieve compliance with any applicable law or regulation.
4.      Violations .
4.1.      Notices . In the event that either Transferor or Transferee receives a notice of any non-compliance, then it shall immediately give written notice of the non-compliance to other party and in any event within two (2) Business Days of receipt of such notice. Each party shall provide copies of all monthly inspection sheets received from the DEQ or other applicable Governmental Agency to the other party within two (2) Business Days of receipt of such sheets.
4.2.      Transferee NOVs . Transferee shall have the duty, at its sole cost, to defend any notice of non-compliance issued on the Purchased Permits after Closing (“ Transferee NOVs ”), to pay all fines and assessments related thereto, to correct all non-compliance related thereto, and to perform all abatement measures required by the DEQ or applicable Governmental Agency related thereto. During the Transfer Period, if Transferee fails to defend any Transferee NOVs and does not promptly and in good faith take any and all necessary action to correct and abate such Transferee NOVs, then Transferor shall have the right (but not the obligation), itself or through its contractors, to defend and/or abate said non-compliance and to freely and without interference from Transferee enter upon the property covered by the applicable Purchased Permits to do all things that it deems necessary to abate any such non-compliance, and Transferee shall reimburse Transferor for all reasonable costs and expenses associated with such defense/abatement, including the work required to abate any such non-compliance, any and all reasonable attorneys’ or other professionals’ fees that are incurred by Transferor relating thereto, and the costs of insurance required to be obtained by Transferor under Section 7 hereto.
4.3.      Transferor NOVs . With respect to written notices of non-compliance issued on the Purchased Permits prior to Closing (“ Transferor NOVs ”), Transferor shall have the right (to be exercised in its discretion), at its sole cost, to defend such Transferor NOVs and shall have the duty to pay all fines and assessments related thereto. Transferor shall not have the duty or right, except as hereinafter provided in this Section, to enter upon the property covered by the Purchased Permits to take action to abate any Transferor NOVs. Transferee shall have the duty, at Transferee’s sole cost, to correct all non-compliance and to perform all abatement measures required by the applicable Governmental Agency to the extent related thereto. During the Transfer Period, if Transferee fails to promptly and in good faith take any and all necessary action to abate such non-compliance, then Transferor shall have the right (but not the obligation), itself or through its contractors, to enter upon the property covered by the applicable Purchased Permits to do all things that it deems necessary to abate such non-compliance, and Transferee shall reimburse

 
3
 


Transferor for all reasonable costs and expenses associated with such defense/abatement, including the work required to abate any such non-compliance, any and all reasonable attorneys’ or other professionals’ fees that are incurred by Transferor relating thereto, and the costs of insurance required to be obtained by Transferor under Section 7 hereto.
4.4.      For avoidance of doubt, this Section 4 does not limit the obligations of Transferor with respect to the Retained Liabilities or Transferee with respect to the Assumed Liabilities.
5.      Transfer Applications . Transferee shall not amend the Transfer Applications without the prior written approval of Transferor.
6.      Indemnification .
6.1.      Indemnification by Transferee. Without limiting the indemnification obligations of Transferee in the Purchase Agreement, Transferee hereby agrees to be responsible for and indemnify, defend and hold harmless Transferor, its Affiliates, and their respective directors, officers, managers, employees, Affiliates, equity-holders, agents, advisors, representatives, successors and assigns (collectively, the “ Transferor Indemnitees ”) from and against, and pay and reimburse the Transferor Indemnitees for, any and all incidents of violation, non-compliance and similar occurrences, reclamation liabilities and Losses, including for illness, disease, death, bodily or personal injury, or for damage or destruction of property, or for loss of services which may be brought against them (individually or jointly) or in which they may be named a party defendant in any way arising out of, resulting from, relating to or in connection with any Purchased Permit to the extent constituting Assumed Liabilities, including (a) all costs incurred in maintaining such Purchased Permit, performing any actions required by the terms thereof or applicable law, or remedying or otherwise curing any violations, defaults, breaches, instances of non-compliance or other occurrences with respect thereto and (b) the use by Transferee Parties of the property covered by the Purchased Permits during the Transfer Period, but excluding any Retained Liabilities.
6.2.      Survival . The indemnification obligations in this Permit Agreement shall survive the term and termination of this Permit Agreement.
7.      Insurance . At all times during the term of this Permit Agreement, Transferee shall provide and maintain insurance of the type and in the amounts set out in Schedule 7 hereto, other than the Environmental Pollution Liability insurance set out thereon, which Transferee shall obtain as soon as practicable after the date hereof and maintain at all times thereafter during the term of this Permit Agreement. Prior to its entry onto the property covered by the Purchased Permits, Transferee shall provide Transferor with certificates of insurance that indicate that Transferee has the required insurance. The insurance limits and coverages specified in Schedule 7 hereto are minimum requirements and shall not be construed in any way to limit Transferee’s Liability. Transferor shall maintain after the Closing, or shall acquire, adequate insurance prior to or concurrently with its entry onto the Real Property for the risks associated with the activities permitted or required under

 
4
 


Section 4 hereto. Any policy providing such insurance for the Transferor shall name the Transferee as an additional insured thereunder.
8.      Accident Notice . During the term of this Permit Agreement, Transferee shall provide prompt written notice to Transferor of any reportable accidents or occurrences resulting in injuries to persons or property in any way arising out of or related to Transferee Parties’ operations hereunder.
9.      Termination . This Permit Agreement shall terminate upon the parties’ obtaining all Transfer Approvals; provided , however , the right of entry and access granted to Transferor in Section 3 shall survive until the Reclamation Performance Bonds on the Purchased Permits are released.
10.      Cooperation . Transferor and Transferee agree to fully cooperate with each other, and to cause their respective Affiliates to fully cooperate, in all filings, including providing any additional information and the preparation and execution of any additional documents, that may be necessary to obtain the Transfer Approvals provided , however , that nothing in this Section shall obligate Transferor or its Affiliates to pay any fee or incur any out-of-pocket expense in providing such cooperation.
11.      Notice . All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Permit Agreement shall be in writing and shall be deemed to have been given: (a) when delivered personally to the recipient; (b) when sent by certified United States Mail, postage prepaid, return receipt requested; or (c) when sent to the recipient by reputable express courier service (charges prepaid). Such notices, demands and other communications shall be sent to the Transferor and to the Transferee at the addresses indicated below:

 
5
 


If to the Transferee:
Blackjewel L.L.C.
1051 Main Street
Milton, West Virginia 25541
Attn: Jeffery A. Hoops
 
 
with a copy (which will not constitute notice) to:
Dinsmore & Shohl LLP
611 Third Avenue
Huntington, West Virginia 25701
Attn: M. Edward Cunningham, II, Esq.
 
 
If to the Transferor:
Contura Coal West, LLC
c/o Contura Energy Services, LLC
Attn: Scott Kreutzer, SVP - Land &
Environmental Affairs
P.O. Box 848
Bristol, TN 37621-0848 (U.S. mail)
340 Martin Luther King Jr. Blvd.
Bristol, TN 37620 (physical address)
 
 
with a copy (which will not constitute notice) to:
Contura Energy Services, LLC
Attn: Mark M. Manno, General Counsel
P.O. Box 848
Bristol, TN 37621-0848 (U.S. mail)
340 Martin Luther King Jr. Blvd.
Bristol, TN 37620 (physical address)
or to such other address as any party hereto may, from time to time, designate in writing delivered pursuant to the terms of this Section.
12.      Miscellaneous .
12.1.      Succession; Assignment . This Permit Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign this Permit Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party, which approval may be withheld by such party in its sole and absolute discretion; provided that each party to this Agreement may assign this Permit Agreement without such approval to its respective Affiliates or in connection with the sale of all or substantially all of its assets.
12.2.      Consent to Jurisdiction . Each party irrevocably submits to the jurisdiction of the state and federal courts with territorial jurisdiction over Campbell County, Wyoming for the purposes of any Proceeding arising out of this Permit Agreement or any transaction contemplated hereby. Each party agrees to commence any such Proceeding either in a United States District Court for the District of Wyoming, or if such Proceeding may not be brought in such court for jurisdictional reasons, in a state court located in Campbell County, Wyoming. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section ‎11 shall be effective service of process for any Proceeding in the said courts with respect

 
6
 


to any matters to which it has submitted to jurisdiction hereunder. Each party irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of this Permit Agreement or the transactions contemplated hereby in said courts, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum.
12.3.      Counterparts . This Permit Agreement may be executed in counterparts (including via facsimile and e-mail), each of which shall be deemed an original, but all of which together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto. The executed Permit Agreement together with any attachments hereto may be photocopied and stored on computer tapes, disks and similar electronic storage media (“ Imaged Document ”). If an Imaged Document is introduced as evidence in any judicial, arbitration, mediation or administrative proceeding, it shall be considered as admissible evidence, provided that such Imaged Document bears the signatures of the Parties and further provided that there is no evidence that such Imaged Document has been manipulated or otherwise altered in any way. Neither Party shall object to the admissibility of the Imaged Document on the basis that such was not originated or maintained in documentary form under either the hearsay rule, the best evidence rule, or other rule of evidence.
12.4.      Waiver . The failure of either party to seek redress for violation of or to insist upon a strict performance of any term or condition of this Permit Agreement shall not be considered a waiver, nor shall it deprive that party of the right thereafter to insist upon strict adherence to that or any other term of this Permit Agreement.
12.5.      Severability . If any provision of this Permit Agreement or its application will be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of all other applications of that provision, and of all other provisions and applications hereof, will not in any way be affected or impaired. If any court shall determine that any provision of this Permit Agreement is in any way unenforceable, such provision shall be reduced to whatever extent is necessary to make such provision enforceable.
12.6.      Headings . The headings contained in this Permit Agreement are included for purposes of convenience of reference only and shall not affect the construction or interpretation of any of its provisions.
12.7.      Entire Agreement . This Permit Agreement, together with the Purchase Agreement, constitute the entire agreement and understanding of the parties related to the subject matter hereof, and supersedes all prior proposals, understandings, agreements, correspondence, arrangements and contemporaneous oral agreements relating to the subject matter of this Permit Agreement. In the event of a conflict between the provisions of this Permit Agreement and the Purchase Agreement, the provisions of the Purchase Agreement shall control; provided , however , that the parties acknowledge and agree that this Permit Agreement contains provisions that are in addition to those set forth in the Purchase Agreement. This Permit Agreement shall not be amended or modified,

 
7
 


and no waiver of any provision hereof shall be effective, unless set forth in a written instrument authorized and executed by all the parties hereto.
[Remainder of page intentionally left blank.]


 
8
 



IN WITNESS WHEREOF, the undersigned have executed or caused this Permit Agreement to be executed by their respective officers thereunto duly authorized, each with the intent to be legally bound, as of the date first written above.
TRANSFEROR:
 
CONTURA COAL WEST, LLC
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
 
 
TRANFEREE:
 
BLACKJEWEL L.L.C.
 
 
 
By:
 
 
 
Name:
 
 
Title:
 

[ Signature page to Permit Agreement ]

Exhibit 2.4


ROYALTY AGREEMENT
This Royalty Agreement (the “ Agreement ”), effective as of _____________, 2017 (the “ Effective Date ”), is by and between Blackjewel L.L.C. , a Delaware limited liability company (the “ Purchaser ”), party of the first part, and Contura Coal West, LLC , a Delaware limited liability company, and Contura Wyoming Land, LLC , a Delaware limited liability company (collectively, “ Seller ”), party of the second part.
WHEREAS, Purchaser and Seller are parties to that certain Asset Purchase Agreement, dated as of December 7, 2017 (the “ Purchase Agreement ”).
WHEREAS, as an inducement for Seller to enter into and consummate the transactions contemplated by the Purchase Agreement, Purchaser agreed to pay to Seller a monthly overriding production royalty and an annual overriding production royalty, pursuant to the terms and conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller does hereby reserve unto itself, its successors and assigns, and the Purchaser does hereby grant and convey unto Seller, its successors and assigns, certain payment obligations in the nature of overriding royalties in the coal mined by Purchaser from the Leased Real Property and Owned Real Property (together, the “ Property ”) after the Closing Date (such coal mined from the Property by Purchaser after the Closing Date, the “ Royalty Coal ”) which Purchaser holds pursuant to the agreements identified on the attached Exhibit A (the “ Real Property Agreements ”), as follows:  
1. Definitions . All capitalized terms used in this Agreement but not otherwise defined herein are given the meanings set forth in the Purchase Agreement.
2. Overriding Production Royalties . Purchaser hereby agrees to pay to Seller the following overriding production royalty payments:
(i)      an overriding production royalty, paid monthly starting in the calendar month following the calendar month in which the Closing occurs and pursuant to Section 6, equal to the “ Applicable Percentage ” (pursuant to the table of Applicable Percentages set forth below in the footer 1 ) of the Applicable
______________________
1 The following is the table of Applicable Percentages:
Per ton coal price
Applicable Percentage
≤ $10.00
0.1%
> $10.00
0.2%
> $10.10
0.3%
> $10.20
0.4%
> $10.30
0.5%

1

Price (as defined below) for each ton of Royalty Coal sold during the preceding calendar month (the “ Monthly Overriding Production Royalty ”); provided, however, that in no event will the aggregate total of all such Monthly Overriding Production Royalty payments exceed Thirty Million Dollars ($30,000,000.00) (the “ Monthly Royalty Cap ”); and
(ii)      an overriding production royalty, paid annually starting in January 2019 until January 2029,2 in an amount equal to Ten Percent (10%) of (a) the number of tons of Royalty Coal sold in the preceding calendar year multiplied by (b) the excess, if any, of (x) the weighted average Applicable Price per ton of such coal over (y) the Benchmark Price (as defined below) for such preceding calendar year (the “ Annual Overriding Production Royalty ” and, together with the Monthly Overriding Production Royalty, collectively the “ Royalty ”); provided, however, that in no event will the aggregate total of all such Annual Overriding Production Royalty payments exceed Twenty Million Dollars ($20,000,000.00) (the “ Annual Royalty Cap ”).
(iii)      For the avoidance of doubt, the first Monthly Overriding Production Royalty and Annual Overriding Production Royalty shall not take into account any Royalty Coal that is produced or sold by Purchaser or Seller prior to the Closing Date.
3. Applicable Price; Benchmark Price; PPI .
(i)      The term “ Applicable Price ” as used in this Agreement means (a) for coal mined and sold from Leased Real Property, the sales price or other valuation of coal ( e.g. , gross selling price or similar term) used in the the Real Property Agreement covering such coal to determine the royalty amount due thereunder; and (b) for coal mined and sold from Owned Real Property, the gross sale price at which Purchaser sells such coal, directly or through an Affiliate, in an arm’s length transaction, without any deductions for taxes, sales commissions, selling costs, advertising or credit losses or other discounts. In the event Purchaser sells coal into the export market, then Purchaser may also deduct actual costs (without markup) for transporting and terminaling the coal delivered to an export facility. For the avoidance of doubt, Purchaser and Seller agree that the Applicable Price is representative of a price exclusive of any non-mining income as defined pursuant to Section 613 of the Code and the regulations promulgated thereunder.


______________________
> $10.40
0.6%
> $10.50
1.0%

2 Note to Draft : Term subject to adjustment upon additional modeling.


2

(ii)      The term “ Benchmark Price ” as used in this Agreement means, (x) with respect to 2018, $11.00 and (y) with respect to each subsequent calendar year, (A) the Benchmark Price for the preceding calendar year multiplied by (B) one (1) plus a percentage representing the annual average change (if any) in the PPI (as defined below) for such calendar year over the preceding calendar year.
(iii)      The term “ PPI ” as used in this Agreement means the [●]3 or any successor or substitute index appropriately adjusted. In the event that a substantial change is made in the term or number of items contained in the PPI, then the PPI shall be adjusted to the amount that would have been arrived at had the change in the manner of computing the PPI in effect on the Closing Date not been altered. If the PPI ceases to be published, and there is no successor thereto, such other index as Purchaser and Seller shall reasonably agree shall be substituted for the PPI.
4. Duration . The obligation of Purchaser to tender applicable Royalty payments hereunder shall begin on the date first written above and shall terminate (x) with respect to the Monthly Overriding Production Royalty, when the Monthly Royalty Cap is reached and (y) with respect to the Annual Overriding Production Royalty, when the Annual Royalty Cap is reached or upon the payment of all Annual Overriding Production Royalty payments due under this Agreement through and including the payment due in January 2029, whichever occurs earlier. The term of this Agreement shall begin on the date first written above and shall continue until the obligation of Purchaser to tender Royalty Payments hereunder has terminated with respect to both the Monthly Overriding Production Royalty and the Annual Overriding Production Royalty.
5. Preservation . If any court of competent jurisdiction should determine in an appropriate proceeding that the duration of the Royalty renders this reservation or conveyance illegal, void or unenforceable, then the interest herein reserved and conveyed shall be limited to a term equal to the longest permissible term that would not render this reservation or conveyance illegal, void, or unenforceable. Once both the Monthly Royalty Cap Monthl y and the Royalty Cap have been reached, Seller shall file a release or termination document reasonably satisfactory to Purchaser evidencing the termination of the Monthly Overriding Production Royalty and the Annual Overriding Production Royalty hereunder.
6. Payment Obligation . The Monthly Overriding Production Royalty shall be due and payable to Seller, without demand, on the twenty-fifth (25 th ) day of each calendar month for all Royalty Coal sold during the preceding calendar month (the “ Monthly Applicable Period ”). The Annual Overriding Production Royalty shall be due and payable to Seller, without demand, on the twenty-fifth (25 th ) day of each January for all Royalty Coal sold during the preceding calendar year with the first such payment, if


______________________
3 Note to Draft : Appropriate PPI under review.


3

applicable, being due January 25, 2019 (the “ Annual Applicable Period ”). If payments are not timely made, interest will become due at a rate of 1.5% per month from the due date up to and including the date payment is received. Notwithstanding any provision pursuant to the Agreement, the Purchase Agreement or any other ancillary agreements, it is agreed and understood that under no circumstances shall the amounts determined pursuant to the preceding clause in respect of any Monthly Applicable Period or Annual Applicable Period exceed 100% of “gross income from mining” during such Monthly Applicable Period or the Annual Applicable Period (as determined for federal income tax purposes under Section 613(c) of the Code).
7. Method of Tendering Royalty Payments . Purchaser shall tender timely payment to Seller per the foregoing provisions by check or ACH transfer using this information (or as otherwise directed by Seller in writing):
Checks should be directed as follows :
USPS Mail Format:
 
EXPRESS Mail Format:
Contura Energy, LLC
 
Bank of America Lockbox Services
P.O. Box 74008536
 
Contura Energy, LLC 8536
Chicago, IL 60674-8536
 
540 W. Madison, 4th Floor
 
 
Chicago, IL 60661
 
 
 
ACH transfers should be directed to :
Bank Name:
 
Bank of America
Account Name:
 
Contura Energy LLC (Note: Please reference “ For further credit to: Contura Wyoming Land, LLC ”)
Account #:
 
8188395562
ABA Number:
 
071 000 039
SWIFT:
 
BOFAUS3N
At the time payment is sent, Purchaser shall deliver to Seller at its notice address set forth in the Purchase Agreement to the attention of _________________ (a) written notice of the payment amount, payment date and wire transfer or other payment method information, and (b) a royalty report (in form satisfactory to Seller) showing for the preceding month (in the case of the Monthly Overriding Production Royalty) or year (in the case of the Annual Overriding Production Royalty) the quantity of Royalty Coal sold during such period, the Federal and State royalty reports Purchaser filed for the same period, and such other information as shall reasonably be requested by Seller. Weights shall be determined by use of certified scales, tested and corrected at least once each year, or if certified scales are not available, then by procedures standard in the coal industry that are mutually acceptable to Purchaser and Seller.
8. Royalty Runs with the Land; Recording . The Royalty, including all obligations for payment and other obligations of Purchaser herein, shall be considered an interest in real estate and shall be an interest which runs with the Property and each parcel and piece of the Property, and shall be binding on Purchaser, its successors and

4

assigns, and all subsequent owners of and successors in title to the Property. Purchaser’s successors and assigns shall include, without limitation, any of the following permitted by the terms of this Agreement: (a) any successor by sale of equity interests, merger or other entity restructure, (b) any grantee as debtor or debtor-in-possession in any bankruptcy or insolvency proceeding, and (c) any assignees, transferees, purchasers, lessees, sublessees, and other persons acquiring any interest in this Agreement, any of the Real Property Agreements or any of the Property (any of the foregoing, a “ Successor ”). All Successors shall take such interests subject to the Royalty, and shall be charged with the Royalty payment obligations provided herein. Purchaser agrees to notify each such Successor of this Agreement and its obligations hereunder, and to obtain and provide to Seller a written acknowledgement and assumption thereof, duly executed by such Successor, prior to any Successor’s acquisition of any interest in the Property. Purchaser and Seller agree to execute a “Memorandum of Royalty Agreement” substantially in the form of Appendix 1 attached hereto, following execution of which Seller is permitted to have the same recorded in the Recording Section of the County Clerk of Campbell County, Wyoming.
9. Nature of Royalty .
(a) Purchaser and Seller intend that the Royalty (including the payment obligations set forth above) shall constitute a real property interest in the Property, overriding and prior to all other present or future interests in the Property.
(b)      It is the intention of the parties that the Royalty reserved by and conveyed to Seller hereby shall, in the event of the sale by foreclosure or otherwise of the rights and interests in the Property other than the Royalty, remain in place and such sale shall not result in acceleration of the obligation to pay the Royalty or otherwise affect the rights of Seller hereunder.
10. Agreement Not to Challenge; Modification .
(a)      Purchaser, for itself and its Successors, agrees that it will not, directly or indirectly, cause any challenge to the validity, scope or enforceability of all or any portion of this Agreement, to the Royalty created by this Agreement, or to the other rights and benefits of Seller created herein. If the validity, scope or enforceability of all or any portion of this Agreement, the Royalty created by this Agreement, or the other rights and benefits of Seller created herein is rendered void, invalid or unenforceable as a result of a challenge by any Person for any reason, based on any legal or equitable theory, it is the intent of Purchaser and Seller that only the offending provisions of this Agreement shall be adjusted to make them valid and enforceable rather than voided, if possible, in order to achieve the intent of Purchaser and Seller. In any such event, all other provisions of this Agreement shall be deemed valid and enforceable to the fullest extent possible.
(b)      Any decision rendering all or a portion of this Agreement void, invalid or unenforceable as to some, but not all, of the Property shall not serve as to render this Agreement void, invalid or unenforceable as to any other portion of the Property.

5

(c)      During the pendency of any dispute brought by any Person regarding the validity, scope or enforceability of all or any portion of this Agreement, the Royalty created by this Agreement, or the other rights and benefits of Seller created herein, Purchaser shall continue to pay the Royalty to Seller as provided in this Agreement, unless directed otherwise by order of a court of competent jurisdiction.
11. Records . Purchaser shall keep true and accurate records of all coal mined from the Property and sold during the term hereof, together with any and all information required under this Agreement or reasonably requested by Seller. Seller and its officers, agents, employees, engineers, accountants, attorneys and consultants shall have the right, but not the obligation, to (a) audit, inspect and copy at all reasonable times the books and records of Purchaser or its Successors, and (b) with reasonable notice to Purchaser or its Successors, go upon and inspect the Property and Purchaser’s or its Successors’, or their respective agent’s or contractor’s, operations thereon or related thereto to confirm compliance with the terms of this Agreement. All books, records, data and analyses concerning Purchaser’s or its Successors’ operations on the Property shall be maintained for a period of at least three (3) years after the mining and sale of the applicable coal. For the same period, Purchaser also shall retain and make available to Seller for inspection all documents and records pertaining to Federal and State royalty audits.
12. Taxes . Purchaser shall pay, when and as due, any and all taxes, fees, and assessments imposed by any governmental authority with respect to the Property, without charge, cost or expense to Seller, including ad valorem taxes, severance taxes, and unmined minerals taxes, and shall, upon request of Seller, provide Seller copies of all tax returns prepared in connection with such ad valorem, severance, and unmined mineral taxes.
13. Default and Remedies . In the event of any failure by Purchaser or its Successors to pay the Royalty as and when due, or to perform any other covenant or obligation of Purchaser hereunder, Seller shall be entitled to all the rights and remedies available to it at law, in equity, by contract, or otherwise, and may bring proceedings in equity or at law or take such steps as it may deem advisable to protect and enforce its rights hereunder.
14. Conflict . This Agreement is subject to all the terms and conditions of the Purchase Agreement. Notwithstanding the foregoing, if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of the Purchase Agreement, the terms and conditions of this Agreement shall control.
15. Governing Law . This Agreement shall be governed by and construed according to the laws of the State of Wyoming without regard to or application of its conflict of laws rules.
16. Consent to Jurisdiction . Each party irrevocably submits to the jurisdiction of the state and federal courts with territorial jurisdiction over Campbell County, Wyoming for the purposes of any Proceeding arising out of this Agreement or any transaction contemplated hereby. Each party agrees to commence any such Proceeding either in a

6

United States District Court for the District of Wyoming, or if such Proceeding may not be brought in such court for jurisdictional reasons, in a state court located in Campbell County, Wyoming. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section 13.1 of the Purchase Agreement shall be effective service of process for any Proceeding in the said courts with respect to any matters to which it has submitted to jurisdiction hereunder. Each party irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of this Agreement or the transactions contemplated hereby in said courts, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum.
17. Counterparts . This Agreement may be executed in counterparts (including by means of facsimile or e-mail signature pages), each of which shall be deemed an original, but all of which together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto. The executed Agreement together with any attachments hereto may be photocopied and stored on computer tapes, disks and similar electronic storage media (“ Imaged Document ”). If an Imaged Document is introduced as evidence in any judicial, arbitration, mediation or administrative proceeding, it shall be considered as admissible evidence, provided that such Imaged Document bears the signatures of the Parties and further provided that there is no evidence that such Imaged Document has been manipulated or otherwise altered in any way. Neither Party shall object to the admissibility of the Imaged Document on the basis that such was not originated or maintained in documentary form under either the hearsay rule, the best evidence rule, or other rule of evidence. The electronic transmission of any signed original counterpart of this Agreement shall be deemed to be the delivery of an original counterpart of this Agreement; provided , however , each party shall deliver to the other party its original executed counterpart.
18. Severability . If any provision of this Agreement or its application will be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of all other applications of that provision, and of all other provisions and applications hereof, will not in any way be affected or impaired. If any court shall determine that any provision of this Agreement is in any way unenforceable, such provision shall be reduced to whatever extent is necessary to make such provision enforceable.
19. Fees and Expenses . Purchaser agrees to pay Seller, on demand, all fees, costs, and expenses (including reasonable attorneys’ fees and expenses and fees and expenses of other professionals) that Seller may incur or pay in enforcing or protecting Seller’s rights hereunder.
20. Transfer; Assignment . The parties hereto acknowledge and agree that a major part of the consideration for entering into this Agreement is the belief of Seller that Purchaser has (a) the expertise and ability to develop, operate and maintain a mining operation on the Property sufficient to adequately mine all of the mineable and merchantable coal therein and operate the Mines, in each case, in a good and

7

workmanlike manner, (b) the necessary financial resources and coal marketing ability, and (c) the reputation for honesty and integrity and the standing in the coal mining industry as an expert, reliable and dependable producer, processer and marketer of coal. In light of these facts, Purchaser agrees that neither Purchaser nor any of its Successors shall sell, lease, sublease, license, assign, convey, surrender, release, terminate, encumber or otherwise transfer, directly or indirectly, in whole or in part, whether by contract, operation of law or otherwise (collectively, “ Transfer ”), this Agreement, the Real Property Agreements, the Property or any rights, obligations or interest herein or therein without Seller’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, but may be withheld, conditioned or delayed based upon the financial viability, the coal marketing ability, the reputation, expertise, reliability or dependability, or the mining or processing capabilities of the proposed assignee or transferee, among other reasonable bases for withholding, conditioning or delaying consent; provided, however, that Purchaser and its Successors may assign this Agreement or its rights hereunder, in whole or in part, to any Affiliate without Seller’s consent, but the assigning or transferring party shall remain liable for the obligations and liabilities arising under this Agreement. The Seller may assign the Royalty, this Agreement and all or any rights or obligations hereunder to any other Person without any consent from Purchaser or its Successors, but shall provide Purchaser with written notice of any such assignment.
21. Entire Agreement . All prior negotiations and agreements by and among the parties hereto with respect to the subject matter hereof are superseded by this Agreement, the Purchase Agreement, and the other Ancillary Agreements, and there are no representations, warranties, understandings or agreements with respect to the subject matter hereof other than those expressly set forth in this Agreement, the Purchase Agreement, and the other Ancillary Agreements.
22. Headings . Section headings are not to be considered part of this Agreement, are solely for convenience of reference, and shall not affect the meaning or interpretation of this Agreement or any provision in it.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

8


IN WITNESS WHEREOF, the parties hereto have caused their authorized representatives to execute this Agreement as of the date set forth in the notary blocks below to be effective as of the date first set forth above.
SELLER:
 
CONTURA COAL WEST, LLC
 
 
 
 
 
 
By:
 
 
 
Name:
 
 
 
Title:
 
 
 
 
 
 
 
CONTURA WYOMING LAND, LLC
 
 
 
 
 
 
By:
 
 
 
Name:
 
 
 
Title:
 
 
 
 
 
PURCHASER :
 
BLACKJEWEL L.L.C.
 
 
 
 
 
 
By:
 
 
 
Name:
 
 
 
Title:
 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

9
Signature Page to Royalty Agreement



STATE OF
 
)
COUNTY OF
 
)
The foregoing instrument was sworn to and acknowledged before me on _____________, 2017, by ______________________________, as _________________ of Contura Coal West, LLC, a Delaware limited liability company, on behalf of said company.

 
Notary Public
 
My Commission Expires:
 

STATE OF
 
)
COUNTY OF
 
)
The foregoing instrument was sworn to and acknowledged before me on _____________, 2017, by ______________________________, as _________________ of Contura Wyoming Land, LLC, a Delaware limited liability company, on behalf of said company.


 
Notary Public
 
My Commission Expires:
 

The foregoing instrument was sworn to and acknowledged before me on _____________, 2017, by Jeffery A. Hoops, as [President & CEO] of Blackjewel L.L.C., a Delaware limited liability company, on behalf of said company.

 
Notary Public
 
My Commission Expires:
 

10
Signature Page to Royalty Agreement


EXHIBIT A4
Real Property Agreements
Current Lessor/ Sublessor/
Other
Current Lessee/ Sublessee/
Other
Execution Date
Location (County, State)
Lease Book/
Page or Instrument #
Description
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 















______________________
4 Note to Draft : This Exhibit will list the Coal Leases and the special warranty deeds described on Schedule 1.1(c) (Owned Real Property) that are recorded in Campbell County, Wyoming.




    
Exhibit 2.5
EXECUTION VERSION


ASSET PURCHASE AGREEMENT



dated as of


July 26, 2016


among


CONTURA ENERGY, INC.,


ALPHA NATURAL RESOURCES, INC.,


THE SUBSIDIARIES OF ALPHA NATURAL RESOURCES, INC. LISTED ON SCHEDULE A HERETO,


ANR, INC.


and


ALPHA NATURAL RESOURCES, INC.,
AS SELLERS’ REPRESENTATIVE



1


TABLE OF CONTENTS
_______________
PAGE
ARTICLE 1
Definitions
Section 1.01. Definitions
3

Section 1.02. Other Definitional and Interpretative Provisions
19

Section 1.03. CoreCo and NonCoreCo
20

ARTICLE 2
Purchase and Sale
Section 2.01. Purchase and Sale
20

Section 2.02. Excluded Assets
25

Section 2.03. Assumed Liabilities
26

Section 2.04. Excluded Liabilities
28

Section 2.05. Assignment of Assumed Contracts and Rights; Cure Amounts
30

Section 2.06. Purchase Price; Allocation of Purchase Price
33

Section 2.07. Coal Inventory
34

Section 2.08. Closing
35

Section 2.09. Delivery of Purchased Assets and Procedure at Closing
35

Section 2.10. Buyer’s Deliveries at Closing
37

Section 2.11. Purchase Price Adjustment
38

Section 2.12. Withholding
40

Section 2.13. Simultaneous Transactions
40

Section 2.14. Supplemental Assignments
40

Section 2.15. Designated Buyers
40

ARTICLE 3
Representations and Warranties of the Sellers and ReorgCo
Section 3.01. Corporate Existence and Power
42

Section 3.02. Corporate Authorization
42

Section 3.03. Governmental Authorization
42

Section 3.04. Noncontravention
42

Section 3.05. Owned Real Property
43

Section 3.06. Leases and Leased Real Property
44

Section 3.07. Licenses and Permits
46

Section 3.08. Environmental
47

Section 3.09. Title to the Purchased Assets
48

Section 3.10. Contracts
49

Section 3.11. Financial Statements
51

Section 3.12. Ordinary Course of Business
52

Section 3.13. Buildings and Improvements
52


i


Section 3.14. Equipment and Fixed Assets
52

Section 3.15. Insurance
53

Section 3.16. Litigation, Investigations and Claims
53

Section 3.17. Laws and Regulations
54

Section 3.18. Tax Matters
54

Section 3.19. Intellectual Property
55

Section 3.20. Finders’ Fees
56

Section 3.21. FCPA Matters
56

Section 3.22. ReorgCo
56

ARTICLE 4
Representations and Warranties of Buyer
Section 4.01. Corporate Existence and Power
56

Section 4.02. Corporate Authorization
56

Section 4.03. Governmental Authorization
57

Section 4.04. Noncontravention
57

Section 4.05. Adequate Assurances Regarding Assumed Contracts
57

Section 4.06. Litigation
58

Section 4.07. Finders’ Fees
58

Section 4.08. Assurances Regarding Permits
58

Section 4.09. Buyer Securities
58

Section 4.10. Inspections; No Other Representations
59

ARTICLE 5
Covenants of the Sellers and NonCoreCo
Section 5.01. Conduct of the Purchased Business
59

Section 5.02. No Changes in Business
60

Section 5.03. Access to Information
62

Section 5.04. Names; Retained Seller IP
63

Section 5.05. Records of Purchased Business
64

Section 5.06. Segregation and Removal of Excluded Assets
65

Section 5.07. Release; Acknowledgements
65

Section 5.08. Confirmation Order
66

Section 5.09. Additional Bankruptcy Matters
66

Section 5.10. Payment of Cure Costs
67

Section 5.11. Cooperation if Buyer is to be a Public Company
67

Section 5.12. Insurance
67

Section 5.13. Restructuring Steps
67

ARTICLE 6
Covenants of Buyer and CoreCo
Section 6.01. Access
69

Section 6.02. Bankruptcy Actions
69


ii


Section 6.03. Avoidance Actions
69

Section 6.04. Buyer Common Stock Redemption
70

ARTICLE 7
Covenants of Buyer, the Sellers, CoreCo and NonCoreCo
Section 7.01. Further Assurance
70

Section 7.02. Certain Filings
71

Section 7.03. Transferred Permit/License and Surety Bond Matters
72

Section 7.04. Public Announcements
75

Section 7.05. WARN Act
75

Section 7.06. Notification of Certain Events
76

Section 7.07. Bankruptcy Court Approval
76

Section 7.08. Confidentiality
76

Section 7.09. Certain Payments or Instruments Received from Third Parties
77

Section 7.10. Consents and Approvals
78

Section 7.11. Transaction Documents
78

Section 7.12. Nicholas Complex
78

Section 7.13. Cooperation Regarding Licenses and Worker’s Compensation
82

ARTICLE 8
Tax Matters
Section 8.01. Tax Cooperation; Responsibility for Taxes; FIRPTA
83

ARTICLE 9
Employee Matters
Section 9.01. Representations and Warranties
84

Section 9.02. Covenants
85

Section 9.03. No Third Party Beneficiaries
88

ARTICLE 10
Conditions to Closing
Section 10.01. Conditions to Obligations of Buyer and the Sellers
88

Section 10.02. Conditions to Obligation of Buyer
89

Section 10.03. Conditions to Obligation of the Sellers
92

Section 10.04. Frustration of Closing Conditions
93

ARTICLE 11
Termination
Section 11.01. Grounds for Termination
93

Section 11.02. Effect of Termination
95

ARTICLE 12
Miscellaneous
Section 12.01. Notices
95

Section 12.02. Survival
97

Section 12.03. Amendments and Waivers
97


iii


Section 12.04. Expenses
97

Section 12.05. Successors and Assigns
97

Section 12.06. Governing Law
98

Section 12.07. Jurisdiction
98

Section 12.08. WAIVER OF JURY TRIAL
99

Section 12.09. Counterparts; Effectiveness; Third Party Beneficiaries
99

Section 12.10. Entire Agreement
99

Section 12.11. Bulk Sales Laws
99

Section 12.12. Severability
99

Section 12.13. Disclosure Schedules
99

Section 12.14. Specific Performance
100

Section 12.15. Sellers’ Representative
100

Section 12.16. Non-Recourse
101


SCHEDULES
 
 
 
Schedule ‎1.01(a)(i)
Knowledge of Buyer
Schedule ‎1.01(a)(ii)
Knowledge of Sellers
Schedule ‎1.01(c)
Permitted Encumbrances
Schedule ‎1.01(d)
Scheduled Bonding
Schedule ‎2.01(g)
Assumed Contracts
Schedule ‎2.01(m)
Purchased Intellectual Property
Schedule ‎2.01(n)
Avoidance Actions
Schedule ‎2.01(r)
Other Purchased Assets
Schedule ‎2.02(k)
Specifically Excluded Assets
Schedule ‎2.02(l)
Excluded Leases
Schedule ‎2.03(g)
Assumed Liabilities Under Specified Consent Decrees
Schedule ‎3.04
Sellers Noncontravention
Schedule ‎3.05(a)
Owned Real Property
Schedule ‎3.05(d)
Owned Real Property Notices
Schedule ‎3.05(f)
Owned Real Property Proceedings
Schedule ‎3.05(h)
Owned Real Property Rights of First Refusal
Schedule ‎3.06(a)(i)
Leases and Leased Real Property
Schedule ‎3.06(a)(ii)
Lease Applications
Schedule ‎3.06(a)(iii)
Prepaid Royalties and Un-recouped Minimum Royalties
Schedule ‎3.06(c)
Leased Real Property Notices
Schedule ‎3.07(a)
Transferred Permits/Licenses
Schedule ‎3.07(c)
Overlapping Transferred Permits/Licenses
Schedule ‎3.07(d)
Other Bonds and Sources of Collateral
Schedule ‎3.08(a)
Environmental Matters
Schedule ‎3.08(c)
Additional Environmental Matters
Schedule ‎3.08(d)
Consent Decrees
Schedule ‎3.09(d)
Alpha Natural Resources Equity and Indebtedness

iv


Schedule ‎3.10
Material Contracts
Schedule ‎3.11(a)
Certain Financial Information
Schedule ‎3.11(b)
Working Capital Target
Schedule ‎3.12
Ordinary Course of Business
Schedule ‎3.13
Buildings and Improvements
Schedule ‎3.15
Insurance Policies
Schedule ‎3.16(a)
Litigation
Schedule ‎3.16(b)
Actions
Schedule ‎3.17
Laws and Regulations
Schedule 3.18(b)
Tax Claims
Schedule ‎4.03
Government Authorizations
Schedule ‎4.04
Buyer Noncontravention
Schedule ‎5.02
No Changes to Business
Schedule ‎7.13
Material Licenses
Schedule ‎9.01
Employee Matters
Schedule ‎9.01(a)
Business Employees
Schedule ‎9.01(b)
Certain Labor Matters
Schedule ‎9.01(c)
Certain Employment Matters
Schedule ‎9.01(d)
Warn Act Violations
Schedule 9.01(f)
Alpha Natural Resources Plans
Schedule ‎10.02(g)
Certain Contracts
 
 
EXHIBITS
 
 
 
Exhibit A
Alpha Coal West Complex
Exhibit B
Cumberland Complex
Exhibit C
Emerald Complex
Exhibit D
Freeport Reserves
Exhibit E
McClure Complex
Exhibit F
Nicholas Complex
Exhibit G
PLR Complex
Exhibit H
Sewickley Reserves
Exhibit I
Toms Creek Complex
Exhibit J
Working Capital Principles
Exhibit K
Form of Buyer Warrant
Exhibit L
Form of Buyer Takeback Paper
Exhibit M
Form of GUC Distribution Note
 
 
 
 
Schedule A
Subsidiaries
Schedule B
Restructuring Steps


v


ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of July 26, 2016 (the “ Effective Date ”), by and among Contura Energy, Inc., a Delaware corporation (“ Buyer ”), Alpha Natural Resources, Inc., a Delaware corporation (“ Alpha Natural Resources ”), the Subsidiaries (as hereinafter defined) of Alpha Natural Resources set forth on Schedule A (collectively, the “ ANR Subsidiaries ”, and together with Alpha Natural Resources, the “ Sellers ”), Alpha Natural Resources, as Sellers’ Representative (“ Sellers’ Representative ”), and ANR, Inc., a Delaware corporation (“ ReorgCo ”). The Sellers, Buyer (and any Designated Buyers), Sellers’ Representative and ReorgCo are referred to herein individually as a “ Party ” and collectively as the “ Parties ”.
W I T N E S S E T H :
WHEREAS, Alpha Natural Resources and its Subsidiaries conduct a business that mines, processes, markets and sells coal through mining complexes located primarily in Northern and Central Appalachia and two Powder River Basin mines in Wyoming;
WHEREAS, on August 3, 2015 (the “ Petition Date ”), Alpha Natural Resources and certain of its wholly-owned Subsidiaries filed voluntary petitions for relief commencing cases under chapter 11 of the Bankruptcy Code (as hereinafter defined) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”);
WHEREAS, Buyer and/or the Designated Buyers (as hereinafter defined) desire to purchase certain assets and assume certain liabilities of the Sellers, and the Sellers desire to sell certain assets and transfer certain liabilities of the Sellers, upon the terms and subject to the conditions hereinafter set forth;
WHEREAS, upon the terms and conditions set forth herein, the Parties intend to effectuate the transactions contemplated by this Agreement pursuant to Sections 105, 363, 365 and 1123(a)(5)(D) of the Bankruptcy Code;
WHEREAS, the Sellers have filed the Plan of Reorganization (as hereinafter defined) with the Bankruptcy Court, which contemplates the release by the lenders under the Credit Agreement (as hereinafter defined) of $325 million of indebtedness under the Credit Agreement (the “ Credit Release ”) in exchange for the consummation of the transactions contemplated by the Plan of Reorganization, including the transactions contemplated by this Agreement;
WHEREAS, prior to the Closing (as hereinafter defined), Alpha Natural Resources, the ANR Subsidiaries and ReorgCo will consummate steps 1 ‑ 16 of the transactions set forth on Schedule B (the “ Pre-Closing Restructuring Steps ”);

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WHEREAS, as part of the Pre-Closing Restructuring Steps, on the Closing Date (as hereinafter defined) and prior to the Closing, the ANR Subsidiaries will transfer to Alpha Natural Resources, and Alpha Natural Resources will accept and assume, all Purchased Assets (as hereinafter defined) and Assumed Liabilities (as hereinafter defined) held by the ANR Subsidiaries (the “ Subsidiary Transfers ”);
WHEREAS, as part of the Pre-Closing Restructuring Steps, on the Closing Date and prior to the Closing, but after consummation of the Subsidiary Transfers, Alpha Natural Resources will transfer to ReorgCo, and ReorgCo will accept and assume, (i) all assets and properties of Alpha Natural Resources (including, for the avoidance of doubt, all equity interests in the Subsidiaries of Alpha Natural Resources), other than the Purchased Assets and Alpha Natural Resources’ rights under this Agreement (except as otherwise provided herein), and (ii) all Liabilities of Alpha Natural Resources, other than the Assumed Liabilities and Alpha Natural Resources’ Liabilities arising under this Agreement (except as otherwise provided herein and subject to the discharge under section 1141 of the Bankruptcy Code and the terms of the Plan of Reorganization and the Confirmation Order, as hereinafter defined) (clauses (i) and (ii), the “ ReorgCo Transfers ”);
WHEREAS, after the Closing, Alpha Natural Resources, the ANR Subsidiaries and ReorgCo will consummate steps 18 and 19 of the transactions set forth on Schedule B (the “ Post-Closing Restructuring Steps ” and, together with the Pre-Closing Restructuring Steps, the “ Restructuring Steps ”); and
WHEREAS, the execution and delivery of this Agreement and the Sellers’ ability to consummate the transactions set forth in this Agreement are subject, among other things, to the entry of the Confirmation Order (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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ARTICLE 1
DEFINITIONS
Section 1.01.      Definitions. As used herein, the following terms have the following meanings:
“ 15 Day Inventory Supply ” means, with respect to a Mining Complex, an amount of coal inventory (in Tons) equal to (x) the Average Daily Coal Sales for such Mining Complex multiplied by (y) 15.
“ Action ” means any claim, action, cause of action, demand, lawsuit, arbitration, formal inquiry, audit, citation, summons, subpoena, notice of violation, proceeding or litigation, whether civil, criminal, administrative, regulatory, at law, in equity or otherwise.
“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings. Upon consummation of the Restructuring Steps, (i) with respect to Sellers, “Affiliate” includes ReorgCo Parent and ReorgCo and (ii) with respect to ReorgCo Parent and ReorgCo, “Affiliate” includes Sellers.
“ Alpha Coal West Complex ” means the mining complex commonly referred to as “Alpha Coal West” located primarily in Campbell county, Wyoming as set forth on the map attached as Exhibit A .
“ Alpha Natural Resources 401(k) Plan ” means the Alpha Natural Resources, LLC and Affiliates 401(k) Retirement Savings Plan and the Alpha Coal West 401(k) Retirement Savings Plan.
“ Alternative Transaction ” means (i) the filing of a plan of reorganization contemplating the sale or retention of all or any portion of the Purchased Assets that is inconsistent with the terms of this Agreement or (ii) a sale, lease or other disposition directly or indirectly by merger, consolidation, tender offer, share exchange or otherwise to one or more third parties of all or any portion of the Purchased Assets.
“ Applicable Law ” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling, reporting or licensing requirement or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person or any of its assets,

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Liabilities or business, in each case, as amended, unless expressly specified otherwise.
“ Auditor ” means a recognizable, reputable and impartial certified public accounting firm that is mutually acceptable to Buyer and Sellers’ Representative.
“ Average Daily Coal Sales ” means, with respect to a Mining Complex, an amount of coal inventory (in Tons) equal to (x) the total volume of coal sales (in Tons) for such Mining Complex for the nine consecutive calendar month period ending on the last day of the last full calendar month immediately prior to the Closing Date, divided by (y) the total number of calendar days in such nine consecutive calendar month period.
“ Avoidance Action ” means any avoidance, preference or recovery, claim, action or proceeding arising under chapter 5 of the Bankruptcy Code or under any similar state or federal law, to the extent not waived pursuant to the Plan of Reorganization or the Global Settlement Term Sheet.
“ AVS ” means the Applicant Violator System established by the Office of Surface Mining, Department of the Interior, pursuant to the Federal Surface Mining, Control and Reclamation Act.
“ Bankruptcy Case ” means the cases, as jointly administered, commenced by the Sellers under chapter 11 of the Bankruptcy Code, styled In re: Alpha Natural Resources Inc., et al. , Case No. 15-33896 (KRH) and pending before the Bankruptcy Court.
“ Bankruptcy Code ” means title 11 of the United States Code, sections 101, et seq .
“ Bidding Procedures ” means the Bidding Procedures (as defined in the Bidding Procedures Order) approved by the Bidding Procedures Order, together with such changes therein, if any, as shall have been made in accordance with the Bidding Procedures Order.
“ Bidding Procedures Order ” means that certain order entered by the Bankruptcy Court on March 11, 2016 (Docket No. 1754), approving the Bidding Procedures, as such order may be amended, supplemented or modified from time to time.
“ Black Lung Benefits Act ” means the Black Lung Benefits Act, title 30 of the United States Code, sections 901, et seq., the Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978), the Black Lung Benefits Amendments of 1981, Pub. L. No. 97-119, 95 Stat. 1643, the Black Lung Consolidation of Administrative Responsibility Act, Pub. L. No. 107 275, 116

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Stat. 1925 and Section 1556 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1556, 124 Stat. 119.

“ Black Lung Liabilities ” means any liability or benefit obligations related to black lung claims and benefits under the Black Lung Benefits Act, any similar state or local law, and occupational pneumoconiosis, silicosis or other lung disease liabilities and benefits arising under Applicable Law.
“ Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close.
“ Closing Date ” means the date of the Closing.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Confirmation Order ” means an order entered by the Bankruptcy Court confirming the Plan of Reorganization and approving the Restructuring Transactions (as such term is defined in the Plan of Reorganization) and the transactions described in this Agreement and including provisions consistent with the form of order filed with the Bankruptcy Court on March 11, 2016 (Docket No. 1704 (Ex. H)) that is in form and substance acceptable to the Sellers, Buyer and the Required Lenders (as defined below).
“ Continued Tax Group ” means any tax group of which Alpha Natural Resources is the parent prior to Closing and Buyer is the parent after Closing.
“ Contract ” means any note, bond, mortgage, indenture, agreement, lease, sublease, license, sublicense, contract, trust, instrument, arrangement, guarantee, purchase order or other commitment, obligation or understanding, whether oral or written, that is legally binding.
“ Contracts Assignment and Assumption Agreements ” means the Assignment and Assumption Agreements for the Assumed Contracts, substantially in a form to be mutually agreed between the Parties in accordance with ‎Section 7.11.
“ Contura CBAs ” means (i) that certain 2016 Wage Agreement between Dickenson-Russell Contura, LLC and the UMWA; (ii) that certain Coal Wage Agreement of 2016 between Cumberland Contura, LLC and the UMWA, (iii) that certain Coal Wage Agreement of 2016 between Emerald Contura, LLC and the UMWA and (iv) that certain Coal Wage Agreement of 2016 between Power Mountain Contura, LLC and the UMWA.
“ Credit Agreement ” means that certain Fifth Amended and Restated Credit Agreement dated as of September 24, 2014 by and among Alpha Natural

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Resources, as the borrower, the lenders party thereto, the banks party thereto, Citicorp North America, Inc., as first lien agent, administrative agent and collateral agent and Citigroup Global Markets Inc., as sole lead arranger and sole book manager (as the same may be and has been amended, amended and restated, supplemented, waived and/or otherwise modified from time to time).
“ Cumberland Complex ” means the mining complex commonly referred to as “Cumberland” located primarily in Greene County, Pennsylvania, as set forth on the map attached as Exhibit B .
“ Cure Notice ” has the meaning ascribed to such term in the Bidding Procedures and includes any similar notice given in connection with the Plan of Reorganization.
“ Data Room ” means the Sellers’ virtual data room established at services.intralinks.com in connection with the transactions contemplated by this Agreement.
“ Disclosure Schedule ” means the disclosure schedule, dated the date hereof, regarding this Agreement that has been provided by the Sellers to Buyer on the date hereof, as may be amended in accordance with the terms of this Agreement.
“ DIP Credit Agreement ” means, collectively, (i) that certain Superpriority Secured Debtor-in-Possession Credit Agreement dated as of August 6, 2015 among Alpha Natural Resources, Inc., as borrower, certain affiliates thereof party thereto, as subsidiary guarantors, Citibank, N.A., as administrative agent, Citigroup Global Markets Inc., as sole lead arranger and book manager, and the lenders and issuing banks party thereto and (ii) that certain Superpriority Secured Second Out Debtor-In-Possession Credit Agreement dated as of September 18, 2015 among Alpha Natural Resources, Inc., as borrower, certain affiliates thereof party thereto, as subsidiary guarantors, Citicorp North America, Inc., as administrative agent, Citigroup Global Markets Inc., as sole lead arranger and book manager, and the lenders and issuing banks party thereto (in each case, as amended, supplemented or modified from time to time).
“ Diminution Claim ” means the Pre-Petition Lenders’ claim for the diminution of the value of their interests in the Pre-Petition Collateral supported by the Senior Lender Adequate Protection Liens under the Final Order (i) Authorizing Debtors (a) to Obtain Post-Petition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 363(b), 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e) and (b) to Utilize Cash Collateral Pursuant to 11 U.S.C. § 363 and (ii) Granting Adequate Protection to Pre-Petition Secured Parties Pursuant to 11 U.S.C.§§ 361, 362, 363, 364 and 507(b) (Docket No. 465) (the “ Final DIP Order ”), calculated consistent with the Diminution Claim Allowance Settlement. Capitalized terms

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used in this definition but not otherwise defined in this Agreement shall have the meaning specified in the Final DIP Order.
“ Diminution Claim Allowance Settlement ” has the meaning ascribed to it in the Order (i) Approving Certain Settlements and (ii) Granting Related Relief (Docket No. 2440) and as described in Exhibit B thereto.
“ Dominion Terminal Associates ” means that certain partnership in which Alpha Terminal Company, LLC owns a 40.625% interest.
“ Emerald Complex ” means the mining complex commonly referred to as “Emerald” located primarily in Greene County, Pennsylvania, as set forth on the map attached as Exhibit C .
“ Encumbrance ” means, with respect to any property or asset, any title defect, mortgage, lien, pledge, charge, security interest, bailment (in the nature of a pledge or for purposes of security), deed of trust, grant of a power to confess judgment, conditional sales and title retention agreement (including any lease or license in the nature thereof), claim, easement, encroachment, right of way, charge, condition, option, right of first refusal or last negotiation, offer or refusal, equitable interest, restriction or encumbrance of any kind.
“ Environmental Law ” means any Applicable Law relating to: (i) the pollution, protection or reclamation of the environment, (ii) any spill, emission, release or disposal into the environment of, or human exposure to, any pollutant, contaminant or chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material or (iii) acid mine drainage.
“ ERISA ” means the Employee Retirement Income Security Act of 1974.
“ ERISA Affiliate ” of any entity means any other entity which, together with such entity, would be treated as a single employer under Section 414 of the Code.
“ Freeport Reserves ” means all of the Freeport seam coal and limited surface properties located in Greene County, Pennsylvania, as generally depicted on the map attached hereto as Exhibit D .
“ Fundamental Representations ” means the representations and warranties set forth in ‎Section 3.01, ‎Section 3.02, ‎Section 3.03, the second to last sentence of ‎Section 3.07(b), ‎Section 3.09(a), ‎Section 3.09(c), ‎Section 3.20, ‎Section 4.01, ‎Section 4.02, ‎Section 4.03, ‎Section 4.07 and the last sentence of Section ‎9.01(a).
“ GAAP ” means generally accepted accounting principles in the United States, consistently applied.

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“ General Assignments and Bills of Sales ” means the General Assignments and Bills of Sales for the Purchased Assets, in a form to be mutually agreed between the Parties in accordance with ‎Section 7.11.
“ Global Settlement Term Sheet ” means the term sheet attached as Exhibit A to the Stipulation and Agreed Order Regarding Process Related Terms of Plan Settlement Term Sheet , as so ordered by the Bankruptcy Court on May 24, 2016 (Docket No. 2497).
“ Governmental Authority ” means any transnational, domestic or foreign federal, state, local, provincial, municipal, special purpose, or other governmental or quasi-governmental authority or regulatory body, court, tribunal, arbitrating body, governmental department, commission, board, officer, self-regulating authority, Taxing Authority, bureau or agency, as well as any other instrumentality or entity designated to act for or on behalf of any of the foregoing.
“ Hazardous Material ” means any pollutant, contaminant or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material that in each case is regulated under any Environmental Law.
“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“ Indebtedness ” means, with respect to any Person, (i) all indebtedness for borrowed money; (ii) all indebtedness evidenced by notes, bonds, mortgage loans, term loans, debentures or other similar instruments; (iii) all obligations for the deferred purchase price of property or services (including any obligations relating to any earn-out or bonus payments, but excluding trade payables accrued in the ordinary course of business and included in the Final Working Capital Adjustment); (iv) all obligations under capitalized leases; (v) all guarantees or other commitments by which such Person assures a creditor against loss (including contingent reimbursement obligations regarding letters of credit) with respect to Indebtedness of another Person; (vi) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to acquired property; (vii) all obligations under commodity swap agreements, commodity cap agreements, interest rate cap agreements, interest rate swap agreements, foreign currency exchange agreements and other similar agreements; (viii) all guaranties of any of the foregoing; and (ix) all outstanding due and unpaid prepayment premiums, if any, and accrued interest, fees and expenses related to any of the items set forth in clauses (i) through (viii). For the avoidance of doubt, Indebtedness shall include any of the foregoing between Affiliates.
“ Intellectual Property Right ” means any trademark, service mark, trade name, trade dress, logo, domain name or URL, mask work, invention, patent, trade secret or other right in any proprietary business information (including data bases and data collections, pricing and cost information, business and marketing

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plans, and customer and supplier lists), copyright, right of publicity, know-how (including manufacturing and production processes and techniques, and research and development information), or any other intellectual property or similar proprietary industrial right of any kind or nature anywhere in the world (including any such rights in software), and including (i) any issuances, registrations or applications for registration of any of the foregoing, (ii) all goodwill associated with any of the foregoing, and (iii) all rights to sue or recover and retain damages and costs and attorneys’ fees for past, present and future infringement or misappropriation of any of the foregoing.
“ IP Assignment Agreements ” means the Intellectual Property Assignment and Transfer Agreements with respect to the Intellectual Property Rights included in the Purchased Assets, in a form to be mutually and reasonably agreed between the Parties in accordance with ‎Section 7.11.
“ Knowledge ” means (i) with respect to Buyer, to the knowledge of any of the officers of Buyer listed on Schedule 1.01(a)(i) , assuming reasonable inquiry and (ii) with respect to any Seller, to the knowledge of the officers of Sellers listed on Schedule 1.01(a)(ii) , assuming reasonable inquiry.
“ Lease Assignment and Assumption Agreements ” means the Lease Assignment and Assumption Agreements for the Assumed Leases and Purchased Leased Real Property owned by the Sellers or any of their Subsidiaries, in a form to be mutually agreed between the Parties in accordance with ‎Section 7.11.
“ Leased Real Property ” means all real property and other rights leased or subleased by any Seller pursuant to the Assumed Leases.
“ Leases ” means the real property leases and subleases to which any Seller or any of its Affiliates is a party which are listed on Schedule ‎3.06(a)(i) , together with any and all underground and surface coal reserves, natural gas reserves (excluding the PLR Complex), mineral rights, mining rights, surface rights, rights of way, easements, fixtures and improvements set forth in such leases and subleases.
“ Liabilities ” means all existing or future liabilities, debts, obligations, duties or adverse claims of every type and trade, whether matured or unmatured, fixed or contingent, absolute or contingent, known or unknown, accrued or unaccrued, liquidated or unliquidated, direct or indirect, or otherwise in respect of any and all matters or events, including those arising under Applicable Law, or imposed by any court or arbitrator of any kind, and those arising in connection with coal, natural gas or other products sold, Contracts, Leases, commitments or undertakings, including all liabilities arising out of or related to the sponsorship of, the responsibility for, contributions to, or any liability in connection with any employee plan maintained or contributed to by any Person. Without limiting the foregoing, Liabilities shall include any continuation coverage (including any

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penalties, excise taxes or interest resulting from the failure to provide continuation coverage) required by Applicable Law due to qualifying events, including continuing coverage for any of the Sellers’ employees terminated prior to the Closing Date or whose employment is terminated in connection with the transaction contemplated hereby, or who were not hired by Buyer or a Designated Buyer in connection with the transaction contemplated hereby, whether or not said Liabilities are reflected on the books of such Seller.
“ Loss(es) ” means all losses, Liabilities, obligations, damages, deficiencies, expenses, Actions, suits, proceedings, demands, assessments, interest, awards, penalties, fines, Taxes, costs and expenses of whatever kind (including reasonable attorneys’ fees, court costs, expert witness fees, transcript costs and other expenses of litigation, costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) and judgments (at law or in equity) of any nature.
“ Material Adverse Effect ” means any change, development, occurrence, circumstance or effect that, individually or in the aggregate, has had or would reasonably be expected to have, individually or in the aggregate with all other changes, developments, occurrences, circumstances or effects, a material adverse effect on the condition (financial or otherwise), assets, liabilities, business or results of operations of the Purchased Business, taken as a whole, excluding any change, development, occurrence, circumstance or effect resulting from (i) changes in GAAP or changes in the regulatory accounting requirements applicable to any industry in which the Purchased Business operates; (ii) changes in financial or securities markets or general economic or political conditions in the United States or any other country; (iii) changes (including changes of Applicable Law) in general conditions in the industry in which the Purchased Business operates; (iv) acts of war, sabotage or terrorism or natural disasters; (v) the announcement of the transactions contemplated by this Agreement or the Transaction Documents (provided that this clause (v) shall not apply to any representation or warranty that, by its terms, speaks specifically of the consequences arising out of the execution or performance of this Agreement or any of the Transaction Documents or the consummation of any of the transactions contemplated hereby or thereby); (vi) any action taken (or omitted to be taken) at the written request of Buyer; (vii) any failure by the Sellers or the Purchased Business to meet any projections or forecasts for any period occurring on or after the date hereof (provided that this clause (vii) shall not prevent a determination that any event, circumstance, effect or change underlying such failure to meet projections or forecasts has resulted in a Material Adverse Effect); (viii) the filing of the Bankruptcy Case and operations of the Purchased Business in bankruptcy or (ix) any action taken by Alpha Natural Resources or any of its Subsidiaries that is expressly required pursuant to this Agreement, in each case of clauses (i), (ii), (iii) and (iv), to the extent the Purchased Business is not materially

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disproportionately affected thereby as compared with other participants in the industry in which the Purchased Business operates.
“ McClure Complex ” means the mining complex commonly referred to as “McClure” located primarily in Dickerson county, Virginia as set forth on the map attached as Exhibit E .
“ Mining Complexes ” means, collectively, the Alpha Coal West Complex, the Cumberland Complex, the Emerald Complex, the McClure Complex, the Nicholas Complex and the Toms Creek Complex.
“ Minimum Coal Inventory ” means, with respect to a Mining Complex (other than the Alpha Coal West Complex), an amount of coal inventory, in Tons, equal to the lesser of (x) such location’s 15 Day Inventory Supply and (y) the maximum amount of coal inventory (in Tons) that can be stored at the available ground storage for such location.
“ Nicholas Complex ” means the deep mining and coal processing complex commonly referred to as “Nicholas” located primarily in Nicholas county, West Virginia but also partly in Clay county, West Virginia as set forth on the map attached as Exhibit F . For avoidance of doubt, Nicholas Complex does not mean or include (i) any surface coal mines or related mine drainage collection and treatment or erosion and sedimentation control facilities, or Permits related to any of the forgoing, (ii) any Owned Real Property, Assumed Leases or other third party leases on which any surface coal mines or related mine drainage collection and treatment or erosion and sedimentation control facilities are located, or Permits related to any of the forgoing. In each case (the case of clauses (i) and (ii)), all such surface coal mines or related mine drainage collection and treatment or erosion and sedimentation control facilities, and all such Owned Real Property, Assumed Leases or other third party leases, shall be an Excluded Asset or Excluded Liability.
“ Owned Intellectual Property Rights ” means all Intellectual Property Rights that are (i) owned by a Seller or any of its Affiliates and (ii) included in the Purchased Assets.
“ Owned Real Property ” means, subject to ‎Section 7.12, that real property that is owned by a Seller or any of its Affiliates and listed or required to be listed on Schedule ‎3.05(a) , together with all of such Seller’s or Affiliate’s right, title and interest in and to the following, as it relates to the real property listed or required to be listed on Schedule ‎3.05(a) and as used or held for use in the operation of the Purchased Business as conducted: (i) all buildings, structures and improvements located on such real property owned by such Seller or such Affiliate, (ii) all improvements, fixtures, mine infrastructure, preparation plant structures and improvements, loadout structures and improvements, rail sidings, or apparatus affixed to such real property owned by such Seller or such Affiliate, (iii) all rights of way, easements, if any, in or upon such real property owned by

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such Seller and all other rights and appurtenances belonging or in any way pertaining to such real property owned by such Seller or such Affiliate (including the right, title and interest of such Seller or such Affiliate in and to any coal reserves, natural gas reserves (excluding the PLR Complex), mineral rights, underground and surface coal and mining rights, natural gas drilling rights (including the rights for drilling coalbed methane, coal mine methane and coal gob gas, but excluding the PLR Complex) royalty rights, support rights and waivers, subsidence rights or water rights relating or appurtenant to such real property owned by such Seller or such Affiliate), (iv) all strips and gores and any land lying in the bed of any public road, highway or other access way, open or proposed, adjoining such real property owned by such Seller or such Affiliate and (v) any Leases affecting such real property owned by such Seller or such Affiliate, subject to any consents as may be required.
“ Permit Transfer Agreements ” means the Permit Transfer Agreements with respect to the Transferred Permits/Licenses dated as of the Closing Date between the applicable Sellers and Buyer in a form to be mutually agreed between the Parties in accordance with ‎Section 7.11.
“ Permitted Encumbrance ” means (i) Encumbrances that constitute Assumed Liabilities; (ii) statutory liens for Taxes (including real estate Taxes) and assessments that are not yet due and payable; (iii) landlords’, carriers’, warehousemen’s, mechanics’, suppliers’, materialmen’s or repairmen’s statutory liens, or other similar Encumbrances imposed by Applicable Law, that, in each case, arise in the ordinary course of business; (iv) easements, covenants, conditions, restrictions and other similar Encumbrances on real property that arise in the ordinary course of business and that do not materially detract from the value of the affected Purchased Real Property and do not materially interfere with the present or intended use of such Purchased Real Property; (v) the leasehold estate or any sublease, license or rights of occupancy in any Owned Real Property where a Seller is lessor and the lease is set forth in Schedule ‎3.06(a)(i) ; (vi) any Encumbrance or claim affecting any Owned Real Property that does not individually or in the aggregate interfere in any material respect with the present or intended use of, or materially detract from the value of, the Owned Real Property subject thereto; (vii) local, county, state and federal laws, ordinances or governmental regulations including Environmental Laws and regulations, local building and fire codes, and zoning, conservation or other land use regulations now or hereafter in effect relating to any Purchased Real Property; or (viii) those Encumbrances listed on Schedule 1.01(c) .
“ Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.

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“ Plan of Reorganization ” means the Debtors’ joint plan of reorganization filed with the Bankruptcy Court on June 2, 2016 (Docket No. 2594, Ex. A), as it may be amended, modified or supplemented, and including all exhibits thereto.
“ PLR Complex ” means the complex commonly referred to as “PLR” located primarily in Greene County, Pennsylvania as set forth on the map attached as Exhibit G consisting of natural gas and oil wells and reserves and the other “Purchased Assets” under the PLR Order, but excluding coal bed methane, coal mine methane and coal gob gas.
“ PLR Order ” means the Order of Bankruptcy Court dated May 26, 2016 (Docket Nos. 2550, 2551 and 2552) approving the Debtors’ sale of the assets of their natural gas business in Greene County, Pennsylvania.
“ Pre-Closing Tax Period ” means (i) any Tax period ending on or before the Closing Date and (ii) with respect to a Tax period that commences on or before but ends after the Closing Date, the portion of such period up to and including the Closing Date.
“ Pre-Petition Lenders ” means the lenders under or in connection with the Credit Agreement.
“ Purchased Business ” means the business, operations and ownership of the Sellers and their Affiliates (wherever the business, operations and assets are situated or conducted) related to (i) the Mining Complexes, the Freeport Reserves and/or the Sewickley Reserves and any other coal operations or reserves located in Pennsylvania, including the mining, processing, exploration, extraction, preparation, selling and shipping of coal and related operations, but excluding the Rostraver Reserves, (ii) the Sellers’ and their Affiliates’ interests in Dominion Terminal Associates and (iii) the other assets set forth on Schedule ‎2.01(s) . For the avoidance of doubt, the Purchased Business shall not include the business, operation and ownership of the PLR Complex.
“ Purchased Real Property ” means the Owned Real Property and the Purchased Leased Real Property.
“ ReorgCo Parent ” means Alpha Natural Resources Holdings, Inc.
“ ReorgCo Transfers Closing ” means the closing of the ReorgCo Transfers.
“ Representatives ” means, with respect to any Person, its officers, directors, employees, counsel, accountants, advisors, agents, consultants, stockholders, partners, members, controlling persons and other representatives of such Person.

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“ Required Lenders ” has the meaning set forth in the Credit Agreement.
“ Rostraver Reserves ” means that coal located in the Pittsburgh 8 seam of coal and the Freeport seam (sometimes referred to as the Upper Freeport seam) of coal located in Fayette and Westmoreland Counties, Pennsylvania and that surface located in Westmoreland County, Pennsylvania, owned by Rostraver Energy Company.
“ Running Right Trademark License ” means the Trademark License Agreement dated as of the Closing Date between Alpha Natural Resources and ReorgCo, in a form to be mutually agreed between the Parties in accordance with ‎Section 7.11, which (i) grants ReorgCo a personal, non-exclusive, royalty free, fully paid-up, non-sublicensable, non-transferable license to use the RUNNING RIGHT trademark (U.S. Reg. No. 3824028) in ReorgCo’s and its Affiliates’ business in a manner consistent with their use of such trademark prior to the date of this Agreement, and (ii) will be assigned by Alpha Natural Resources to Buyer along with the other Assumed Contracts in accordance with the terms and conditions of this Agreement.
“ Scheduled Bonding ” means all bonding requirements as set forth on Schedule 1.01(d) .
“ Seller Transaction Expenses ” means all unpaid fees, costs, charges, expenses, obligations, payments and awards that are incurred by the Sellers or their Affiliates in connection with, relating to or arising out of the preparation, negotiation, execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby, including all Taxes.
“ Sewickley Reserves ” means all of the Sewickley seam coal primarily located in Greene County, Pennsylvania, and marginally located in Marshall County, West Virginia, as generally depicted on the map attached hereto as Exhibit H .
“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof. With respect to ReorgCo Parent and ReorgCo, (x) upon and after consummation of the ReorgCo Transfers, “Subsidiary” will include the Subsidiaries of Alpha Natural

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Resources that are transferred to ReorgCo pursuant to the ReorgCo Transfers and (y) upon consummation of step 19 of the Post-Closing Restructuring Steps, “Subsidiary” will include Alpha Natural Resources.
“ Tax ” means (i) any and all taxes, charges, levies or other similar assessments or liabilities in the nature of a tax, including income, gross receipts, ad valorem, premium, value-added, net worth, capital stock, capital gains, documentary, recapture, alternative or add-on minimum, disability, estimated, registration, recording, excise, real property, personal property, extraction, unmined mineral, sales, use, license, lease, service, service use, transfer, withholding, employment, unemployment, insurance, social security, business license, business organization, environmental, workers compensation, payroll, employer health, profits, severance, stamp, occupation, windfall profits, customs, duties, gift, estate, franchise, production, inventory, unclaimed property, escheat and other taxes of any kind whatsoever imposed by a Governmental Authority, and any interest, fines, penalties, assessments or additions to tax imposed with respect to such items or any contest or dispute thereof or (ii) liability for the payment of any amounts of the type described in (i) as a result of being party to any agreement or any express or implied legal or contractual obligation to indemnify or otherwise assume or succeed to the liability of any other Person.
“ Taxing Authority ” means any Governmental Authority having or purporting to exercise jurisdiction with respect to any Tax.
“ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
“ Toms Creek Complex ” means the mining complex commonly referred to as “Toms Creek” located primarily in Wise county, Virginia as set forth on the map attached as Exhibit I .
“ Ton ” means 2,000 pounds.
“ Transaction Documents ” means, collectively, the Contracts Assignment and Assumption Agreements, the General Assignments and Bills of Sales, the IP Assignment Agreements, the Lease Assignment and Assumption Agreements, the Permit Transfer Agreements, the Running Right Trademark License, the Transition Services Agreement, the Workers Compensation and Black Lung Benefits Administration Agreement and each other document, agreement or instrument executed and delivered in connection herewith or therewith (including each document, agreement or instrument executed and delivered in connection with the Restructuring Steps).
“ Transition Services Agreement ” means the Transition Services Agreement dated as of the Closing Date between Buyer, Alpha Natural Resources

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and ReorgCo, in a form to be mutually agreed between the Parties in accordance with ‎Section 7.11.
“ Unencumbered Assets Settlement ” has the meaning ascribed to it in the Order (i) Approving Certain Settlements and (ii) Granting Related Relief (Docket No. 2440).
“ Workers Compensation and Black Lung Benefits Administration Agreement ” means the Workers Compensation and Black Lung Benefits Administration Agreement dated as of the Closing Date between Buyer, the applicable Sellers and ReorgCo, in a form to be mutually agreed between the Parties in accordance with Sections 7.11 and 9.02(f).
“ Workers’ Compensation Liabilities ” means any liabilities or benefit obligations related to workers’ compensation claims and benefits arising under Applicable Law.
“ Working Capital ” means an amount equal to the coal inventory, supplies inventory and accounts receivable included in the Purchased Assets minus the trade accounts payable included in the Assumed Liabilities, in each case (i) determined as of 12:00 a.m. on the Closing Date (and disregarding any extraordinary transaction occurring after the Closing and prior to 12:00 a.m. on the Closing Date) and (ii) calculated in the manner set forth on Exhibit J .
“ Working Capital Adjustment ” means an amount (which may be positive or negative) equal to the amount of Working Capital minus the Working Capital Target.
“ Working Capital Target ” means $104.2 million.
(a)      Each of the following terms is defined in the Section set forth opposite such term:
Term
Section
Accounts Receivable
2.01(e)
Agreement
Preamble
Alpha Natural Resources
Preamble
ANR Subsidiaries
Preamble
Arbitrator
2.11(c)
Assumed Leases
2.01(b)(i)
Assumed Liabilities
2.03
Assumed Contracts
2.01(g)
Bankruptcy Court
Recitals
Business Employees
9.01(a)
Business Records
5.05

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Term
Section
Buyer
Preamble
Buyer Common Stock
2.06(i)
Buyer Common Stock Redemption
! ‎6.04
Buyer 401(k) Plan
9.02(g)
Buyer Plans
9.02(c)(i)
Buyer Preferred Stock
4.09
Buyer Purchase Price Common Stock
2.06(i)
Buyer Securities
2.06(iv)
Buyer Takeback Paper
2.06(iii)
Buyer Warrants
2.06(ii)
CBAs
10.02(i)
Closing
2.08
CM
7.12(a)(ii)
Closing Date Coal Inventory Volume
2.07(b)
Credit Release
Recitals
Consent Decrees
3.08(d)
CoreCo
1.03(a)
Cure Costs
2.05(a)
Delaware Courts
12.07
Designated Buyer
2.15
Dispute Notice
2.11(b)
e-mail
12.01
Effective Date
Preamble
End Date
11.01(b)
Equipment and Fixed Assets
2.01(c)
Excluded Assets
2.02
Excluded Contracts
2.02(m)(ii)
Excluded Leases
2.02(l)
Excluded Liabilities
2.04
Excluded Nicholas Complex Owned Property
7.12(a)
Excluded Off-Site Environmental Liabilities
2.04(s)
Excluded Pre-Closing Fines
2.03(b)(iv)
FCPA
3.21
Final Working Capital Adjustment
2.11(c)
Financial Statements
3.11
GUC Distribution Note
2.06(iv)
Included Cash
2.01(d)
Insurance Policies
3.15
Interim Period
7.03(a)(v)
Inventory Inspector
2.07(a)
Licenses
3.07(a)

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Term
Section
Litigation
3.16(a)
Liquidity Condition
10.02(f)
Material Contract
3.10(a)
Minimum Coal Inventory Condition
10.02(e)
Mining Rights
7.12(a)(ii)(B)
Nicholas Complex Coal Sublease
7.12(a)
Nicholas Complex Deeds
7.12(a)
NonCoreCo
1.03(b)
Non-Party Affiliates
12.16
Offered Employees
9.02(a)
Off-Site Coal Inventory
2.07(b)
Overlapping Permit Property
7.03(f)
Overlapping Transferred Permits/Licenses
7.03(f)
Party
Preamble
Permits
3.07(a)
Petition Date
Recitals
Post-Closing Restructuring Steps
Recitals
Pre-Closing Restructuring Steps
Recitals
Proposed Final Closing Statement
2.11(a)
Purchase Price
2.06
Purchased Assets
2.01
Purchased Intellectual Property
2.01(m)
Purchased Leased Real Property
2.01(b)(ii)
Reference Date
3.12
Removed Asset
2.05(c)
ReorgCo
Preamble
ReorgCo Parent
Recitals
ReorgCo Transfers
Recital
Retained Seller IP
5.04(b)
Restructuring Steps
Recitals
Section 1113(c) Motion
10.02(i)
Sellers
Preamble
Seller Name
5.04(a)
Sellers’ Representative
Preamble
Specifically Excluded Assets
2.02(k)
Specified Assets
5.13(c)
Subsidiary Transfers
Recitals
Transfer Taxes
8.01(b)
Transferred Employees
9.02(a)
Transferred Permits/Licenses
2.01(i)
UMWA
2.03(d)

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Term
Section
WARN Act
7.05
 
 

Section 1.02.      Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person (including, in the case of Alpha Natural Resources, the limited liability company successor resulting from the conversion of Alpha Natural Resources, Inc. to a limited liability company pursuant to step 19 of the Restructuring Steps). References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law,” “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Law. References to documents or information having been previously delivered, furnished or made available to Buyer shall mean that the relevant documents or information were uploaded to the Data Room in a folder accessible by Buyer prior to the date of this Agreement. References to “the transactions contemplated by this Agreement” includes the Restructuring Steps.
Section 1.03.      CoreCo and NonCoreCo
(a)      “ CoreCo ” means (i) with respect to any period of time prior to the Closing, Alpha Natural Resources and (ii) with respect to any period of time from and after the Closing, Buyer and the Designated Buyers. All covenants and

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agreements contained herein that by their terms are to be performed by or for the benefit of “CoreCo” shall (i) during the period of time prior to the Closing, be performed by or for the benefit of Alpha Natural Resources and (ii) during the period of time from and after the Closing, be performed by or for the benefit of Buyer and the Designated Buyers. For the avoidance of doubt, if the Closing occurs, all obligations and rights hereunder of Alpha Natural Resources in the capacity of “CoreCo” shall transfer to Buyer and the Designated Buyers, and Alpha Natural Resources shall cease to have any such obligations or rights.
(b)      “ NonCoreCo ” means (i) with respect to any period of time prior to the ReorgCo Transfers Closing, Alpha Natural Resources and (ii) with respect to any period of time from and after the ReorgCo Transfers Closing, ReorgCo. All covenants and agreements contained herein which by their terms are to be performed by or for the benefit of “NonCoreCo” shall (i) during the period of time prior to the ReorgCo Transfers Closing, be performed by or for the benefit of Alpha Natural Resources and (ii) during the period of time from and after the ReorgCo Transfers Closing, be performed by or for the benefit of ReorgCo. For the avoidance of doubt, if the ReorgCo Transfers Closing occurs, all obligations and rights hereunder of Alpha Natural Resources in the capacity of “NonCoreCo” shall transfer to ReorgCo, and Alpha Natural Resources shall cease to have any such obligations or rights.
(c)      All references in this Agreement to CoreCo and NonCoreCo shall, to the extent necessary to effect the original intent of the Parties as closely as possible so that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible, be deemed to include the Subsidiaries of CoreCo and NonCoreCo, respectively; provided that, with respect to any reference to Buyer as CoreCo, such reference shall not be deemed to include any Subsidiaries of Buyer other than the Designated Buyers. Each Party agrees to cause its Subsidiaries to comply with their respective obligations under this Agreement (after giving effect to this ‎Section 1.03(c)).
ARTICLE 2     
PURCHASE AND SALE
Section 2.01.      Purchase and Sale . Except as otherwise provided below, upon the terms and subject to the conditions of this Agreement, Buyer agrees, and agrees to cause the relevant Designated Buyers, to purchase from Alpha Natural Resources (or, in the case of legal title to the Specified Assets, the applicable ANR Subsidiaries), and Alpha Natural Resources agrees to sell, convey, transfer, assign and deliver, or cause to be sold, conveyed, transferred, assigned and delivered, to Buyer, or the relevant Designated Buyers, at the Closing, free and clear of all Encumbrances, other than Permitted Encumbrances, all of Alpha Natural Resources’ (or, in the case of legal title to the Specified Assets, the applicable ANR Subsidiaries’) right, title and interest in, to and under the

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following assets and properties, in each case that are owned, held or used by the Sellers and their Affiliates in the conduct of the Purchased Business (together, the “ Purchased Assets ”):
(a)      the Owned Real Property;
(b)      (i) the Leases (including all prepaid royalties and un-recouped minimum royalties thereunder), other than the Excluded Leases and subject to ‎Section 7.12 (collectively, the “ Assumed Leases ”), and (i) the Leased Real Property (other than the Leased Real Property subject to the Excluded Leases) (clauses (i) and (ii), collectively, the “ Purchased Leased Real Property ”);
(c)      all equipment, fixed assets and other tangible assets (including all mobile mining equipment, parts, supplies, tires and components) owned by any Seller or any of its Affiliates (wherever situated) and all other equipment, fixed assets and tangible assets located at the Sellers’ and their respective Affiliates’ loadouts, preparation plants, active mining areas, reclamation areas and coal storage areas, in each case that are owned and used or held for use primarily in the conduct of the Purchased Business by the Sellers and their Affiliates, and all of the Sellers’ and their respective Subsidiaries’ rights under warranties, indemnities, licenses and all similar rights against third parties with respect to the equipment, fixed assets and tangible assets referenced in this clause ‎(c) (to the extent such rights are assignable at no cost, expense or penalty to the Sellers or their Affiliates, or at Buyer’s election if Buyer agrees to pay for such cost, expense or penalty), but excluding the Specifically Excluded Assets (collectively, the “ Equipment and Fixed Assets ”);
(d)      unrestricted cash and cash equivalents to the extent necessary to satisfy the Liquidity Condition (the amount of cash and cash equivalents so delivered, the “ Included Cash ”);
(e)      all accounts receivable, notes, chattel paper, negotiable instruments, receivables (whether current or non-current) and other current assets (subject to ‎Section 2.02(a)) of the Sellers and their Affiliates primarily related to the Purchased Business (the “ Accounts Receivable ”);
(f)      all coal inventory and gas located on, or mined or extracted from, the Purchased Real Property, including all coal inventory calculated in accordance with ‎Section 2.07;
(g)      all right, title and interest of the Sellers’ and their respective Affiliates’ now or hereafter existing, in, to and under (i) the Contracts listed on Schedule ‎2.01(g) (as such schedule may be modified pursuant to ‎Section 2.05, collectively, the “ Assumed Contracts ”) and (i) such other Contracts entered into by a Seller or any Affiliate of a Seller in the ordinary course of business after the date hereof as permitted pursuant to ‎Section 5.01 and ‎Section 5.02 and added to

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Schedule ‎2.01(g) by Buyer pursuant to ‎Section 2.05, in each case, as each such Contract may have been amended or otherwise modified prior to the date of (or as permitted in accordance with the terms of) this Agreement;
(h)      all deposits (including (i) security deposits for rent, electricity, telephone, other utilities or otherwise and (ii)(A) the cash collateral securing the letters of credit issued in favor of Summitpoint Insurance Company (Brickstreet Mutual Insurance Company) and Self-Insurance Division Bureau of Workers’ Compensation (PA), which cash collateral, as of the date hereof, was equal to $4,190,000 and $14,200,000, respectively, and (B) the cash collateral securing the letter of credit issued in favor of Western Surety, to the extent a replacement letter of credit is issued by application of Buyer or any of its Subsidiaries, which replacement letter of credit and cash collateral will be equal to $2,139,000 (it being understood that the Parties will cooperate to cause such a replacement letter of credit to be issued in the amount of $2,139,000), and, for the avoidance of doubt, in each case of this clause (ii), such cash collateral will not be considered unrestricted cash or cash equivalents) and all prepaid or deferred charges and expenses, including ad valorem taxes, leases and rentals, in each case to the extent provided or paid in connection with the Purchased Business (but excluding any deposits or prepaid or deferred charges and expenses to the extent relating to any Excluded Asset or any Excluded Liability);
(i)      subject to ‎Section 7.03 and ‎Section 7.12, the Permits and the Licenses set forth on Schedule ‎3.07 (together, the “ Transferred Permits/Licenses ”);
(j)      all rights of the Sellers and their Affiliates to use haul roads, utility easements and other rights of way and easements used or held for use in the operation of the Purchased Business;
(k)      the Sellers’ and their Affiliates’ interests in Dominion Terminal Associates;
(l)      all books, records, files, personnel files (to the extent relating to Transferred Employees and reasonably required by Buyer to comply with its obligations under Article 9) invoices, market research, customers, distributors and suppliers lists, promotional materials and other papers, whether in hard copy or computer format, in each case to the extent related to the Purchased Assets or the Purchased Business, including any information relating to any Tax imposed on the Purchased Assets or the Purchased Business (subject to ‎Section 2.02(g));
(m)      all Intellectual Property Rights used or held for use primarily in connection with the conduct of the Purchased Business (collectively, the “ Purchased Intellectual Property ”), including: (i) the trademarks, trade names, service marks, domain names, patents and copyrights (including any issuances, registrations or applications for registration of any of the foregoing) set forth in

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Schedule ‎2.01(m) , and (i) to the extent not included in ‎Section 2.01(g) above, all rights granted from third parties relating to any Intellectual Property Rights used or held for use primarily in connection with the conduct of the Purchased Business;
(n)      subject to ‎Section 6.03, all Avoidance Actions against the Persons set forth on Schedule ‎2.01(n) (which Schedule shall (i) not include Buyer or any current or former lenders under the Credit Agreement in their capacity as such, and (ii) be delivered by Buyer on or prior to the Closing Date) with whom it is necessary, as determined by Buyer in its discretion, for Buyer to conduct business in order to operate the Purchased Business, each of which will be released and waived in the Confirmation Order;
(o)      all insurance proceeds, reserves, benefits or claims of any Seller or its Subsidiaries under the Insurance Policies to the extent relating to the Assumed Liabilities, the Purchased Assets or the Purchased Business;
(p)      all goodwill;
(q)      all claims, causes of action (other than Avoidance Actions), choses in action and rights of recovery, off-set and subrogation against third Persons, to the extent related to the Purchased Business;
(r)      all demands, reimbursements and rights of whatever nature, to the extent related to the Purchased Assets or any Assumed Liability (including rights under and pursuant to all warranties, representations and guarantees made by suppliers of products, materials or equipment or components thereof, or arising from the breach by third parties of their obligations under the Assumed Contracts);
(s)      the assets set forth on Schedule ‎2.01(s) (for the avoidance of doubt, the assets set forth on Schedule ‎2.01(s) shall be considered Purchased Assets);
(t)      all rights of Sellers and their Affiliates under non-disclosure, or confidentiality, non-compete or non-solicitation agreements to the extent related to the Purchased Business;
(u)      all other assets of Sellers or their Affiliates, except for assets that are specifically excluded in any of the foregoing clauses or in ‎Section 2.02, primarily related to the Purchased Business; and
(v)      any and all Actions or counterclaims relating to any of the foregoing Purchased Assets and any Assumed Liabilities.
It is the intention of the Parties that Buyer or the relevant Designated Buyers acquire, lease or sublease all assets, properties and rights of Sellers or

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their Affiliates necessary for the operation of the Purchased Business as presently conducted, including all mining, processing, loading, transporting, marketing, and selling of coal and all reclamation activities, and the development, drilling, extraction, processing, loading, transporting and selling of natural gas (other than with respect to natural gas in or related to the PLR Complex), but excluding the Specifically Excluded Assets. Subject to ‎Section 2.05(c), if, within twelve months after the Closing it is discovered that any assets, properties or rights of Sellers or their Affiliates, or ReorgCo and its Subsidiaries, including rights under Contracts and fractional real property interests, owned, leased or subleased by the Sellers or any of their Affiliates, other than the Specifically Excluded Assets, were not included in the Purchased Assets to be sold to Buyer or the relevant Designated Buyers, and such assets, properties or rights, individually or in the aggregate, are needed to be included as Purchased Assets in order to make the representation in ‎Section 3.09(b) true in all respects, then the Sellers or their Affiliates, or ReorgCo and its Subsidiaries, as applicable, shall assign, convey, lease or sublease, as applicable, such assets, properties or rights to Buyer or the relevant Designated Buyers, in each case upon the reasonable request of Buyer and to the extent permitted by Applicable Law; provided , however, this obligation shall not include the assignment, conveyance, lease or sublease of any Specifically Excluded Asset other than any Contracts which the Parties may mutually agree were omitted from Schedule ‎2.01(g) in error and shall not require the payment by any Seller of any consent or related fee to the extent the consent of a third party is required for such assignment or conveyance. If any controlled Affiliate of the Sellers owns any asset, property or right that would have been a Purchased Asset if such Affiliate had been a Seller hereunder, the provisions of this paragraph shall apply to such asset, property or right regardless of whether it is necessary for the operation of the Purchased Assets.
In the event that any Purchased Asset is not transferred and delivered to Buyer (or the relevant Designated Buyer) at Closing either because it was not or could not be transferred by the applicable ANR Subsidiary to Alpha Natural Resources in the Subsidiary Transfers or because it otherwise was not or could not be transferred by Alpha Natural Resources at the Closing, the applicable Party or Parties will transfer and deliver such Purchased Asset to Buyer (or the relevant Designated Buyer) as promptly thereafter as possible. For the avoidance of doubt, the Purchased Assets to be sold, transferred, assigned and delivered by Alpha Natural Resources include its right to the Specified Assets as described in Section 5.13(c).
Section 2.02.      Excluded Assets . Notwithstanding anything herein to the contrary, Buyer expressly understands and agrees that the following assets and properties of the Sellers and their respective Affiliates (the “ Excluded Assets ”) shall be excluded from the Purchased Assets:

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(a)      except as set forth in ‎Section 2.01(h), all cash and cash equivalents other than the Included Cash;
(b)      all permits and licenses not used or held for use primarily in the conduct of the Purchased Business or the Purchased Assets;
(c)      subject to ‎Section 2.01(o), the Insurance Policies;
(d)      all director and officer insurance policies and claims thereunder;
(e)      all books, records, files and papers, whether in hard copy or computer format, prepared in connection with this Agreement or the transactions contemplated hereby, and all personnel files (except as set forth in ‎Section 2.01(l)) and minute books (and similar corporate records) of the Sellers and their Affiliates;
(f)      all rights of the Sellers arising under this Agreement or the transactions contemplated hereby (other than the rights of Alpha Natural Resources with respect to the Subsidiary Transfers, which shall constitute Purchased Assets);
(g)      all (i) refunds for Taxes incurred in a Pre-Closing Tax Period, including those relating to the Purchased Business or the Purchased Assets, and (ii) Tax Returns of the Sellers, in each case, together with all books and records (including working papers) exclusively related thereto (other than Tax Returns of a Continued Tax Group, which shall constitute Purchased Assets);
(h)      all Tax assets (other than any prepaid Taxes) and net operating losses of the Sellers (other than net operating losses or similar tax attributes of a Continued Tax Group, which shall constitute Purchased Assets);
(i)      subject to ‎Section 6.03, all Avoidance Actions, or proceeds thereof, against Persons not set forth on Schedule ‎2.01(n) and all Avoidance Actions, or proceeds thereof, that relate solely to the Excluded Assets;
(j)      all equity interests in the Subsidiaries of Alpha Natural Resources and all equity interests in ReorgCo Parent or ReorgCo;
(k)      the other assets, properties and rights set forth on Schedule ‎2.02(k) (the “ Specifically Excluded Assets ”);
(l)      the Leases (including all prepaid royalties and un-recouped minimum royalties thereunder) set forth on Schedule ‎2.02(l) (collectively, the “ Excluded Leases ”), and the Leased Real Property subject to the Excluded Leases;

25


(m)      all right, title and interest of the Sellers and their Affiliates now or hereafter existing, in, to and under all Contracts (including all collective bargaining agreements to which any of the Sellers or any of their Affiliates are bound), other than (i) the Assumed Leases, (i) the Assumed Contracts and (i) any contractual rights included in the Purchased Intellectual Property (collectively, the “ Excluded Contracts ”) (for the avoidance of doubt, operational permits and licenses are not addressed in this ‎Section 2.02(m));
(n)      the Seller Name;
(o)      subject to ‎Section 5.04(b) and ‎Section 5.04(c), all of the Sellers’ and their Affiliates’ right, title and interest in, to and under any computer programs owned by any of the Sellers or any of their Affiliates, whether in source code or object code form (and including all related documentation); and
(p)      all assets and properties of the Sellers or any of their Affiliates that are not owned, held or used primarily in the conduct of the Purchased Business.
Notwithstanding anything to the contrary in this Agreement, if any asset or property is specifically identified in Sections any of ‎2.01(a) through ‎2.01(v), a corresponding schedule or otherwise ( e.g. , by reference to the Liquidity Condition in ‎Section 2.01(d)), such asset or property will be deemed for purposes of this Agreement to be used or held for use primarily in the conduct of the Purchased Business and therefore will be a Purchased Asset.
Section 2.03.      Assumed Liabilities . Except for the obligations and Liabilities specifically assumed by Buyer or the relevant Designated Buyers in this ‎Section 2.03, Buyer and the Designated Buyers shall not be deemed to have assumed or agreed to be responsible for any Seller’s, or any of its Affiliates’, Liabilities, whether or not arising out of the ownership and operation of the Purchased Assets or the Purchased Business. Upon the terms and subject to the conditions of this Agreement, effective at the time of the Closing, Buyer shall, or shall cause the relevant Designated Buyers to, assume, become obligated for, and agree to pay and perform when due, only the following Liabilities of the Sellers (collectively, the “ Assumed Liabilities ”), and no other Liabilities, subject to ‎Section 7.12:
(a)      all Liabilities of the applicable Sellers arising after the Closing Date under the Assumed Leases and the Assumed Contracts, not including Cure Costs;
(b)      all Liabilities of the Sellers arising out of or relating to (i) the Transferred Permits/Licenses, including such Liabilities thereunder arising out of or relating to all reclamation and post-mining Liabilities at the Purchased Assets, (i) any mine operating or safety compliance matters related to the condition of the Purchased Assets or the mining areas of the Purchased Business, (i) the Purchased Assets’ or the Purchased Business’ compliance with Environmental

26


Laws; and (i) any conditions arising from a spill, emission, release or disposal into the environment of, or human exposure to, Hazardous Materials resulting from the operation of the Purchased Assets, excluding , in each of the preceding cases ‎(i)‑‎(iv), any monetary fines and penalties to the extent that such monetary fines and penalties arise from or relate to acts or omissions occurring on or before the Closing Date and can be Excluded Liabilities under Applicable Law, including any monetary fines and penalties for which the Sellers or any of their Affiliates have received a written notice of violation or notice of claim (or other notice of similar legal intent or meaning) from any Governmental Authority relating to a violation on or prior to the Closing Date (whether or not disclosed on Schedule ‎3.08(a) or Schedule ‎3.17 ) (such excluded fines and penalties, collectively, the “ Excluded Pre-Closing Fines ”) and any Excluded Off-Site Environmental Liabilities;
(c)      except as provided in ‎Section 7.03, all Liabilities of any kind or character to the extent resulting from or arising out of or in connection with Buyer’s or the relevant Designated Buyer’s use, operation, possession or ownership of or interest in the Purchased Assets and/or Purchased Business, in each case, following the Closing, including during the Interim Period;
(d)      (i) with respect to any Transferred Employee (except as otherwise set forth in the following clause (iii)), any and all claims relating to employee health and safety, including claims for injury, sickness, disease or death, including any Workers’ Compensation Liabilities, to the extent arising out of an event or injurious exposure that occurs after the Closing Date, (ii) with respect to any Transferred Employee represented by the United Mine Workers of America (“ UMWA ”), other than Black Lung Liabilities, any and all claims relating to employee health and safety, including claims for injury, sickness, disease or death, to the extent arising out of an event or injurious exposure that occurs before, on or after the Closing Date, and (iii) any and all Black Lung Liabilities with respect to any Transferred Employee (including any Transferred Employee represented by the UMWA) who is employed by the Buyer or the applicable Designated Buyer for a period of not less than one year (as defined in 20 CFR § 725.101(a)(32)) if the Buyer or the applicable Designated Buyer is otherwise liable to such Transferred Employee for such Black Lung Liabilities;
(e)      all trade accounts payable arising after the Petition Date in connection with the Purchased Business to the extent such trade payables are included in the Final Working Capital Adjustment;
(f)      the Liabilities expressly assumed by Buyer pursuant to ‎Section 9.02; and
(g)      those Liabilities specified in Schedule ‎2.03(g) with respect to the Consent Decrees identified in such Schedule.

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Section 2.04.      Excluded Liabilities . Notwithstanding any provision in this Agreement or any other writing to the contrary, Buyer and/or the relevant Designated Buyers are assuming only the Assumed Liabilities and are not assuming any other Liability of the Sellers or any of their Affiliates of whatever nature, whether presently in existence or arising hereafter and whether or not related to the Purchased Assets or the Purchased Business. All such other Liabilities (all such Liabilities not being assumed being herein referred to as the “ Excluded Liabilities ”) shall, subject to the discharge under section 1141 of the Bankruptcy Code and the other terms of the Plan of Reorganization and the Confirmation Order, be retained by and remain Liabilities of NonCoreCo and its Affiliates. Notwithstanding any provision in this Agreement (including ‎Section 2.03) or any other writing to the contrary, the Excluded Liabilities shall include the following:
(a)      all Liabilities for Taxes (i) of any Seller, its Affiliates or any of their stockholders (or members) for any Tax period (including any liability of any Seller for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise) or (ii) arising from or attributable to the ownership of the Purchased Assets or the operation of the Purchased Business (or of a Continued Tax Group) for any Tax period (or portion thereof) ending on or prior to the Closing Date;
(b)      any Liability of the Sellers or their Affiliates under any Indebtedness, including Indebtedness owed by any Seller to any direct or indirect Affiliate of such Seller, and any obligations or liability under debtor in possession financing incurred by the Sellers or their Affiliates during the Bankruptcy Case;
(c)      other than Liabilities that are Assumed Liabilities under ‎Section 2.03(d), all Black Lung Liabilities and Workers’ Compensation Liabilities related to the Purchased Assets, including to and with respect to Business Employees and former employees who worked or who were employed at the Purchased Assets, including, but not limited to, any such Black Lung Liabilities and Workers’ Compensation Liabilities of the Sellers or any of their respective Affiliates with respect to any of their respective predecessors;
(d)      any Liability with respect to the Seller Transaction Expenses;
(e)      any Liability to the extent relating to or arising out of an Excluded Asset;
(f)      any Liabilities of any Seller or any of their Affiliates relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders prior to the Closing Date that (subject to the last sentence of ‎Section 7.01(a)) are not validly and effectively assigned to Buyer and/or the relevant Designated Buyers pursuant to this Agreement;

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(g)      any Excluded Pre-Closing Fines;
(h)      other than the Assumed Liabilities pursuant to ‎Section 2.03(b), ‎(d)(ii) and ‎(g), any Liabilities arising out of, in respect of or in connection with the failure by any Seller or any of its Affiliates to comply with any Applicable Law or order by any Governmental Authority;
(i)      other than the Assumed Liabilities pursuant to ‎Section 2.03(a), any Liability under the Assumed Contracts and the Assumed Leases arising out of or relating to events, breaches or defaults thereunder occurring on or prior to the Closing Date (including all Cure Costs);
(j)      any Liability with respect to any coal sales, natural gas sales in any way related to the PLR Complex (it being understood that certain of such Liabilities have been assigned to the purchaser of such assets pursuant to the PLR Order and the agreements attached thereto and are not being retained by or remaining Liabilities of NonCoreCo and its Affiliates) or other goods sold or any service provided by the Sellers or their Affiliates, including any such Liability or obligation (i) pursuant to any express or implied representation, warranty, agreement, coal specification undertaking or guarantee made by any Seller or any Affiliate of such Seller, or alleged to have been made by any Seller or any Affiliate of such Seller, (ii) imposed or asserted to be imposed by operation of Applicable Law or (iii) pursuant to any doctrine of product liability;
(k)      other than the Assumed Liabilities pursuant to ‎Section 2.03(a), ‎(b), ‎(d)(ii) and ‎(g), any Liability with respect to any Action to the extent arising out of or relating to the operation of the Purchased Business or pertaining to the Purchased Assets, in each case prior to Closing;
(l)      any Liability (whether arising before, on or after Closing) with respect to any employee or former employee of any Seller or any Affiliate of any Seller (or any individual who applied for employment with any Seller) who is not a Transferred Employee;
(m)      other than Liabilities that are Assumed Liabilities under ‎Section 2.03(d) or ‎Section 2.03(f), any Liability that relates to any Transferred Employee arising out of or relating to events occurring on or prior to the Closing Date;
(n)      other than as set forth in ‎Section 2.03(e), all trade accounts payable, all accrued operating expenses and other current liabilities of the Sellers related to the Purchased Business;
(o)      other than Liabilities that are Assumed Liabilities under ‎Section 2.03(d) or ‎Section 2.03(f), any Liability arising under, relating to or with respect to any employee benefit plan, policy, program, agreement or arrangement at any time maintained, sponsored or contributed to by any Seller or any ERISA

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Affiliate, or with respect to which any Seller or any ERISA Affiliate has any liability, including with respect to any underfunded pension liability to any employee benefit plan, the PBGC, IRS or Department of Labor or otherwise;
(p)      any Liability arising under, relating to or with respect to any multi-employer pension plan;
(q)      other than Liabilities that are Assumed Liabilities under ‎Section 2.03(d) or ‎Section 2.03(f), any Liabilities to any current or former employee of any Seller or any of its Affiliates or any beneficiary thereof, relating to any employee benefits or compensation arrangement;
(r)      other than Liabilities that are Assumed Liabilities under ‎Section 2.03(f), any Liability under any employment, collective bargaining, severance, retention or termination agreement or arrangement with any employee, consultant or contractor (or its Representatives) of any Seller or any of its Affiliates;
(s)      any Liabilities pursuant to Environmental Law arising from or related to any use, transportation, release, treatment, storage or disposal of, or human exposure to, Hazardous Materials at any location not included in the Purchased Assets (the “ Excluded Off-Site Environmental Liabilities ”);
(t)      except as specified in ‎Section 2.03(g), all Liabilities under any Consent Decree, including all Liabilities for any stipulated penalties under any Consent Decree to the extent such penalties arise from or relate to events occurring pre-Closing; and
(u)      any Liability arising under, relating to or with respect to the Restructuring Steps, other than any Liability for the failure of Buyer or any of its Subsidiaries to perform any Restructuring Step that is expressly to be performed by Buyer or any of its Subsidiaries (for the avoidance of doubt, a Liability shall not be deemed to arise under, relate or exist with respect to the Restructuring Steps solely because it is transferred pursuant to the Restructuring Steps).
Section 2.05.      Assignment of Assumed Contracts and Rights; Cure Amounts . (a) Alpha Natural Resources shall transfer and assign or cause to be transferred and assigned all Assumed Contracts and Assumed Leases to Buyer or the relevant Designated Buyers, as applicable, and Buyer shall, or shall cause the relevant Designated Buyers to, assume all Assumed Contracts and Assumed Leases from Alpha Natural Resources, as of the Closing Date pursuant to section 365 of the Bankruptcy Code and the Confirmation Order. Buyer shall, and shall cause the relevant Designated Buyers to, comply with all requirements of section 365 of the Bankruptcy Code necessary to permit such assignment and/or assumption. In connection with such assignment and/or assumption, Sellers shall cure all defaults under such Assumed Contracts and Assumed Leases to the extent required by section 365(b) of the Bankruptcy Code (such amounts, including any

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amount that is determined after Closing to be required, the “ Cure Costs ”) on or prior to the Closing; provided that , any amount of Cure Costs that are disputed as of Closing, or are determined after Closing to be required, shall be paid by Sellers within a reasonable amount of time after such dispute or determination is finally resolved or made or as otherwise required by the Plan of Reorganization and the Confirmation Order. The proposed Cure Costs for each Assumed Contract are set forth opposite the name of each Assumed Contract set forth on Schedule ‎2.01(g) and for each Assumed Lease are set forth opposite the name of each Assumed Lease set forth on Schedule ‎3.06(a)(i) .
(b)      The Confirmation Order shall provide that as of and conditioned on the occurrence of the Closing, Alpha Natural Resources shall assign or cause to be assigned to Buyer, or the relevant Designated Buyers, as applicable, the Assumed Contracts and the Assumed Leases, each of which shall be identified by the name or appropriate description and date of the Assumed Contract (if available) and the Assumed Lease, the counterparties to the Assumed Contract and the Assumed Lease and the address of such counterparties for notice purposes, all included on an exhibit attached to either a Cure Notice or a separate motion for authority to assume and assign such Assumed Contracts and Assumed Leases. Such exhibit shall also set forth the amounts necessary to cure any defaults under each of the Assumed Contracts and the Assumed Leases as determined by the Sellers based on the Sellers’ books and records or as otherwise determined by the Bankruptcy Court.
(c)      Notwithstanding anything herein to the contrary, to the extent the assignment of any Assumed Contract, Assumed Lease or Transferred Permit/License to Alpha Natural Resources as part of the Subsidiary Transfers or to Buyer at the Closing, or the ownership or operation of any Purchased Asset by Alpha Natural Resources or Buyer, as applicable, is, after giving effect to sections 363 and 365 of the Bankruptcy Code, not permitted by law or not permitted without a License or the consent of another Person, and such restriction cannot be effectively overridden or canceled by the Confirmation Order or other related order of the Bankruptcy Court, then the applicable instrument of transfer for the Subsidiary Transfers or this Agreement, as applicable, shall not constitute an agreement to assign or an assignment or transfer of the same (each a “ Removed Asset ”), and (subject to ‎Section 7.01) the Sellers and Buyer shall use commercially reasonable efforts to obtain any such required License or consent(s) and once obtained, such Removed Asset will be assigned and assumed to Alpha Natural Resources or to Buyer, as applicable, as though it were one of the Assumed Leases, Assumed Contracts or other Purchased Assets, as applicable. These commercially reasonable efforts shall not require any material payment or other material consideration from any Seller, Buyer or any Designated Buyer (other than the Cure Costs, which shall be the responsibility of the Sellers), and any such consent shall contain terms and conditions acceptable to the Parties. For the avoidance of doubt, the term “material” in the prior sentence means

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material in the context of the relevant Removed Asset. If any such License or consent shall not be obtained, or if any attempted assignment would be ineffective or would impair Buyer’s or any Designated Buyer’s rights under the Purchased Asset in question, the Sellers and Buyer shall, subject to any approval of the Bankruptcy Court that may be required, use commercially reasonable efforts for a reasonable period of time following the Closing, or until such earlier time as the Sellers liquidate, wind-down or otherwise cease operations, to obtain for Buyer or the relevant Designated Buyer, as applicable, the benefits and burdens thereunder; provided , that in no event shall the Buyer or any Designated Buyer be obligated to accept any amendment to the terms of any Transferred Permit/License or any additional conditions with respect to any Transferred Permit/License. These commercially reasonable efforts shall not require any material payment or other material consideration from any Seller, Buyer or any Designated Buyer (other than the Cure Costs, which shall be the responsibility of Seller). For the avoidance of doubt, the term “material” in the prior sentence means material in the context of the relevant Removed Asset. Nothing in this ‎Section 2.05‎(c) will limit or constitute a waiver of ‎Section 10.02(f) or ‎Section 10.02(g).
(d)      Notwithstanding anything in this Agreement to the contrary, Buyer may, from time to time in its discretion, at any time prior to the earlier of (x) the date that is two Business Days prior to the Closing Date or (y) the date on which the Plan of Reorganization, the Bankruptcy Code or the Bankruptcy Court would require a determination to assume or reject such Contract or Lease, amend or revise Schedule ‎3.06(a)(i) , Schedule ‎2.01(g) , Schedule ‎2.02(l) or Schedule ‎3.07 in order to (i) add any Lease (or, in the case of Schedule ‎2.02(l) , remove any Lease), equipment, fixed asset or other tangible asset, Permit, License or Contract, as applicable, to such Schedules; provided that such Lease, equipment, fixed asset or other tangible asset, Permit, License or Contract is owned, used or held for use by Sellers or their Affiliates primarily in connection with the Purchased Business, or (ii) eliminate any Lease, equipment, fixed asset or other tangible asset, Permit, License or Contract, as applicable, from such Schedules. Automatically upon the deletion of any Lease from Schedule ‎2.02(l) or the addition of any Lease, equipment, fixed asset or other tangible asset, Permit, License or Contract to Schedule ‎3.06(a)(i) , Schedule ‎2.01(g) or Schedule ‎3.07‎(a) , as applicable, by the Buyer in accordance with the previous sentence, such Lease shall be an Assumed Lease, such Contract shall be an Assumed Contract, such equipment, fixed asset or other tangible asset shall be a Purchased Asset and such Permit or License shall be a Transferred Permit/License, as applicable, for all purposes of this Agreement. Automatically upon the addition of any Lease to Schedule ‎2.02(l) or the deletion of any Equipment, Fixed Asset or other tangible asset, Permit, License or Contract from Schedule ‎3.06(a)(i) , Schedule ‎2.01(g) or Schedule ‎3.07‎(a) by the Buyer in accordance with the first sentence of this ‎Section 2.05(d), such Lease shall be an Excluded Lease, such Contract shall be an Excluded Contract, such equipment, fixed asset or other tangible asset shall be

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an Excluded Asset and such Transferred Permit/License shall no longer be a Transferred Permit/License for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto shall be assumed by the Buyer or any Designated Buyer or be the obligation, liability, or responsibility of Buyer or any Designated Buyer. If any Lease is added to the list of Assumed Leases or any Contract is added to the list of Assumed Contracts, then the Sellers shall take such steps as are reasonably necessary to cause such Lease or such Contract, as the case may be, to be assumed and assigned to Alpha Natural Resources and then to Buyer or a relevant Designated Buyer as promptly as possible at or following the Closing (subject to any required approvals of the Bankruptcy Court). Notwithstanding anything in this Agreement to the contrary, if any amendment or revision to the Disclosure Schedules requires, in Buyer’s discretion, an amendment to Schedule A , the Parties and the applicable subsidiary of Alpha Natural Resources will execute such an amendment making such subsidiary a ANR Subsidiary for all purposes under this Agreement.
Section 2.06.      Purchase Price; Allocation of Purchase Price . On the terms and subject to the conditions set forth in this Agreement, Buyer shall, on its own behalf and as agent for the relevant Designated Buyers, as consideration for the Purchased Assets, in addition to the assumption by Buyer of the Assumed Liabilities and the Credit Release, issue and deliver to Alpha Natural Resources the following (together with the Credit Release, the “ Purchase Price ”):
(i)      10,000,000 shares of the Buyer’s common stock, par value $0.01 per share (“ Buyer Common Stock ”), representing 100% of the issued and outstanding Buyer Common Stock (after giving effect to the Buyer Common Stock Redemption) (the “ Buyer Purchase Price Common Stock ”);
(ii)      warrants to acquire 810,811 shares of Buyer Common Stock, substantially in the form attached as Exhibit K hereto (the “ Buyer Warrants ”);
(iii)      a promissory note or loan substantially in the form attached as Exhibit L hereto (the “ Buyer Takeback Paper ”); and
(iv)      a promissory note substantially in the form attached as Exhibit M hereto (the “ GUC Distribution Note ” and, together with the Buyer Purchase Price Common Stock, the Buyer Warrants and the Buyer Takeback Paper, the “ Buyer Securities ”).
The Purchase Price shall be delivered as provided in ‎Section 2.10(a) and will be subject to adjustment as set forth in ‎Section 2.11. For the avoidance of doubt, under no circumstances shall Buyer or any of its Affiliates be obligated to pay cash in satisfaction of the Purchase Price, except as may be required by ‎Section 2.11.

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Section 2.07.      Coal Inventory . (a) For purposes of calculating the coal inventory at the Mining Complexes included in the Purchased Assets as of the Closing Date (in the aggregate and at each Mining Complex) for purposes of calculating the amount of Working Capital and satisfying the Minimum Coal Inventory Condition, the Parties shall jointly engage a reputable third-party engineer or engineering firm that is knowledgeable in determining coal inventory and mutually acceptable to the Parties (the “ Inventory Inspector ”) to determine the coal inventory as of the Closing Date by conducting a visual flight inspection at such locations no more than five Business Days prior to the Closing Date, a report of which shall be delivered to the Parties immediately thereafter.
(b)      The volume of coal inventory at the Mining Complexes included in the Purchased Assets as of the Closing Date for purposes of calculating the Working Capital and satisfying the Minimum Coal Inventory Condition (the “ Closing Date Coal Inventory Volume ”) shall be an amount (in Tons) equal to (x) the amount (in Tons) of coal inventory, in the aggregate, determined by the Inventory Inspector and included in the report delivered to the Parties, minus (y) the aggregate amount (in Tons) of all coal inventory actually shipped to third parties (or where title otherwise passes) during the period beginning immediately following the Inventory Inspector’s inspection of the coal inventory until 12:00 a.m. on the Closing Date plus (z) the amount (in Tons) of coal inventory that is part of the Purchased Assets and as of 12:00 a.m. on the Closing Date is located at, or in transit to, Dominion Terminal Associates, CSX Terminal (Baltimore), Three Rivers Marine Terminal or Lamberts Point, other than coal inventory that was shipped from a Mining Complex after the Inventory Inspector’s inspection of the coal inventory (the coal in this clause (z), the “ Off-Site Coal Inventory ”); provided , that for purposes of determining whether the Minimum Coal Inventory Condition has been satisfied, any Off-Site Coal Inventory will be allocated to the Mining Complex from which such coal inventory originated.
(c)      The Inventory Inspector’s determinations of the amount of coal inventory as of the date of the visual flight inspection shall be final and binding on the Parties unless they mutually agree to an adjustment due to an error in the Inventory Inspector’s calculation that is apparent on the face of such calculation. CoreCo, on the one hand, and NonCoreCo, on the other hand, shall each bear fifty percent (50%) of the fees and expenses of the Inventory Inspector.
Section 2.08.      Closing . The closing (the “ Closing ”) of the purchase and sale of the Purchased Assets and the assumption of the Assumed Liabilities hereunder shall take place at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York, as soon as possible, but in no event later than five Business Days, after satisfaction (or, to the extent permissible, waiver by the Party or Parties entitled to their benefit) of the conditions set forth in ‎Article 10 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of

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those conditions at the Closing), or at such other time or place as Buyer and the Sellers may agree. For purposes of determining any rights or obligations of the Parties that are determined as of the Closing, subject to Section 2.13, the Closing will be deemed to be effective as of 12:00 am on the Closing Date.
Section 2.09.      Delivery of Purchased Assets and Procedure at Closing . At the Closing, Alpha Natural Resources (including with respect to the transfer of beneficial ownership of the Specified Assets), the Applicable ANR Subsidiaries (solely with respect to the transfer of legal title to the Specified Assets to Buyer or the Designated Buyers at Closing) and ReorgCo, as applicable, shall deliver to Buyer and/or the relevant Designated Buyers (unless previously delivered) the following:
(a)      evidence reasonably satisfactory to Buyer that the Pre-Closing Restructuring Steps have been completed, including evidence reasonably satisfactory to Buyer that the Subsidiary Transfers have been completed and that good and marketable title to the Purchased Assets free and clear of all Encumbrances other than Permitted Encumbrances, is vested in Alpha Natural Resources (or, with respect to the Specified Assets, in the ANR Subsidiaries for the benefit of Alpha Natural Resources consistent with ‎Section 5.13(c));
(b)      evidence reasonably satisfactory to Buyer that the Liquidity Condition is satisfied as of the Closing Date;
(c)      evidence reasonably satisfactory to Buyer that the Minimum Coal Inventory Condition is satisfied as of the Closing Date;
(d)      the Included Cash, by wire transfer in United States dollars to an account designated by written notice from Buyer to Alpha Natural Resources no later than five Business Days prior to Closing;
(e)      the General Assignments and Bills of Sale for the Purchased Assets duly executed by Alpha Natural Resources (and, to the extent relating to Specified Assets, the applicable ANR Subsidiaries);
(f)      the Lease Assignment and Assumption Agreements for the Assumed Leases and Purchased Leased Real Property duly executed by Alpha Natural Resources;
(g)      the Contracts Assignment and Assumption Agreements for the Assumed Contracts duly executed by Alpha Natural Resources;
(h)      a special warranty or limited warranty deed (or similar deed to convey title with warranties limited only to grantor’s acts in a particular jurisdiction where the Owned Real Property is located) to the Owned Real Property in recordable form, duly executed by Alpha Natural Resources;

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(i)      all documents of title and instruments of conveyance (duly executed by Alpha Natural Resources) necessary to transfer record and/or beneficial ownership to Buyer and/or the relevant Designated Buyers of all automobiles, trucks and trailers owned by Alpha Natural Resources (and any other Purchased Assets owned by Alpha Natural Resources which require execution, endorsement and/or delivery of a document in order to vest record or beneficial ownership thereof in Buyer and/or the relevant Designated Buyers) which are included in the Purchased Assets;
(j)      the Permit Transfer Agreements duly executed by the applicable Sellers;
(k)      the IP Assignment Agreements duly executed by Alpha Natural Resources;
(l)      the Running Right Trademark License duly executed by Alpha Natural Resources and ReorgCo;
(m)      the Transition Services Agreement duly executed by Alpha Natural Resources and ReorgCo;
(n)      by reasonable advance notice, such other deeds, endorsements, assignments and other instruments (duly executed by Alpha Natural Resources) as are reasonably necessary in the industry of the Purchased Business to vest in Buyer and/or the relevant Designated Buyers good and marketable title to the Purchased Assets free and clear of all Encumbrances other than Permitted Encumbrances, except for special or limited warranty of title as to the Owned Real Property;
(o)      a certificate, dated the Closing Date and signed by an authorized officer of Alpha Natural Resources pursuant to ‎Section 10.02(c) hereof;
(p)      a copy of the Confirmation Order entered by the Bankruptcy Court;
(q)      to the extent not located at facilities included in the Purchased Assets and in the possession of Alpha Natural Resources, original execution copies of all Assumed Leases;
(r)      the certificates contemplated by Section 8.01(e);
(s)      the Workers Compensation and Black Lung Benefits Administration Agreement, duly executed by the applicable Sellers and ReorgCo; and
(t)      all other documents required to be delivered by the Sellers on or prior to the Closing Date pursuant to this Agreement.

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Section 2.10.      Buyer’s Deliveries at Closing . At the Closing, unless previously delivered, Buyer and/or the relevant Designated Buyers shall deliver to Alpha Natural Resources or ReorgCo, as applicable:
(a)      certificates representing the Buyer Purchase Price Common Stock;
(b)      the Buyer Warrants;
(c)      the Buyer Takeback Paper;
(d)      the GUC Distribution Note;
(e)      the General Assignments and Bills of Sale for the Purchased Assets duly executed by Buyer and/or the relevant Designated Buyers;
(f)      the Lease Assignment and Assumption Agreements to Buyer for the Assumed Leases and Purchased Leased Real Property duly executed by Buyer and/or the relevant Designated Buyers;
(g)      the Contracts Assignment and Assumption Agreements for the Assumed Contracts duly executed by Buyer and/or the relevant Designated Buyers;
(h)      the Permit Transfer Agreements duly executed by Buyer and/or the relevant Designated Buyers;
(i)      the IP Assignment Agreements duly executed by Buyer and/or the relevant Designated Buyers;
(j)      the Transition Services Agreement, duly executed by Buyer and/or the relevant Designated Buyers;
(k)      to the extent not previously delivered, binding commitments from sureties sufficient to provide the Scheduled Bonding (it being understood that failure to deliver any such commitments shall not be considered a breach of this Agreement but any such failure to so deliver shall be a failure of the condition set forth in ‎Section 10.03(a))
(l)      a copy of the Confirmation Order entered by the Bankruptcy Court;
(m)      a certificate, dated the Closing Date and signed by the Chief Executive Officer or Chief Financial Officer of Buyer pursuant to ‎Section 10.03(c) hereof;
(n)      the Workers Compensation and Black Lung Benefits Administration Agreement, duly executed by Buyer and/or the relevant Designated Buyers; and

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(o)      all other documents required to be delivered by Buyer and/or the relevant Designated Buyers on or prior to the Closing Date pursuant to this Agreement.
Section 2.11.      Purchase Price Adjustment . (a) Within 30 days after the ReorgCo Transfers Closing Date, CoreCo will prepare and provide to NonCoreCo a written statement (the “ Proposed Final Closing Statement ”) setting forth in reasonable detail CoreCo’s proposed final determination of the Working Capital Adjustment, which will be prepared in a manner consistent with the respective definitions thereof as set forth herein. The amount of coal inventory included in the Working Capital Adjustment will be determined in accordance with ‎Section 2.07 and Exhibit J . CoreCo will cooperate with NonCoreCo and its Representatives in NonCoreCo’s review of the Proposed Final Closing Statement in a manner that will not unreasonably interfere with CoreCo’s and its Affiliates’ business. For purposes of such review, CoreCo will provide NonCoreCo and its Representatives reasonable access at reasonable times and upon reasonable prior notice to the books and records of CoreCo for such purpose.
(b)      The Proposed Final Closing Statement will be final, conclusive and binding on the Parties unless NonCoreCo provides a written notice (a “ Dispute Notice ”) to CoreCo no later than the 10 th day after delivery of the Proposed Final Closing Statement setting forth in reasonable detail (i) any item (other than the amount of coal inventory, subject to the following sentence) on the Proposed Final Closing Statement which NonCoreCo disputes or otherwise believes has not been prepared in a manner consistent with the applicable definition thereof as set forth herein and (ii) the alternative amount calculated by NonCoreCo with respect to such item in a manner consistent with the applicable definition thereof as set forth herein. NonCoreCo shall not be entitled to dispute the amount of coal inventory absent manifest error by CoreCo in regard thereto in connection with the preparation of the Proposed Final Closing Statement. Any item or amount to which no dispute is raised in a Dispute Notice timely delivered will be final, conclusive and binding on the Parties as of the end of such 10 th day.
(c)      CoreCo and the NonCoreCo Representative will attempt to resolve any matters raised in a Dispute Notice in good faith, and any matter as to which CoreCo and the NonCoreCo Representative agree will be final, conclusive and binding on the Parties. Beginning on the 10 th day after delivery of the Dispute Notice, either CoreCo or NonCoreCo may provide written notice to the other that it elects to submit the disputed items to a nationally recognized independent accounting firm chosen by mutual agreement of NonCoreCo and CoreCo (the “ Arbitrator ”) to resolve any disputes with respect to the Working Capital Adjustment; provided that if the parties cannot agree on the identity of the Arbitrator within five days after such written notice, either Party may elect to have the Arbitrator designated by the President of the American Arbitration Association, in which case the Parties agree that the Arbitrator will be the Person

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(s) selected by the President of the American Arbitration Association. The Arbitrator will promptly in accordance with the rules set forth in the Arbitrator’s engagement letter and its customary practices, review only those items and amounts specifically set forth and objected to in the Dispute Notice and that are still in dispute. The Arbitrator shall deliver to CoreCo and NonCoreCo, as promptly as practicable and in any event within 15 days after being engaged, a written report setting forth such calculation. The Arbitrator shall not assign a value to any item in dispute that is greater than the greatest value proposed by CoreCo or NonCoreCo or less than the lowest value proposed by CoreCo or NonCoreCo as set forth in the Proposed Final Closing Statement and the Dispute Notice, respectively. The cost of such review and report shall be borne by CoreCo, on the one hand, and NonCoreCo, on the other hand in inverse proportion as they may prevail on matters resolved by the Arbitrator. The decision of the Arbitrator with respect to the disputed items of the Proposed Final Closing Statement submitted to it will be final, conclusive and binding on the Parties. Each of the Parties to this Agreement agrees to use its reasonable best efforts to cooperate with the Arbitrator (including by executing a customary engagement letter reasonably acceptable to the Arbitrator and the Parties) and to cause the Arbitrator to resolve any such dispute as soon as practicable after the commencement of such Arbitrator’s engagement. The amount of the Working Capital Adjustment as finally determined pursuant to ‎Section 2.11(b) or ‎Section 2.11(c), as applicable, is referred to as the “ Final Working Capital Adjustment ”.
(d)      Promptly, and in any event no later than the fifth Business Day after the determination of the Final Working Capital Adjustment:
(i)      if the Final Working Capital Adjustment is a positive number, CoreCo shall pay to NonCoreCo an amount in cash equal to the absolute value of such sum by wire transfer of immediately available funds to an account designated by NonCoreCo in writing; and
(ii)      if the Final Working Capital Adjustment is a negative number, NonCoreCo shall, and shall cause their Affiliates to, pay to CoreCo an amount in cash equal to the absolute value of such sum by wire transfer of immediately available funds to an account designated by CoreCo in writing.
(e)      The Parties will treat any adjustment payment received pursuant to this ‎Section 2.11 as an adjustment to the Purchase Price for Tax purposes.
Section 2.12.      Withholding . Each Party shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as such Party is required to deduct and withhold under the Code, or any Tax law, with respect to the making of such payment. To the extent that amounts are so deducted and withheld, such amounts shall be treated for all

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purposes of this Agreement as having been paid to the Person in respect of whom such deduction and withholding was made. If any Party determines that any deduction or withholding is required in respect of any amount otherwise payable pursuant to this Agreement, then such Party shall provide written notice to the Person to receive such payment at least 5 Business Days prior to the date on which such payment is to be made with a written explanation substantiating the requirement to deduct and withhold, and such Party shall provide such Person the opportunity within such 5 Business Day period to review and comment on such written explanation and to provide forms or other evidence that would exempt such payment from deduction or withholding. After consultation with NonCoreCo pursuant to the immediately preceding sentence, should CoreCo be required by law to deduct or withhold any amount from the consideration otherwise payable pursuant to this Agreement, NonCoreCo shall pay to CoreCo a sum in cash equal to the amount so required to be deducted or withheld. In no circumstance shall the consultation requirement restrict any Party from deducting or withholding any amount as required by law.
Section 2.13.      Simultaneous Transactions . All actions taken and transactions consummated at the Closing shall be deemed to have occurred simultaneously, and no such transaction shall be considered consummated unless all are consummated; provided that , for the avoidance of doubt, the Restructuring Steps shall, or shall be deemed to, occur at the times and in the sequence set forth in Schedule B.
Section 2.14.      Supplemental Assignments . As reasonably required by a Party in order to effectuate the transactions contemplated by this Agreement, each Party shall also execute and deliver at (and after) the Closing such other assignments, bills of sale, certificates of title and other documents, and shall take such other actions, as are necessary or appropriate, to transfer the Purchased Assets to Buyer and/or the relevant Designated Buyers and otherwise implement and make effective the transactions contemplated by this Agreement.
Section 2.15.      Designated Buyers . The Buyer shall be entitled to designate, in accordance with the terms and subject to the limitations set forth in this ‎Section 2.15, one or more Subsidiaries to (i) purchase specified Purchased Assets (including specified Assumed Contracts and Assumed Leases), (i) assume specified Assumed Liabilities, and/or (i) employ certain Transferred Employees on and after the Closing Date (any such Subsidiary of Buyer that shall be properly designated by Buyer in accordance with this clause, a “ Designated Buyer ”); it being understood and agreed, however, that any such right of Buyer to designate a Designated Buyer is conditioned upon (v) such Designated Buyer executing and delivering to Alpha Natural Resources and ReorgCo a counterpart to this Agreement, (w) such Designated Buyer jointly and severally undertaking the obligations and liabilities of Buyer under this Agreement with respect to the relevant Purchased Assets, Assumed Liabilities and/or Transferred Employees, (x)

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such Designated Buyer being able to perform the applicable covenants under this Agreement, including ‎Section 2.05 and ‎Article 9 (and make the same representations and warranties as Buyer has made in ‎Section 4.05 and ‎Section 4.08 to the extent relating to the relevant portion of the Purchased Business or the Purchased Assets being acquired by such Designated Buyer), and demonstrate satisfaction of the applicable requirements of section 365 of the Bankruptcy Code (to the extent applicable), including the provision of adequate assurance for future performance, with respect to the applicable Assumed Contracts and the Assumed Leases, (y) any such designation not creating any Liability (including any Liability relating to Taxes) for the Sellers or their Affiliates that would not have existed had Buyer purchased the Purchased Assets, assumed the Assumed Liabilities and/or employed the Transferred Employees, and which Liability is (i) not fully reimbursed by or on behalf of Buyer prior to or at the Closing or (ii) a Liability for which Buyer or the applicable Designated Buyer agrees, at its election, to provide an indemnity reasonably acceptable to Seller, and (z) such designation not reasonably being expected to materially delay, prevent or hinder the consummation of the transactions contemplated by this Agreement. No such designation shall relieve Buyer of any of its obligations hereunder. Any breach hereof by a Designated Buyer shall be deemed a breach by Buyer. The above designation shall be made by Buyer by way of a written notice to be delivered to Sellers’ Representative as soon as reasonably practicable after the date hereof and in no event later than the fifth day prior to the Closing Date, which written notice shall contain appropriate information about the Designated Buyer(s) and shall indicate which Purchased Assets, Assumed Liabilities and Transferred Employees Buyer intends such Designated Buyer(s) to purchase, assume and/or employ, as applicable, hereunder.
ARTICLE 3     
REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND REORGCO
Except as set forth in the Disclosure Schedule and subject to ‎Section 12.13, each Seller and ReorgCo represents and warrants, on a joint and several basis with the other Sellers and ReorgCo, to Buyer, as of the date of this Agreement and as of the Closing Date, that:
Section 3.01.      Corporate Existence and Power . Such Seller and ReorgCo is a corporation, limited partnership or limited liability company, as applicable, duly incorporated or duly formed, as applicable, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, as applicable, and each Seller has all corporate or limited liability company powers and all governmental licenses, authorizations, qualifications, permits, consents and approvals required to carry on the Purchased Business as now conducted by such Seller, except for those licenses, authorizations, qualifications, permits, consents and approvals the absence of which would not, individually or in the

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aggregate, reasonably be expected to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby.
Section 3.02.      Corporate Authorization . The execution, delivery and performance by such Seller and ReorgCo of this Agreement and each Transaction Document and the consummation of the transactions contemplated hereby and thereby are within such Seller’s and ReorgCo’s corporate, limited partnership or limited liability company, as applicable, powers and have been duly authorized by all necessary corporate or limited liability company, as applicable, action on the part of such Seller or ReorgCo. Subject to the entry of the Confirmation Order with respect to the Sellers, this Agreement constitutes, and the Transaction Documents to which such Seller and ReorgCo is a party, when executed and delivered by such Seller and ReorgCo will constitute, the valid and binding obligations of such Seller and ReorgCo enforceable against such Seller and ReorgCo in accordance with their terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and general principles of equity that restrict the availability of equitable remedies.
Section 3.03.      Governmental Authorization . The execution, delivery and performance by such Seller and ReorgCo of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby require no filing, application or registration with, or consent, authorization or approval of or other action by or in respect of, any Governmental Authority other than (i) compliance with any applicable requirements of the HSR Act; (i)  filings with, and the appropriate approvals of, the Bankruptcy Court; (i) the transfer or reissuance of the Transferred Permits/Licenses as contemplated by ‎Section 7.03; and (i) any such filing, application, registration, consent, authorization, approval or other action as to which the failure to make or obtain would not reasonably be expected to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby.
Section 3.04.      Noncontravention . Except as set forth on Schedule ‎3.04 , after giving effect to the Confirmation Order, the execution, delivery and performance by such Seller and ReorgCo of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any terms, conditions or provisions in the certificate of incorporation, certificate of formation, bylaws or limited liability company operating agreement (or comparable organizational documents), as applicable, of such Seller or ReorgCo, (i) assuming compliance with the matters referred to in ‎Section 3.03, conflict with or violate any term or provision of Applicable Law, (i) require any consent or other action by any Person under or constitute (with due notice or lapse of time or both) a default (or give rise to any right of termination, right of first refusal or similar right, cancellation or acceleration of any obligation) under any Assumed Contract, Assumed Lease or

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any other Contract of any Seller or any of their Affiliates or (i) result in the creation or imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets under any agreement to which any Seller, any of its Affiliates or its or their properties may be bound, with such exceptions, in the case of clauses ‎(iii) and ‎(iv), as would not, individually or in the aggregate, reasonably be expected to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby.
Section 3.05.      Owned Real Property . (a) Schedule ‎3.05(a) sets forth an accurate and complete list of all real property owned by Sellers or any of their Affiliates and used or held for use primarily in connection with the Purchased Business. The property maps attached to Schedule ‎3.05(a) depict in a materially accurate manner the location and boundaries of the Owned Real Property. True and complete copies of the following have been made available to Buyer prior to the date hereof: (i) all material deeds, title insurance policies, title insurance commitments, title reports, title opinions, title abstracts, maps and surveys relating to the Purchased Real Property in the Seller’s or its Affiliates’ possession, and (i) all documents evidencing recorded and unrecorded Encumbrances upon the Purchased Real Property in the Seller’s or its Affiliates’ possession.
(b)      Subject to the standard warranty limitations as set forth in a special or limited warranty deed, the Sellers have good and marketable title to the Owned Real Property, free and clear of all Encumbrances, except Permitted Encumbrances.
(c)      The Sellers have, and at the Closing Alpha Natural Resources will have, the right to sell, transfer and convey the Owned Real Property to Buyer and/or the relevant Designated Buyers.
(d)      The Sellers have obtained all material easements and rights of way, required to use and operate the Owned Real Property in all material respects in the manner in which the Owned Real Property is currently being used and operated or is currently intended to be used and operated in connection with the Purchased Business. Except as set forth on Schedule ‎3.05(d) , no Seller has since January 1, 2013, received written notice from any Governmental Authority stating an intention to cancel, suspend or modify any material approvals, licenses or permits relating to the Owned Real Property, and no Seller has received such a notice prior to such date that has not been resolved in all material respects.
(e)      No Seller has since January 1, 2013 received written notice of any proposed special assessment which would reasonably be expected to materially affect any of the Owned Real Property, and no Seller has received such a notice prior to such date that has not been resolved in all material respects.
(f)      Except as set in forth in Schedule ‎ 3.05 ‎(f) , no Seller has received written notice of, and no Seller has Knowledge of, any claims, causes of action,

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lawsuits or legal proceedings pending or, to the Knowledge of any Seller, threatened regarding the ownership, use or possession of the Owned Real Property, including subsidence claims, condemnation, expropriation or similar proceedings, that, in any such case, would reasonably be expected to be material to the Purchased Business. To the Knowledge of Sellers, no Seller’s use and operation of the Owned Real Property in the ordinary course of business as currently conducted violates, in any material respect, any Applicable Laws, and all facilities on the Owned Real Property are constructed, occupied and used by the Sellers in compliance, in all material respects, with all Applicable Laws.
(g)      Except as set forth in Schedule ‎3.06(a)(i) , no Seller is party to any lease or assignment under which such Seller is a lessor or sublessor with respect to the Owned Real Property, and the Owned Real Property is not made available for use by any third party.
(h)      Except as set forth in Schedule ‎Section 3.05‎(h) , there are no outstanding options or rights of first refusal to purchase any of the Owned Real Property or any interest therein.
Section 3.06.      Leases and Leased Real Property . (a) Schedule ‎3.06(a)(i) contains a true and complete list of (x) all the Leases held by the Sellers or any of their Affiliates and used by any Seller or any Affiliate of such Seller in the operation of the Purchased Business and (y) recording information for the Assumed Leases that have been recorded, and, to the Knowledge of the Sellers, the Assumed Leases have not been amended or modified, assigned or subleased except as set forth on Schedule ‎3.06(a)(i) . Except as to the Nicholas Complex, which is addressed in ‎Section 7.12, to the Knowledge of the Sellers, the property maps attached to Schedule ‎3.06(a)(i) include a depiction in a materially accurate manner of the location and boundaries of the Purchased Leased Real Property. Schedule ‎3.06(a)(ii) contains a true and complete list of (x) each application by any Seller or any of its Affiliates for a lease from the U.S. government or any agency or instrumentality thereof that is in progress and that is intended to be used or held for use in connection with the Purchased Business and (y) any such lease currently used or held for use by any Seller or any of its Affiliates. Schedule ‎3.06(a)(iii) contains a true and complete list of all prepaid royalties and un-recouped minimum royalties for each Assumed Lease as of January 31, 2016. A true and complete copy of each Assumed Lease, including all material amendments and exhibits, has heretofore been made available to Buyer. Each of the Assumed Leases is in full force and effect and constitutes a valid and binding obligation of each applicable Seller and, to such Seller’s Knowledge, the other parties thereto. The leasehold estate created by each Assumed Lease is free and clear of all Encumbrances created by, through or under the applicable Seller other than Permitted Encumbrances. Except as disclosed in Schedule ‎3.06(a)(iv) , there are no material defaults, breaches or uncured violations by any Seller under any of the Assumed Leases, including any lost coal events or lost natural gas events, and no

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event has occurred that (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a material default, breach or uncured violation by any Seller under any Assumed Lease, including any lost coal events or lost natural gas events, except for any such defaults or breaches that would be cured through payment of the Cure Costs. To the Knowledge of the Sellers, except as disclosed in Schedule ‎3.06(a)(iv) , there are no material defaults, breaches or uncured violations by any other party, or any events, which with notice, the passage of time or both, would constitute such material defaults, breaches or violations by any other party under any of the Assumed Leases, except for any such defaults or breaches that would be cured through payment of the Cure Costs or arising solely as a consequence of the Bankruptcy Case. To the Knowledge of the Sellers, there are no existing disputes between any Seller and any other party to any of the Assumed Leases or, to the Knowledge of the Sellers, any party having rights under or with respect to the Assumed Leases that are expected to result in a claim of material default or breach or termination thereof, except for any such defaults or breaches that would be cured through payment of the Cure Costs. Each applicable Seller has paid all rent, royalties, and other payments due and payable under each Assumed Lease, and has otherwise complied in all material respects with the Assumed Leases, and such Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy any such Purchased Leased Real Property or any portion thereof, except for any such non-payments that would be cured through payment of the Cure Costs. Since January 1, 2013, no Seller has received any written notice that there exists any default, breach, violation, lost coal claim or lost natural gas claim or condition which with the passage of time would constitute a default, breach, violation or lost coal claim or lost natural gas claim on the part of any Seller under any Assumed Lease. Except as disclosed in Schedule ‎3.06(a)(iv) or in connection with the Cure Costs, no Seller has received any notice in writing, and has no Knowledge, that any lessor or landlord will cancel, terminate, or fail to perform its obligations under the Assumed Leases.
(b)      There are no outstanding options or rights of first refusal to purchase or sublease any of the Sellers’ interest in the Assumed Leases or any interest therein.
(c)      The Sellers have obtained all material easements and rights of way, including proofs of dedication, required to use and operate the Purchased Leased Real Property in all material respects in the manner in which the Purchased Leased Real Property is currently being used and operated. Except as set forth on Schedule ‎3.06(c) , since January 1, 2013, no Seller has received written notice from any Governmental Authority stating an intention to cancel, suspend or modify any material approvals relating to the Purchased Leased Real Property, and no such notice has been received prior to such date that is not resolved in all material respects.

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Section 3.07.      Licenses and Permits . (a) Set forth on Schedule ‎3.07(a) is a complete list of: (i) all of the mining permits, drilling permits and other permits used or held for use by the Sellers or any of their Affiliates in the operation of the Purchased Business and Purchased Assets, together with a description of the permitted property or facility, together with a true and complete list of all pending applications for additional permits, renewals of existing permits or amendments to existing permits, which have been submitted to any Governmental Authority or other entity by any Seller or any of its Subsidiaries applicable to the operation of the Purchased Business (all such permits being herein referred to as the “ Permits ”); (ii) the applicable reclamation bonds, letters of credit or other sources of collateral or financial assurance with respect to each Permit and the amount thereof with respect to each Permit and (iii) all of the material licenses, qualifications, franchises, certificates, consents, authorizations, approvals, orders, and concessions used or held for use by the Sellers or any of their Subsidiaries in connection with the operation of the Purchased Business, together with a true and complete list of all pending applications for additional licenses, renewals of existing licenses, or amendments to existing licenses, which have been submitted to any Governmental Authority or other entity by any Seller or any of their Subsidiaries applicable to the operation of the Purchased Business (herein referred to as the “ Licenses ”), as amended, supplemented and modified through the Effective Date.
(b)      The Transferred Permits/Licenses constitute all of the material governmental approvals, clearances and authorizations necessary for the operation of and the conduct of the Purchased Business and the Purchased Assets as presently operated and conducted by Sellers or currently contemplated to be operated and conducted by Sellers within the next six months, and all of the Transferred Permits/Licenses are, to the Knowledge of the Sellers, final, unappealed, valid, in good standing and in full force and effect, except where the failure to be final, unappealed, valid, in good standing and in full force and effect would not reasonably be expected to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby. The Sellers and their Subsidiaries are in material compliance with the Transferred Permits/Licenses. Except as set forth on Schedule ‎3.08(a) , no suspension, revocation, cancellation, modification (including revision to effluent limits), or limitation of any of the Transferred Permits/Licenses is, to the Knowledge of the Sellers, threatened or contemplated, except with respect to regular periodic expirations and renewals thereof, which renewals no Seller or any Subsidiary of such Seller has reason to believe will not be granted. No Seller or any Subsidiary of such Seller has had any Transferred Permits/Licenses, or any applications therefor, appealed, denied, revoked, restricted or suspended and no Seller or any Subsidiary of such Seller is currently a party to any proceedings involving the possible appeal, denial, revocation, restriction or suspension of any Transferred Permits/Licenses or any of the privileges granted thereunder. No Seller or any Affiliate of such Seller, nor any officer or director thereof, is permit blocked on

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the AVS (or any applicable state equivalent database or system) by any Governmental Authority, except with respect to permit blocks arising from immaterial violations of Applicable Laws that would not reasonably be expected to entail more than de minimis cost or period of time to cure. Except as set forth on Schedule ‎3.08(a) , to the Knowledge of the Sellers, no non-governmental organization, citizens group or other third party has notified Sellers or any Governmental Authority or threatened to (i) sue Sellers or any Governmental Authority with respect to any existing or pending Permit or (ii) appeal any existing Permit or pending application for a Permit, in each case of clauses (i) and (ii), except for such suits or appeals that are fully resolved without any ongoing obligations or liabilities or as would not reasonably be expected to be material to the Purchased Business (or, in the case of notices or threats prior to January 1, 2013, as would not reasonably be expected to have a Material Adverse Effect).
(c)      Except as set forth on Schedule ‎3.07(c) , to the Knowledge of Sellers, there are no Overlapping Transferred Permits/Licenses.
(d)      Except as set forth on Schedule ‎3.07(d) , there are no bonds, letters of credit or other sources of collateral or financial assurance that secure obligations relating to the Purchased Business or any Purchased Asset.
Section 3.08.      Environmental . (a) Except as set forth on Schedule ‎3.08(a) and as otherwise would not reasonably be expected to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby: (i) since January 1, 2013, no written notice, order, request for information, complaint or other communication or penalty has been received by any Seller or any of its Affiliates with respect to the compliance of the Purchased Business or the Purchased Assets with any Environmental Laws or liability under any Environmental Laws, and there are no Actions (including any water audits) pending or threatened in writing, in each case, that allege a violation by or liability of, whether assumed contractually or by operation of Law, the Purchased Business or the Purchased Assets of or under any Environmental Law; and (i) the Purchased Business and the Purchased Assets are and, since January 1, 2013, have been in compliance with all applicable Environmental Laws.
(b)      No Seller or any of its Affiliates, or, to the Knowledge of the Sellers, no other Person has released, stored, deposited, discharged, buried, dumped or disposed of Hazardous Materials on or beneath the Purchased Assets, or from the Purchased Assets into the environment, except for such quantities of Hazardous Materials released, stored, deposited, discharged, buried, dumped or disposed of in the ordinary course of business, in material compliance with Environmental Laws and so as would not reasonably be expected to require any material remediation, investigation or other response action pursuant to Environmental Law.

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(c)      Without in any way limiting the generality of the foregoing, to the Knowledge of the Sellers, (i) other than as may contain substances in quantities not regulated by Environmental Law, all underground storage tanks and above ground storage tanks, and the capacity and contents of such tanks, located on any Purchased Asset are specifically identified on Schedule ‎3.08(c) , (i) other than as contained substances in quantities not regulated by Environmental Law, all former underground storage tanks have been removed from or closed in place at the Purchased Assets in compliance with Applicable Law and those removed or closed in place since January 1, 2013 are listed on Schedule ‎3.08(c) , (i) all PCBs or items containing PCBs in regulated amounts used or stored on any Purchased Assets are identified on Schedule ‎3.08(c) , (i) with respect to the Purchased Assets, there are no underground injection wells, radioactive materials or septic tanks or waste disposal pits in which any Hazardous Materials have been discharged or disposed, other than as have been used in the ordinary course of business, in compliance in all material respects with all Environmental Laws, and as would not reasonably be expected to require any material remediation or investigation pursuant to Environmental Law and (v) none of the Purchased Assets have any associated acid mine drainage that constitutes a violation or could reasonably be expected to give rise to material liability under Environmental Law.
(d)      Schedule ‎3.08(d) sets forth a true, complete and accurate list of all consent decrees, decisions, judgments, settlements, consent orders, stipulations, decrees or similar orders (“ Consent Decrees ”) issued, entered or executed by a Governmental Authority pursuant to Environmental Law and (i) by which any Seller or any of its Affiliates is bound or is a party, or (ii) with respect to which any Purchased Asset is subject. The Sellers and their Affiliates are, and since January 1, 2013 have been, in compliance in all material respect with all such Consent Decrees. Since January 1, 2013, no Seller or any of its Affiliates has received an written notification, or to the Knowledge of Seller any other notice, from any Governmental Authority alleging any violation or noncompliance with any such Consent Decree.
Section 3.09.      Title to the Purchased Assets . (a) Subject to the terms of the Confirmation Order, upon consummation of the transactions contemplated hereby, including the transfer or reissuance of the Transferred Permits/Licenses as contemplated by ‎Section 7.03, Buyer and/or the relevant Designated Buyers will have acquired good and marketable title in and to, or a valid leasehold interest in, each of the Purchased Assets, free and clear of all Encumbrances, except for Permitted Encumbrances. There are no material unrecorded Encumbrances relating to the Purchased Real Property other than Permitted Encumbrances.
(b)      Except for the rights and/or services to be provided under the Transition Services Agreement and the Permit Transfer Agreements, the Purchased Assets constitute all of the material property and assets used or held

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for use by Sellers or their Affiliates in connection with the Purchased Business, except for the Specifically Excluded Assets. The Purchased Assets, when taken together with the Specifically Excluded Assets (disregarding Buyer’s right to exclude Assumed Contracts pursuant to Section ‎2.05(d)) and the rights of Buyer (and/or any applicable Designated Buyers) under any of the Transaction Documents, when utilized by a labor force substantially similar to that employed by Sellers and their Affiliates in connection with the conduct of the Purchased Business as of the date of this Agreement, are sufficient to permit the Buyer to conduct the Purchased Business immediately following the Closing in substantially the same manner as conducted by Sellers as of the date of this Agreement and as currently contemplated by Sellers to be conducted in the next six months, including all mining, processing, loading, transporting, marketing and selling of coal and all reclamation activities.
(c)      There are no controlled Affiliates of Alpha Natural Resources that are not Subsidiaries of Alpha Natural Resources. No Subsidiary of Alpha Natural Resources owns any material asset, property or right that would have been a Purchased Asset if such Subsidiary had been a Seller hereunder.
(d)      Notwithstanding any other provision of this Agreement, immediately prior to Closing, (A) Alpha Natural Resources (i) will own all of the Purchased Assets (other than those Specified Assets held by ANR Subsidiaries consistent with ‎Section 5.13(c)) and no other assets, properties or rights and (i) will have the Assumed Liabilities and no other Liabilities, (B) ReorgCo will have assumed, subject to the discharge under section 1141 of the Bankruptcy Code and the other terms of the Plan of Reorganization and the Confirmation Order, all Liabilities of Alpha Natural Resources other than the Assumed Liabilities and (C) the outstanding equity and indebtedness of Alpha Natural Resources will be as reflected on Schedule ‎3.09(d).
Section 3.10.      Contracts . (a) Except as set forth on Schedule ‎3.10 , no Seller or any Affiliate of such Seller is a party to or bound by any of the following Contracts with respect to the Purchased Business (each, a “ Material Contract ”):
(i)      any Contract for capital expenditures or the acquisition or construction of fixed assets which requires annual payments in excess of $750,000 or aggregate payments in excess of $2,500,000;
(ii)      any Contract prohibiting or restricting the ability of the Sellers or any of its Affiliates to conduct their businesses, to compete in any line of business or to engage in any business or operate in any geographical area or prohibiting or limiting the ability of any Person to compete with the Sellers or the Purchased Business;
(iii)      any Contract (or group of contracts relating to the same site) requiring annual payments or expenditures in excess of $1,000,000

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and relating to cleanup, abatement, remediation or similar actions in connection with environmental Liabilities;
(iv)      any Contract or commitment providing for an interest rate, currency or commodity swap, derivative, hedge, forward purchase or sale or other transaction similar in nature or effect or relating to any off-balance sheet financing;
(v)      any Contract under which any of the Sellers or any of their Affiliates are (i) lessees of, or hold or use, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, or (ii) lessors of any tangible personal property owned by the Purchased Business, in each case which requires annual payments in excess of $600,000 or aggregate payments in excess of $1,800,000;
(vi)      any Contract to mine, process, store, load or transport coal or natural gas;
(vii)      any Contract for the sale of coal or natural gas;
(viii)      any Contract guaranteeing any Indebtedness of any Seller or any of their Affiliates;
(ix)      any Contract with any Related Party;
(x)      any Contract (including consent decrees, consent orders and similar agreements) with any Governmental Authority;
(xi)      any Contract under which any Seller or any of its Affiliates has made any advance, loan, extension of credit or capital contribution to, or other investment in, a Person with respect to the Purchased Business (other than extensions of trade credit in the ordinary course of business), in any such case which, individually, is in excess of $600,000;
(xii)      any Contract for the sale of any material asset of the Purchased Business (other than sales of coal in the ordinary course of business);
(xiii)      any Contract pursuant to which any Seller or any of its Affiliates (A) obtains the right to use, or a covenant not to be sued under, any Intellectual Property Right material to the conduct of the Purchased Business (excluding licenses for commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms and which have an aggregate acquisition cost of $250,000 or less) or (B) grants the right to use, or a covenant not to be sued under, any material Intellectual Property Right included in the Purchased Assets;

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(xiv)      any other Contract to which any Seller or any of its Affiliates is a party or by or to which such Seller or any of its Affiliates or any of the Purchased Assets or the Purchased Business is bound or subject that requires aggregate payments, or right of payment, to any Person in excess of $1,000,000 that cannot be terminated on not more than sixty (60) days’ notice without payment of any penalty; or
(xv)      any other Contract that is material to the Purchased Business or was not entered into in the ordinary course of business.
(b)      Sellers have heretofore made available to Buyer true and complete copies of each Material Contract (or written descriptions thereof that are accurate and complete in all material respects with respect to oral Assumed Contracts). Each Assumed Contract to which a Seller or any Affiliate of a Seller is a party constitutes a valid and binding agreement of such Seller or such Affiliate and to, to the Knowledge of the Sellers, the other party thereto and is in full force and effect. To the Knowledge of the Sellers, there are no defaults, breaches or uncured violations that will lead to a termination of any Assumed Contract, except for any such defaults or breaches that will be cured upon payment of the Cure Costs. To the Knowledge of the Sellers, there are no events, which with notice, the passage of time or both, would constitute any such default, breach or uncured violation that would lead to termination under any Assumed Contract, except for any such defaults or breaches that will be cured upon payment of the Cure Costs or arising solely as a consequence of the Bankruptcy Case. No Seller has received any written notice that any of the other parties to the Assumed Contracts will cancel, terminate or fail to perform such Party’s obligations under any of the Assumed Contracts, except where such cancellation, termination or failure to perform would not reasonably be expected, individually or in the aggregate, to be material to the Purchased Business.
Section 3.11.      Financial Statements . (a) The income statement for the twelve-month period ended December 31, 2015 and the balance sheet dated December 31, 2015 uploaded by the Sellers to the Data Room as of the date hereof (collectively, the “ Financial Statements ”) were prepared in accordance with GAAP consistently applied throughout the periods involved (except as indicated in any notes thereto) and present fairly, in all material respects, the financial position and results of operations of Alpha Natural Resources and its Subsidiaries for the periods specified therein, subject to normal year‑end adjustments. The financial information set forth on Schedule ‎3.11(a) is accurate and complete in all material respects.
(b)      The amount of Working Capital Target was calculated as set forth on Schedule ‎3.11‎(b).
Section 3.12.      Ordinary Course of Business . Except as set forth on Schedule ‎3.12 or as expressly contemplated by this Agreement, and other than in

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connection with the Bankruptcy Case, since December 31, 2015 (the “ Reference Date ”) through the Effective Date, (x) the Sellers and their Affiliates have conducted the Purchased Business in the ordinary course of business in all material respects, (y) there has not been any change, event, set of circumstances or facts that have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (z) except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, none of the Sellers nor any of their Affiliates has taken any action since the Reference Date and prior to the Effective Date that, if taken during the period from the Effective Date through the Closing without Buyer’s consent would constitute a breach of ‎Section 5.01 or ‎Section 5.02.
Section 3.13.      Buildings and Improvements . The buildings, improvements, loadout facilities, structures and other fixtures, used in the Purchased Business, and located on the Purchased Real Property, are in as good an operating condition and state of repair, normal wear and tear excepted, except as would not reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule ‎3.13 and except as would not reasonably be expected to have a Material Adverse Effect, no Seller or any of its Subsidiaries has received written notice or, to the Knowledge of the Sellers, oral notification (that has not been resolved or abandoned) which states that a Seller or any of its Subsidiaries is, with respect to the Purchased Business, in violation of any applicable building, zoning, subdivision, platting, fire, insurance, safety, health or other Applicable Laws, ordinances or regulations in respect of its inventories, supplies, plants or structures, Purchased Real Property or the operation of any of the foregoing.
Section 3.14.      Equipment and Fixed Assets . (a) The Sellers and their Subsidiaries have good and marketable title to all Equipment and Fixed Assets, free and clear of all Encumbrances other than Permitted Encumbrances, except where the failure to have such good and marketable title would not reasonably be expected, individually or in the aggregate, to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby.
(b)      Except as would not reasonably be expected to have a Material Adverse Effect, all Equipment and Fixed Assets are in good operating condition and state of repair for the purposes for which they are used by the Sellers and their Subsidiaries in the operation of the Purchased Business, normal wear and tear excepted.
Section 3.15.      Insurance . Schedule ‎3.15 sets forth a list of all insurance policies maintained by the Sellers for the benefit of the Purchased Assets and Purchased Business (collectively, the “ Insurance Policies ”). The Sellers have heretofore made available to Buyer copies of the Insurance Policies. As of the date hereof, there are no material claims related to the Purchased Business, the

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Purchased Assets or the Assumed Liabilities pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights that would reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement, no Seller or Subsidiary of such Seller has received any written notice of cancellation of, a material premium increase with respect to, or material alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if not yet due, accrued. All such Insurance Policies are in full force and effect and enforceable in accordance with their terms. No Seller is in default under, or has otherwise failed to comply with, any material provision contained in any such Insurance Policy.
Section 3.16.      Litigation, Investigations and Claims . (a) Schedule ‎3.16(a) sets forth a true, complete and correct list of all existing and pending litigation, arbitrations, judgments, court orders, decrees, injunctions, administrative orders, claims, disputes, processes or other Actions against or by or related to any Seller (or any of its Affiliates) or against or related to the Purchased Assets or the operation of the Purchased Business (collectively “ Litigation ”) which would reasonably be expected, individually or in the aggregate, to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby. Except as set forth on Schedule ‎3.16(a) and except for any order entered by the Bankruptcy Court, there are no facts or circumstances that would reasonably be expected to give rise to any Litigation that, individually or in the aggregate, would reasonably be expected to be material to the Purchased Business or materially delay or impair any of the transactions contemplated hereby.
(b)      Except as set forth on Schedule ‎3.16(b) , as of the date of this Agreement, there is no formal investigation, cessation order or notice of violation or other Action pending, or to the Knowledge of the Sellers threatened, against the Purchased Assets or the operation of the Purchased Business or that, in any case, would reasonably be expected, individually or in the aggregate, to be material to the Purchased Business or to prevent, hinder or delay the consummation of the transactions contemplated by this Agreement or any of the Transaction Documents.
(c)      No Seller (or Subsidiary of such Seller) is, or since January 1, 2013 has been, in default in respect of any order, writ, injunction, decree or process of any arbitrator or Governmental Authority, which default would reasonably be expected, individually or in the aggregate, be material to the Purchased Business or to prevent, hinder or delay the consummation of the transactions contemplated by this Agreement or any of the Transaction Documents.
Section 3.17.      Laws and Regulations . The Sellers and their Subsidiaries are, and since January 1, 2013, the Sellers and their Subsidiaries have been, in

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compliance in all material respects with all Applicable Laws and Transferred Permits/Licenses relating to the Purchased Business or the Purchased Assets, except (i) as explicitly disclosed in Schedule ‎3.17 or (i) for violations that, individually or in the aggregate, have not had and would not reasonably be expected to have a material impact upon the Purchased Business or to prevent, hinder or delay the consummation of the transactions contemplated by this Agreement or any of the Transaction Documents. Except as set forth on Schedule ‎3.17 , since January 1, 2013, no Seller (or any Affiliate of such Seller) has received (i) any written notification from any Governmental Authority (x) asserting that a Seller (or an Affiliate of such Seller) is in violation of any Applicable Laws which such Governmental Authority enforces or (y) threatening to revoke, suspend or modify any Transferred Permits/Licenses or (ii) any written notice from any Governmental Authority stating any Transferred Permits/Licenses held or being sought, amended or renewed will be denied by the applicable Governmental Authority.
Section 3.18.      Tax Matters . (a) With respect to the Purchased Business and the Purchased Assets, the Sellers have filed or caused to be filed all material Tax Returns required to have been filed by the Sellers with respect to, by or for the Sellers, the Purchased Business or the Purchased Assets for the period prior to the Closing except for those Tax Returns for which the filing date has not yet passed. All such Tax Returns are correct and complete in all material respects and were prepared in substantial compliance with all Applicable Laws. Sellers have paid all Taxes that have become due pursuant to those Tax Returns or pursuant to any assessment or adjustment made with respect thereto. There are no unpaid Taxes due and owing by Sellers or by any other Person (including, without limitation, any corporation with which Sellers file or have filed a consolidated, combined, or unitary return) that are or could reasonably be expected to become an Encumbrance on the Purchased Assets or otherwise adversely affect the operation of the Purchased Business. Sellers have collected or withheld all amounts required to be collected or withheld by Sellers for all Taxes or assessments, and all such amounts have been paid to the appropriate Taxing Authority or set aside in appropriate accounts for future payment when due. No claim has been made by any Taxing Authority in a jurisdiction where the Sellers do not file Tax Returns with respect to the Purchased Business or the Purchased Assets that the Sellers are or may be subject to taxation by that jurisdiction with respect to the Purchased Business or the Purchased Assets. The Sellers have not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, in each case, if it would have an adverse impact on the Purchased Assets or the Purchased Business or subject Buyer or any of its Affiliates to any Tax Liability after the Closing.
(b)      Except as set forth on Schedule 3.18(b) , there is no material dispute or claim concerning any Tax liability of the Sellers claimed or raised by any Taxing Authority in writing.

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(c)      Each Seller is a United States Person within the meaning of Section 7701 of the Code.
Section 3.19.      Intellectual Property. (a) Schedule ‎2.01(m) fully and accurately identifies all of the following included in the Owned Intellectual Property Rights (which constitutes all of the material registered, issued and applied for Intellectual Property Rights that are used or held for use in the Purchased Business and are owned by a Seller or any of its Affiliates, other than the Seller Name): (i) all trademark, trade name, service mark and domain name registrations and applications for registration, and all material unregistered trademarks, trade names and service marks; (i) all patents and patent applications; and (i) all registered copyrights. Sellers and their Subsidiaries are the sole owners of all of the Owned Intellectual Property Rights and there exist no material restrictions on the disclosure, use, license or transfer of any of the Owned Intellectual Property Rights. Each applicable Seller, and each applicable Subsidiary thereof, validly owns, is validly licensed under, or otherwise has legal right to use all of the Purchased Intellectual Property. The rights of the Sellers and their Subsidiaries in the Purchased Intellectual Property are valid and in good standing, are owned (or the licenses thereunder are held) free and clear of all Encumbrances (other than Permitted Encumbrances), and will not be adversely and materially affected by the transactions contemplated by this Agreement.
(b)      Except as set forth on Schedule ‎3.19(b) , to the Knowledge of the Sellers, the conduct of the Purchased Business does not infringe, misappropriate, misuse or otherwise violate the Intellectual Property Rights of any Person, and has not done so since January 1, 2013. There is no claim, proceeding or legal action pending against or, to the Knowledge of the Sellers, threatened in writing against, any Seller or any Subsidiary (i) alleging that any Seller or any Subsidiary has infringed, misappropriated, misused or otherwise violated any Intellectual Property Right of any Person in connection with the conduct of the Purchased Business, or (i) challenging or seeking to deny, revoke or limit any Seller’s or Subsidiary’s rights in any of the Purchased Intellectual Property. To the Knowledge of the Sellers, no Person is infringing, misappropriating, misusing or otherwise violating the rights of Sellers and their Subsidiaries in the Purchased Intellectual Property in any material respect (or has done so at any time since January 1, 2013).
Section 3.20.      Finders’ Fees . Except for Rothschild, Inc., whose fees and expenses will be paid by the Sellers, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Sellers, ReorgCo or any of their respective Affiliates who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement.

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Section 3.21.      FCPA Matters . In connection with the operation of the Purchased Business, no Seller or any Subsidiary of such Seller or, to the Knowledge of the Sellers, any director, officer, agent, employee or Affiliate of the Sellers or any of their Affiliates, is aware of or has taken any action, directly or indirectly, with respect to the Purchased Business that would result in a violation of the Foreign Corrupt Practices Act of 1977 (the “ FCPA ”). The Sellers, their Subsidiaries and, to the Knowledge of the Sellers, their Affiliates have conducted the Purchased Business in material compliance with the FCPA and maintain procedures which are reasonably expected to ensure compliance therewith.
Section 3.22.      ReorgCo . Since the date of its incorporation, ReorgCo has not engaged in any activities, other than in connection with this Agreement and the ReorgCo Transfers.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Except as set forth in the Disclosure Schedule and subject to ‎Section 12.13, Buyer represents and warrants to the Sellers, as of the date of this Agreement and as of the Closing Date, that:
Section 4.01.      Corporate Existence and Power . Buyer is a corporation duly formed, validly existing and in good standing under the laws of its jurisdiction of formation and has all corporate powers and all material governmental licenses, authorizations, qualifications permits, consents and approvals required to carry on its business as now conducted.
Section 4.02.      Corporate Authorization . The execution, delivery and performance by Buyer of this Agreement and the Transaction Documents and the consummation of any of the transactions contemplated hereby and thereby are within the corporate powers of Buyer and have been duly authorized by all necessary corporate action on the part of Buyer. Subject to the entry of the Confirmation Order, this Agreement constitutes, and the Transaction Documents to which Buyer is a party, when executed and delivered by Buyer will constitute, the valid and binding obligations of Buyer enforceable against Buyer in accordance with their terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and general principles of equity that restrict the availability of equitable remedies. Buyer has the requisite approval and authority of the Pre-Petition Lenders to execute, deliver and perform this Agreement and the Transaction Documents and consummate any of the transactions contemplated hereby and thereby, including effectuating the Credit Release.
Section 4.03.      Governmental Authorization . The execution, delivery and performance by Buyer of this Agreement and each of the Transaction Documents

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and the consummation of any of the transactions contemplated hereby and thereby require no material filing, application or registration with, or consent, authorization or approval of or other action by or in respect of any Governmental Authority other than (i) compliance with any applicable requirements of the HSR Act, (i) filings with, and the appropriate approvals of, the Bankruptcy Court and (i) the transfer or reissuance of the Transferred Permits/Licenses as contemplated by ‎ Section 7.03 and (i) as set forth in Schedule ‎4.03 .
Section 4.04.      Noncontravention . Except as set forth on Schedule ‎ 4.04, the execution, delivery and performance by Buyer of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any terms, conditions or provisions in the certificate of incorporation or bylaws of Buyer, (i) assuming compliance with the matters referred to in ‎Section 4.03, conflict with or violate any term or provision of Applicable Law or (i) constitute (with due notice or lapse of time or both) a default (or give rise to any right of termination, right of first refusal or similar right, cancellation or acceleration of any right or obligation) under any Contract binding upon Buyer, except, in the case of this clause ‎(iii), as would not reasonably be expected, individually or in the aggregate, to materially delay the ability of Buyer to consummate the transactions contemplated in this Agreement and, in each case, after giving effect to the Confirmation Order.
Section 4.05.      Adequate Assurances Regarding Assumed Contracts . As of the Closing, Buyer and/or each relevant Designated Buyer, as applicable, will be capable of satisfying the conditions contained in sections 365(b)(1)(C) and 365(f)(2)(B) of the Bankruptcy Code with respect to the Assumed Contracts and Assumed Leases. To the knowledge of Buyer, there exist no facts or circumstances that would cause, or be reasonably expected to cause, Buyer or any Designated Buyer not to qualify as a “good faith” purchaser under Section 363(m) of the Bankruptcy Code.
Section 4.06.      Litigation . As of the date hereof, there is no action, suit, investigation or proceeding pending against, or to the Knowledge of Buyer threatened against or affecting, Buyer before any arbitrator or any Governmental Authority which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by this Agreement.
Section 4.07.      Finders’ Fees . Except for Ducera Partners LLC, whose fees will be paid by Sellers, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of Buyer who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement.
Section 4.08.      Assurances Regarding Permits . As of the Closing, Buyer and/or the relevant Designated Buyers, as applicable, (i) will be eligible to take transfer of, or obtain a replacement for, the Transferred Permits/Licenses, (i)  will

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be eligible to act as a contract operator of the Transferred Permits/Licenses during the Interim Period, (i) will not be listed on the AVS (or any applicable state equivalent system or database) and/or (i) will not have been denied any application for any mining license, mining permit or other governmental authorization by any Governmental Authority due to application of the AVS (or any applicable state equivalent system or database), other than any denial for violations that may reasonably be expected to be cured by the time of such transfer or obtaining of permits as contemplated by ‎Section 7.03.
Section 4.09.      Buyer Securities . (a) The authorized capital stock of Buyer consists of 20,000,000 shares of Buyer Common Stock and 2,000,000 shares of preferred stock (“ Buyer Preferred Stock ”). As of the date hereof, after giving effect to the transactions contemplated hereby, there will be outstanding 10,000,000 shares of Buyer Common Stock. All outstanding shares of capital stock of Buyer have been duly authorized and validly issued, fully paid and nonassessable and free of preemptive rights.
(b)      Except as set forth in this ‎Section 4.09, there are no outstanding (i) shares of capital stock or voting securities of Buyer, (i) securities of Buyer convertible into or exchangeable for shares of capital stock or voting securities of Buyer or (i) options or other rights to acquire from Buyer or other obligation of Buyer to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Buyer.
(c)      The Buyer Purchase Price Common Stock to be issued as part of the Purchase Price has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable.
(d)      The Buyer Warrants and the Buyer Takeback Paper to be issued as part of the Purchase Price have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will constitute the valid and binding obligations of Buyer enforceable against Buyer in accordance with their terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and general principles of equity that restrict the availability of equitable remedies.
Section 4.10.      Inspections; No Other Representations . Buyer is an informed and sophisticated purchaser, and has engaged expert advisors, experienced in the evaluation and purchase of property and assets such as the Purchased Assets as contemplated hereunder. Buyer has undertaken such investigation and, to Buyer’s Knowledge, has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. Buyer will undertake prior to

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Closing such further investigation and request such additional documents and information as it deems necessary. Without reliance upon any express or implied representations or warranties of any nature made by or on behalf of or imputed to the Sellers, except as expressly set forth in this Agreement, Buyer acknowledges and agrees that the Purchased Assets are sold “as is” and Buyer agrees to accept the Purchased Assets and the Purchased Business in the condition they are in on the Closing Date based on its own inspection, examination and determination with respect to all matters. Without limiting the generality of the foregoing, Buyer acknowledges that the Sellers make no representation or warranty with respect to (i) any projections, estimates or budgets delivered to or made available to Buyer of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the Purchased Business or the future business and operations of the Purchased Business or (ii) any other information or documents made available to Buyer or its counsel, accountants or advisors with respect to the Purchased Business, except as expressly set forth in this Agreement. Nothing in this ‎Section 4.10 shall be construed to mean that Buyer is not entitled to rely on Seller’s representations, warranties and covenants set forth in this Agreement (whether or not so captioned or denominated).
ARTICLE 5
COVENANTS OF THE SELLERS AND NONCORECO
Section 5.01.      Conduct of the Purchased Business . Except as expressly permitted by this Agreement or as consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed) and to the extent not inconsistent with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, any orders entered by the Bankruptcy Court in the Bankruptcy Case ( provided that the Sellers shall (x) not, without the prior written consent of Buyer, seek any order of the Bankruptcy Court requiring them to refrain from taking any action described in this ‎Section 5.01 and (y) use their commercially reasonable efforts to oppose any motion or other request seeking such an order of the Bankruptcy Court) or other Applicable Law, from the date hereof through the Closing, the Sellers shall, and shall cause their Subsidiaries to, (1) use commercially reasonable efforts to conduct the Purchased Business in the ordinary course consistent with past practice and (2) do the following:
(a)      use commercially reasonable efforts to maintain the Purchased Assets in as good working order and condition as at present, ordinary wear and tear excepted;
(b)      use commercially reasonable efforts to maintain a level of cash, items of working capital and coal reserves necessary to satisfy at Closing the Minimum Coal Inventory Condition and the Liquidity Condition;

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(c)      not modify in any material respect its now existing credit, collection or payment policies, procedures or practices, including accelerating collections of receivables or failing to pay or delaying payment of payables in a manner inconsistent with its now existing practices;
(d)      not introduce any material new method of management, operation or accounting;
(e)      use commercially reasonable efforts to keep in full force and effect the Insurance Policies or other substantially equivalent insurance coverage without being in default or failing to give any notice or present any claim thereunder;
(f)      use commercially reasonable efforts to keep available the services of the present employees of the Purchased Business; and
(g)      use commercially reasonable efforts to maintain and preserve their business organizations intact and maintain their relationships with third parties.
For the avoidance of doubt, the pendency of the Bankruptcy Case and the effects thereof shall in no way be deemed a breach of this ‎Section 5.01.
Section 5.02.      No Changes in Business . Without limiting the generality of ‎Section 5.01, from the date of this Agreement through the Closing, except as set forth in Schedule ‎5.02 , as expressly permitted by this Agreement or as consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed) and to the extent not inconsistent with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, any orders entered by the Bankruptcy Court in the Bankruptcy Case ( provided the Sellers shall (x) not, without the prior written consent of Buyer, seek any order of the Bankruptcy Court compelling them to take any action described in this ‎Section 5.02 and (y) use their commercially reasonable efforts to oppose any motion or other request seeking such an order of the Bankruptcy Court) or other Applicable Law, the Sellers shall not, and shall not permit any of their Affiliates to, with respect to the Purchased Business:
(a)      reject pursuant to section 365 of the Bankruptcy Code any Assumed Contract or Assumed Lease;
(b)      enter into or amend any Assumed Lease, Assumed Contract or commitment or incur or agree to incur any Liability or make any capital expenditures except for non-material Contracts or Liabilities in the ordinary course of business (any Contract or commitment having a value of (i)  $50,000,00 or less and with a term of less than one year will be considered non material); provided that, (i)  any Contract or commitment having a value of less than $125,000,000 and having a term between 12 and 24 months shall require notice

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to Buyer (but shall not otherwise be deemed material or require consent of Buyer for the purposes of this ‎Section 5.02‎(b)) and (i)  any Contract or commitment having (x) a value of $125,000,000 or more and having a term between 12 and 24 months or (y) a term of greater than twenty four (24) months shall, in each case of (x) and (y), require consent of Buyer pursuant to this ‎Section 5.02‎(b).
(c)      grant a participation or security interest in, mortgage, pledge or otherwise encumber or subject to an Encumbrance (other than a Permitted Encumbrance) any Purchased Asset;
(d)      remove any Purchased Asset from any Mining Complex or other location of the Purchased Business such that the Purchased Asset is no longer located within any Mining Complex or property of the Purchased Business, except for sales of coal inventory in the ordinary course of business consistent with past practice;
(e)      acquire for the Purchased Business (by merger, consolidation or acquisition of stock or assets, inbound license or otherwise) any interest in any corporation, partnership or other business organization or division thereof or other material assets or properties outside of the ordinary course of business consistent with past practice;
(f)      incur any Indebtedness or assume, guarantee or endorse the obligations of any Person, in each case other than Indebtedness or assumptions, guarantees or endorsements of obligations of any Person that do not constitute Assumed Liabilities;
(g)      waive, release, assign, settle or compromise any material rights or claims that constitute Purchased Assets, or any material litigation or arbitration that constitute Purchased Assets;
(h)      enter into any Assumed Contract which materially restricts the ability of the Purchased Business to engage in any business in any geographic area or channel of distribution;
(i)      sell, lease, license (as licensor), assign, dispose of, allow to lapse, or transfer any material tangible or intangible property or contract right that is a Purchased Asset, other than the sale of coal inventory in the ordinary course of business consistent with past practice;
(j)      sell, assign, lease (including lease or sublease) or otherwise transfer or dispose of any of the Purchased Assets except the sale of coal inventory in the ordinary course of business consistent with past practice;
(k)      make loans or advances to, guarantees for the benefit of, or any investments in, any Person other than to the extent such loans, advances

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guarantees or investments do not constitute Purchased Assets or Assumed Liabilities, as the case may be;
(l)      make, change or revoke any Tax election, settle or compromise any Liability for Taxes, file any amended Tax Return, or enter into any agreement with respect to Taxes, in each case to the extent such action would adversely affect the Purchased Assets or the Purchased Business, or subject Buyer or any of its Affiliates to any Tax liability, after the Closing Date;
(m)      enter into or amend any Contract or commitment, or enter into any other transaction, directly or indirectly, with any Affiliate that constitutes an Assumed Contract or gives rise to an Assumed Liability;
(n)      enter or commit to enter into any collective bargaining agreement or other labor agreement with any union or other labor organization; or
(o)      agree or commit to do any of the foregoing.
Section 5.03.      Access to Information . (a) From the date hereof until the Closing Date, the Sellers will (and will cause their Affiliates to) (i) give Buyer, its counsel, financial advisors, auditors and other authorized Representatives reasonable access upon reasonable notice to the Purchased Real Property offices, preparation plants, mine workings and other facilities and properties of the Purchased Business and the books and records of the Sellers relating to the Purchased Business; (i) furnish to Buyer, its counsel, financial advisors, auditors and other authorized Representatives such financial and operating data and other information relating to the Purchased Business as such Persons may reasonably request; and (i) instruct the employees, counsel and financial advisors of the Sellers and their Affiliates to cooperate with Buyer in its investigation of the Purchased Business; provided that nothing herein will obligate Sellers to take or permit any actions that would result in any waiver of attorney-client privilege or violate any Law or the terms of any Contract to which the Sellers or any of their Affiliates is a party or to which any assets of Sellers or any of their Affiliates are subject or subject Sellers or any of their Affiliates to risk of liability; provided , further , that the Parties will use their respective commercially reasonable efforts to obtain the necessary consents or develop an alternative solution so as to not result in the waiver of such privilege or violation of such Law or Contract. Any investigation by Buyer or its authorized Representatives pursuant to this ‎Section 5.03 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Sellers. Notwithstanding the foregoing, Buyer shall not (A) have access to personnel records of the Sellers relating to individual performance or evaluation records, medical histories or other information which in the Sellers’ good faith opinion is sensitive or the disclosure of which could subject the Sellers to risk of liability or (A) without the prior written consent of the Sellers’ Representative (not to be unreasonably withheld, conditioned or delayed so long as Buyer has a reasonable and good faith belief that material

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environmental conditions warranting the following types of investigations are present), conduct or cause to be conducted any sampling, testing or otherwise invasive investigation of the air, soil, surface water, groundwater, building materials or other environmental media related to the Purchased Business or the Purchased Assets. During any visits to any offices, facilities or other properties of Sellers or any of their Affiliates permitted by this Section 5.3, Buyer shall comply, and shall cause its Representatives to comply, with all safety, health and security rules applicable to the premises being visited.
(b)      Without limiting the generality of ‎Section 5.03(a), Buyer and the Sellers shall, beginning immediately upon the Effective Date and continuing until Closing, conduct a reasonable joint pre-closing review to confirm the quantities of Coal Inventory and the existence and location of the Equipment and Fixed Assets, for the purpose of verifying the same; provided that such pre-closing review shall not interfere unreasonably with the conduct of the business of the Sellers.
Section 5.04.      Names; Retained Seller IP . (a) As soon as reasonably practicable following the ReorgCo Transfers Closing, but in no event later than eight months after the Closing Date, CoreCo shall, and shall cause its Affiliates to, discontinue the use of, and shall not subsequently change their name to or otherwise use or employ, any trade name, corporate name, “d/b/a” name or any mark which includes the words “Alpha Natural Resources” or any derivation or combination thereof (collectively, “ Seller Name ”), or is confusingly similar thereto, without the prior written consent of NonCoreCo; provided that, for the avoidance of doubt, the foregoing shall not restrict or prohibit (i) any use of the words “Natural” or “Resources,” or any derivations or combinations thereof, separate and apart from the word “Alpha,” (i) any use of the word “Alpha” in a manner which does not infringe upon the trademark rights of NonCoreCo, or (i) any use of the “Alpha Natural Resources” mark which would constitute nominative fair use. During the foregoing transition period, CoreCo and its Affiliates shall have the right to continue to use the “Alpha Natural Resources” mark (and any derivations or combinations thereof, and related logos, used in conduct of the Purchased Business prior to the ReorgCo Transfers Closing) in connection with the conduct of the Purchased Business; provided that all goodwill from such use of such marks during such transition period shall inure to the benefit of NonCoreCo.
(b)      With respect to any and all Intellectual Property Rights (other than any trademarks, trade names or service marks) owned or licensable by the Sellers or their Affiliates that are used or held for use in the Purchased Business but which are not included in the Purchased Assets (including any applicable computer programs excluded pursuant to ‎Section 2.02(o)) (collectively, “ Retained Seller IP ”), the Sellers hereby grant, on behalf of themselves and their Affiliates, to Buyer and each Designated Buyer, with effect from the Closing, a

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perpetual, irrevocable, worldwide, non-exclusive, royalty free, fully paid-up, freely transferable, freely sublicensable, right and license to (i) use, reproduce, distribute, publicly perform, publicly display and create derivative works of such Retained Seller IP, and (i) use, make, have made, offer for sale, sell, import and export products and services utilizing such Retained Seller IP. With respect to any Retained Seller IP which has been stored on or in physical media (including computer software), NonCoreCo shall, or shall cause its Affiliates to, deliver an instance of such Retained Seller IP to CoreCo upon CoreCo’s request.
(c)      At CoreCo’s request, CoreCo and NonCoreCo will negotiate in good faith with respect to the transfer to CoreCo or, at CoreCo’s direction, a Subsidiary of CoreCo, any Retained Seller IP that is used or held for use primarily in connection with the conduct of the Purchased Business.
Section 5.05.      Records of Purchased Business . For the earlier of a period six years after the Closing Date and the date upon which NonCoreCo and its Affiliates wind-down or otherwise cease operations, NonCoreCo and its Affiliates shall maintain at their corporate and administrative offices originals or copies of all accounting, environmental, Tax, and black lung data relating to the Purchased Business, to the extent not transferred to CoreCo as Purchased Assets in accordance with this Agreement (collectively the “ Business Records ”). During such period, CoreCo shall have the right (i) to inspect and review the Business Records at the corporate and administrative offices of NonCoreCo and (i) at CoreCo’s sole expense, to make copies of the Business Records; provided that any such access by CoreCo shall not unreasonably interfere with the conduct of the business of NonCoreCo; provided further that, in the event NonCoreCo and its Affiliates wind-down or otherwise cease operations prior to the six-year period described in this ‎Section 5.05, NonCoreCo shall provide CoreCo a reasonable opportunity to take possession of all Business Records in the possession of NonCoreCo and its Affiliates. Notwithstanding the foregoing, nothing herein will obligate NonCoreCo or its Affiliates to take or permit any actions that would result in any waiver of attorney-client privilege or violate any Law or the terms of any Contract to which NonCoreCo or any of its Affiliates is a party or to which any assets of NonCoreCo or any of its Affiliates are subject or subject NonCoreCo or any of its Affiliates to risk of liability; provided , that the Parties will use their respective commercially reasonable efforts to obtain the necessary consents or develop an alternative solution so as to not result in the waiver of such privilege or violation of such Law or Contract.
Section 5.06.      Segregation and Removal of Excluded Assets . NonCoreCo shall use commercially reasonable efforts to segregate and remove from the Purchased Real Property all Excluded Assets within 120 days after the Closing Date, and CoreCo shall provide reasonable access to NonCoreCo and its Representatives for such task. NonCoreCo shall remove such items at NonCoreCo’s sole cost and expense in a manner so as not to unreasonably

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interfere with CoreCo’s operations on the Purchased Real Property, and NonCoreCo shall bear full liability for any and all claims related to or arising from the removal of Excluded Assets by NonCoreCo.
Section 5.07.      Release; Acknowledgements . (a) Notwithstanding anything to the contrary contained herein, effective as of the Closing, (i) each Seller and ReorgCo (individually and on behalf of its respective Affiliates) hereby releases and forever discharges Buyer, each Designated Buyer and each of their respective Affiliates and their respective successors and assigns and all officers, directors, partners, members, shareholders, employees and agents of each of them from any and all actual or potential claims, causes of action, proceedings, Liabilities, damages, expenses and/or Losses of whatever kind or nature (including attorneys’ fees and costs), in law or equity, known or unknown, suspected or unsuspected, now existing or hereafter arising, whether contractual, in tort or otherwise, which such Party had, has, or may have in the future to the extent relating to the Excluded Assets or the Excluded Liabilities and (i) Buyer (individually and on behalf of its Affiliates) hereby releases and forever discharges each Seller and ReorgCo and each of their respective Affiliates and their respective successors and assigns and all officers, directors, partners, members, shareholders, employees and agents of each of them from any and all actual or potential claims, causes of action, proceedings, Liabilities, damages, expenses and/or Losses of whatever kind or nature (including attorneys’ fees and costs), in law or equity, known or unknown, suspected or unsuspected, now existing or hereafter arising, whether contractual, in tort or otherwise, which such Party had, has or may have in the future to the extent relating to the Purchased Assets or the Assumed Liabilities; provided that nothing in this Agreement (including this ‎Section 5.07) shall (x) constitute a release of any Person arising from conduct of such Person that is determined by a final order of a court of competent jurisdiction to have constituted fraud, willful breach, knowing and intentional misrepresentation or criminal act by such Person, (y) be construed to release any Person from any of its contractual obligations under this Agreement and the Transaction Documents, including its obligations in respect of the Purchased Assets, Assumed Liabilities, Excluded Assets and Excluded Liabilities, each of which shall remain fully effective and enforceable from and after the Closing Date and (z) without limiting the Credit Release, constitute a release by Buyer or any of its Affiliates of any claims that Buyer or any of its Affiliates have in the Bankruptcy Case.
(b)      Subject to ‎Section 2.15, the Sellers and ReorgCo acknowledge that Buyer (and any Designated Buyer as provided herein) is the sole Person bound by, or liable with respect to, the Liabilities of Buyer under this Agreement, and that no Affiliate of Buyer (except any Designated Buyer as provided herein) or any current or former shareholder, agent, Representative, advisor or consultant of Buyer shall be bound by, or liable with respect to, any aspect of this Agreement or any of the transactions contemplated hereby.

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Section 5.08.      Confirmation Order . Confirmation Order (a) The Sellers covenant and agree that if the Confirmation Order is entered, they will pursue the transactions contemplated by the Confirmation Order and in this Agreement.
(b)      If the Confirmation Order or any other orders of the Bankruptcy Court relating to this Agreement shall be appealed or petition for certiorari or motion for rehearing or reargument shall be filed with respect thereto, the Sellers agree to take all action as may be commercially reasonable and appropriate to defend against such appeal, petition or motion and Buyer agrees to cooperate in such efforts with respect to the transactions contemplated in this Agreement.
(c)      Sellers shall not, and shall cause their Affiliates not to, modify or amend the Asset Schedule to the Bidding Procedures in a manner that would remove or otherwise affect any Purchased Asset without Buyer’s prior written consent.
Section 5.09.      Additional Bankruptcy Matters . (a) From and after the date of this Agreement and until the Closing Date, to the extent reasonably practicable, the Sellers shall deliver to Buyer drafts of any and all pleadings, motions, notices, statements, applications, schedules, reports, and other papers to be filed or submitted by the Sellers in connection with or related to this Agreement for Buyer’s prior review. The Sellers shall make reasonable efforts to consult and cooperate with Buyer regarding (i) any such pleadings, motions, notices, statements, applications, schedules, reports, or other papers, (i) any discovery taken in connection with the seeking entry of the Confirmation Order (including any depositions) and (i) any hearing relating to the Confirmation Order, including the submission of any evidence, including witnesses testimony, in connection with such hearing.
(b)      The Sellers acknowledge and agree, and the Confirmation Order shall provide that, on the Closing Date and concurrently with the Closing, all then existing or thereafter arising Liabilities and Liens of, against or created by the Sellers or their bankruptcy estates, shall be fully released from and with respect to the Purchased Assets, which shall be transferred to Buyer and/or the relevant Designated Buyers free and clear of all Liabilities and Encumbrances except for Assumed Liabilities and Permitted Encumbrances.
(c)      It is intended that transactions contemplated by this Agreement are in furtherance of and under a plan to be confirmed as contemplated by U.S.C. § 1146(c) constitute part of a sale to the Buyers pursuant to 11 U.S.C. § 363, for purposes including, but not limited to, the protections of 11 U.S.C. § 363(f), as described in the Plan of Reorganization.
Section 5.10.      Payment of Cure Costs . Sellers shall, on or prior to the Closing or as otherwise provided in the Plan of Reorganization or the

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Confirmation Order, pay in full in cash an amount equal to the aggregate amount of all Cure Costs.
Section 5.11.      Cooperation if Buyer is to be a Public Company . If CoreCo (or, before the Closing, the Buyer) determines that CoreCo, or one of its Affiliates, will be a publicly traded company, NonCoreCo shall, and shall cause its Affiliates and its and their officers and employees to, cooperate as reasonably requested by CoreCo (or, before the Closing, the Buyer) and provide such information as reasonably requested by CoreCo (or, before the Closing, the Buyer), including by providing reasonable assistance with the preparation of disclosure documents and financial statements; provided that the foregoing will not unreasonably interfere with the ongoing operations of NonCoreCo and its Affiliates and CoreCo will be responsible for any reasonable out-of-pocket expenses of NonCoreCo and its Affiliates incurred in connection therewith.
Section 5.12.      Insurance . NonCoreCo and its Affiliates shall use commercially reasonable efforts, after the ReorgCo Transfers Closing, to (i) enable CoreCo and its Affiliates to file, notice and otherwise continue to pursue (or, at the direction and expense of CoreCo, shall file, notice and continue to pursue) any claims on behalf of the Purchased Business or the Purchased Assets under any third party insurance policy of NonCoreCo or any of its Affiliates covering the Purchased Business or any Purchased Asset for events occurring prior to the ReorgCo Transfers Closing, and (i) enable CoreCo and its Affiliates to recover proceeds under the terms thereof.
Section 5.13.      Restructuring Steps . (a) The Sellers and ReorgCo shall consummate, or cause to be consummated, the Pre-Closing Restructuring Steps (other than any Pre-Closing Restructuring Steps that are to be performed solely by Buyer and its Subsidiaries) prior to the Closing in the manner and sequence set forth in Schedule B. The Sellers shall keep Buyer regularly informed of the progress of the Pre-Closing Restructuring Steps and shall consider in good faith any changes with respect to the Pre-Closing Restructuring Steps that Buyer may reasonably propose from time to time.
(b)      The Sellers and ReorgCo shall consummate, or cause to be consummated, the Post-Closing Restructuring Steps (other than any Post-Closing Restructuring Steps that are to be performed solely by Buyer and its Subsidiaries) immediately following the Closing in the manner, at the times and in the sequence set forth in Schedule B. The Sellers shall keep Buyer regularly informed of the progress of the Post-Closing Restructuring Steps and shall consider in good faith any changes with respect to the Post-Closing Restructuring Steps that Buyer may reasonably propose from time to time.
(c)      Notwithstanding anything herein to the contrary, the Parties agree that, subject to Applicable Law, from the time of the Subsidiary Transfers through the Closing, the applicable ANR Subsidiaries shall hold (and retain legal

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title to or, in the case of a Specified Asset that is a contract or agreement, continue to be party to) and comply with applicable law and perform all legal obligations with respect to the Specified Assets for the account of Alpha Natural Resources and Alpha Natural Resources shall have the benefits (including fees, proceeds and any claims and rights), Liabilities, and bear the economic burdens, associated with the Specified Assets. In furtherance of the foregoing, from the time of the Subsidiary Transfers through the Closing, the applicable ANR Subsidiaries agree to enforce against any third-party (including any Governmental Authority) for the benefit (and at the expense) of Alpha Natural Resources any and all of the ANR Subsidiaries’ rights associated with the Specified Assets and, to the extent monies are received by the ANR Subsidiaries with respect to any of the Specified Assets, the ANR Subsidiaries shall receive such monies for the sole benefit of Alpha Natural Resources and the ANR Subsidiaries shall promptly transmit to Alpha Natural Resources when received all monies received by them with respect to the Specified Assets (net of the ANR Subsidiaries’ expenses incurred in connection with the foregoing). Alpha Natural Resources and its representatives are hereby appointed as proxy and attorney-in-fact to take or direct any actions to be taken by the holder of the Specified Assets, including, if necessary, exercising rights (including voting) with respect to the Specified Assets, and the ANR Subsidiaries shall, and shall cause their representatives to, follow the directions of Alpha Natural Resources and its representatives. Without limitation of the foregoing, from the time of the Subsidiary Transfers through the Closing, the ANR Subsidiaries agree (i) to take no action with respect to the Specified Assets other than as necessary to comply with applicable law or perform legal obligations with respect to the Specified Assets (in each case, subject to Section 5.01 and Section 5.02) or at the direction of Alpha Natural Resources or any of its representatives, and (ii) to provide Alpha Natural Resources with such information and assistance as Alpha Natural Resources may reasonably request to exercise its rights and perform its obligations with respect to the Specified Assets. “ Specified Assets ” means the Permits and Licenses.
ARTICLE 6
COVENANTS OF BUYER AND CORECO
Section 6.01.      Access . After the Closing Date, to the extent permitted by Applicable Law, Buyer will, and will cause each Designated Buyer to, (i)  not dispose of or destroy any files, books, records and other materials related to the Purchased Business received by Buyer or the Designated Buyers pursuant to this Agreement for a period of six years after the Closing Date and (i)  afford to the Sellers and their agents reasonable access to its properties, books, records, employees and auditors to the extent necessary to permit the Sellers to determine any matter relating to its rights and obligations hereunder or to any period ending on or before the Closing Date or for purposes relating to the Bankruptcy Case, the wind-down of the operations of the Sellers, or other reasonable business purposes,

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and the Sellers and any of their Representatives, accountants and auditors shall have the right to make copies of any such files, books, records and other materials; provided that any such access by the Sellers shall not unreasonably interfere with the conduct of the business of Buyer or the Designated Buyers; provided further that the scope of any such access shall be limited to the Purchased Assets. Notwithstanding the foregoing, nothing herein will obligate Buyer or its Affiliates to take or permit any actions that would result in any waiver of attorney-client privilege or violate any Law or the terms of any Contract to which Buyer or any of its Affiliates is a party or to which any assets of Buyer or any of its Affiliates are subject or subject Buyer or any of its Affiliates to risk of liability; provided , that the Parties will use their respective commercially reasonable efforts to obtain the necessary consents or develop an alternative solution so as to not result in the waiver of such privilege or violation of such Law or Contract.
Section 6.02.      Bankruptcy Actions . Buyer acknowledges that it or the relevant Designated Buyers, as applicable, must provide adequate assurance of future performance under the Assumed Contracts and the Assumed Leases and agrees that it shall, and shall cause its Affiliates to, cooperate with the Sellers in connection with furnishing information or documents to the Sellers to satisfy the requirements of section 365(f)(2)(B) of the Bankruptcy Code.
Section 6.03.      Avoidance Actions . Within 120 days after the Closing Date, Buyer shall exclude any Person from Schedule ‎2.01(n) with whom it is not necessary, as determined by Buyer in its reasonable discretion, for Buyer to conduct business in order to operate the Purchased Business. Buyer may also add any Person to such revised Schedule ‎2.01(n) that was not included on such schedule at Closing; provided , that no Person shall be added to such schedule without the prior written (electronic or otherwise) consent (not to be unreasonably withheld) of the Sellers’ Representative (in consultation with the unsecured creditors’ committee). If there are any changes to Schedule ‎2.01(n) pursuant to the preceding two sentences, Buyer shall deliver a revised version of Schedule ‎2.01(n) to the Sellers.
Section 6.04.      Buyer Common Stock Redemption . Buyer will cause all issued and outstanding Buyer Common Stock, other than the Buyer Purchase Price Common Stock, to be cancelled or redeemed concurrently with the Closing (the “ Buyer Common Stock Redemption ”).
Section 6.05.      Participation Rights. Buyer will honor the participation rights contemplated to be granted to creditors of Sellers pursuant to the Plan, as reflected in the (a) Notice of Filing of Newco ABL Facility Syndication Procedures (Docket No. 2755), filed with the Bankruptcy Court on June 22, 2016 and (b) the Notice and Instruction Form and Subscription Form distributed to Second Lien Noteholders on June 30, 2016.

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ARTICLE 7
COVENANTS OF BUYER, THE SELLERS, CORECO AND NONCORECO
Section 7.01.      Further Assurance . (a) Except as otherwise provided herein and subject to the terms and conditions of this Agreement (including ‎Section 7.03), the Bankruptcy Code and any orders of the Bankruptcy Court, the Sellers and Buyer shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under Applicable Law to consummate the transactions contemplated by this Agreement, including (i) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (i) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement, in each case, after giving effect to the Confirmation Order. The Sellers and Buyer agree to execute and deliver such other documents, certificates, agreements and other writings and to use commercially reasonably efforts to take such other actions as may be necessary or desirable in order to consummate or implement expeditiously the transactions contemplated by this Agreement, to vest in Buyer and/or the relevant Designated Buyers good title to the Purchased Assets and to assure and evidence the assumption by Buyer and/or the relevant Designated Buyers of the Assumed Liabilities.
(b)      In furtherance and not in limitation of the foregoing, but subject to ‎Section 7.01(c), to the extent applicable, each of Buyer and the Sellers shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable and in any event within 10 Business Days of the date hereof. Each of Buyer and the Sellers shall supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and shall use commercially reasonable efforts to take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as practicable, if applicable.
(c)      Notwithstanding anything in this Agreement to the contrary, “commercially reasonable efforts” for purposes of this Agreement shall in no event or circumstance require Buyer or any of its Affiliates, or permit any Seller or any of its Affiliates without Buyer’s consent, to (i) execute any settlements, undertakings, consent decrees, stipulations or other agreements, (i) sell, divest, hold separate or otherwise convey any particular assets or categories of assets or businesses of Buyer and its Affiliates or any Seller and its Affiliates, as applicable, (i) agree to sell, divest, hold separate or otherwise convey any

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particular assets or categories of assets or businesses contemporaneously with or subsequent to the Closing, (i) otherwise take or commit to take actions that after the Closing Date would limit the freedom of action of Buyer or its Affiliates with respect to, or its or their ability to retain, one or more of its or their businesses or assets, (i) defend through litigation on the merits any claim asserted in court by any Person, (i) accept any amendment to the terms of any Transferred Permit/License or any additional conditions with respect to any Transferred Permit/License or (i) subject to ‎Section 7.01(e), make to any Person any material payment with respect to obtaining any approvals, consents, registrations, permits, authorizations and other confirmations.
(d)      No Party shall agree (or permit any of their respective Affiliates to agree) to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry relating to the consummation of the transactions contemplated by this Agreement unless it consults with the other Parties in advance (to the extent reasonably practicable to do so) and, to the extent permitted by such Governmental Authority and any Applicable Law, gives the other Parties and their outside counsel the opportunity to attend and participate at such meeting
(e)      The fees and expenses for all filings under the HSR Act and any other necessary filings or submissions to any Governmental Authority pursuant to this ‎Section 7.01 shall be borne in full by Buyer.
Section 7.02.      Certain Filings . The Sellers and Buyer shall cooperate with one another (i) in determining whether any action by or in respect of, or filing with or notice to, any Governmental Authority is required (including in connection with the transfer of any Consent Decree), or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated by this Agreement and (i) in taking such actions or making any such filings or notices, furnishing information required in connection therewith and seeking timely to obtain any such actions, consents, approvals or waivers.
Section 7.03.      Transferred Permit/License and Surety Bond Matters . (a) (i) to the extent permitted by Applicable Law, Sellers shall prepare, at their sole cost and expense, all applications required to transfer the Transferred Permits/Licenses (which applications shall include the necessary applications, notices, forms and other documents to appoint Buyer and/or the relevant Designated Buyers, as applicable, as the designated operator on the Transferred Permits/Licenses with the appropriate Governmental Authority), (i) Buyer shall cooperate with and provide reasonable assistance to Sellers in connection with such preparation and such applications shall be reasonably satisfactory to Buyer, (i) all such applications shall be executed no later than the Closing, (i) no later than 30 days after the Closing, Buyer and/or the relevant Designated Buyers, as

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applicable, shall properly file all applications required to transfer the Transferred Permits/Licenses from the Sellers and their Affiliates to Buyer and/or the relevant Designated Buyers, as applicable, and (i) Buyer and/or the relevant Designated Buyers, as applicable, shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or desirable under Applicable Law to put in place with the appropriate Governmental Authority as promptly as commercially reasonably possible after the Closing (but no earlier than such time as the applicable Governmental Authorities have provided notice of intent to approve the transfer of the Transferred Permits/Licenses) financial assurances necessary to transfer the Transferred Permits/Licenses from the Sellers and their Affiliates to Buyer and/or the relevant Designated Buyers, as applicable; provided that neither the Buyer nor the Designated Buyers, nor their respective Affiliates, shall be obligated to take or consummate a transfer of any of the permits or licenses listed on Schedule ‎3.07(a) if (x) such permits or licenses are not primarily related to any of the Mining Complexes and Buyer so elects, in which case such permits or licenses will not be considered Transferred Permits/Licenses notwithstanding anything in this Agreement to the contrary (including the fact that such licenses or permits were listed on Schedule ‎3.07(a) ), (y) any Governmental Authority (I) seeks to impose new or additional conditions to any Transferred Permits/License that would materially increase the cost of compliance or operating a covered operation or (II) demands a material increase in the amount of any bond or other security for any such Transferred Permits/License and, in either case, Buyer so elects, or (z) any surety providing financial assurance with respect to such Transferred Permit/License seeks to materially increase the amount of any collateral requirement or seeks to impose other material obligations thereunder and Buyer so elects. The Sellers agree to diligently provide any cooperation reasonably requested by Buyer to bring about the transfer of the Transferred Permits/Licenses (including the appointment of Buyer and/or the relevant Designated Buyers, as applicable, as approved operator). From and after the Closing, Buyer and/or the relevant Designated Buyers, as applicable, shall diligently pursue the transfer of the Transferred Permits/Licenses to Buyer and/or the relevant Designated Buyers, and Buyer and/or the relevant Designated Buyers, as applicable, shall operate under the Transferred Permits/Licenses as the designated operator in accordance with the terms and conditions contained in the Permit Transfer Agreements; provided that in no event shall Buyer or any Designated Buyer be obligated to accept any material amendment to the terms of any Transferred Permit/License or any additional conditions with respect to any Transferred Permit/License. To the extent allowed by and in accordance with Applicable Laws and the terms and conditions of the Permit Transfer Agreements, the Sellers grant Buyer and/or the relevant Designated Buyers the right to conduct at the sole cost and expense of Buyer and/or the relevant Designated Buyers mining operations following the Closing on the Purchased Real Property under the Transferred Permits/Licenses as the designated operator until such time as the applicable Transferred Permits/Licenses are transferred to Buyer and/or the relevant Designated Buyers (the

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“ Interim Period ”). Buyer and Sellers will make such filings, applications, notices or deliver any other documents as necessary to give effect to the foregoing arrangement during the Interim Period.
(b)      Subject to Sellers’ compliance with ‎Section 7.03(c), Buyer and/or the relevant Designated Buyers, as applicable, during the Interim Period, shall: (i) maintain such Transferred Permit/License and comply with all Applicable Laws governing, and all conditions and requirements of, or pertaining to, any such Transferred Permits/Licenses (which shall include the performance of all actions required by Applicable Laws and all conditions and requirements of the Transferred Permit/License); and (i) be solely responsible (including all required remedial measures or abatement actions) for all incidents of violation, non-compliance, and similar occurrences related to the Transferred Permits/Licenses that arise from the actions of Buyer or any Designated Buyer while operating under such Transferred Permits/Licenses during the Interim Period. Buyer shall promptly deliver to the Sellers written notice of any such incidents or occurrences, which the Sellers shall have the right, but not the obligation, to cure in the event Buyer or any Designated Buyer, as applicable, fails to cure (including right of entry onto the applicable Purchased Real Property), and Buyer shall promptly reimburse the Sellers for the reasonable costs of any such cure. The Sellers shall have (and Buyer and the Designated Buyers grant) all rights of entry onto the Purchased Real Property necessary for the Sellers to maintain the Transferred Permits/Licenses prior to transfer in the event Buyer or any Designated Buyer, as applicable, fails to maintain the Transferred Permits/Licenses during the Interim Period. The above notwithstanding, Buyer or the Designated Buyer, as applicable, shall remain liable for the Assumed Liabilities related to the Transferred Permits/Licenses even if any applicable Governmental Authority fails to approve the transfers of any of the Transferred Permits/Licenses to Buyer or any Designated Buyer.
(c)      Subject to Buyer’s compliance with ‎Section 7.03(b), Sellers, at all times prior to the transfer of the Transferred Permits/Licenses to Buyer and/or the relevant Designated Buyers, as applicable shall (i) comply with the administrative requirements of all Applicable Laws governing, and the administrative requirements of all conditions and requirements of, or pertaining to, any such Transferred Permits/Licenses that are necessary to maintain such Transferred Permits/Licenses in good standing and in full force and effect so that they may be transferred upon approval of the appropriate Governmental Authority and (i) be solely responsible for all incidents of violation, non-compliance, and similar occurrences related to Permits and/or Licenses other than any incidents in connection with the Transferred Permits/Licenses that arise from the actions of Buyer or any Designated Buyer while operating under such other Permits and/or Licenses following the Closing. Sellers shall promptly deliver to Buyer written notice of any such incidences or occurrences that relate to the Transferred Permits/Licenses, which Buyer shall have the right, but not the

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obligation, to cure (including right of entry onto the Sellers’ property), and Sellers shall promptly reimburse the Buyer for the reasonable costs of any such cure.
(d)      Sellers shall pay all Excluded Pre-Closing Fines and shall have all rights to negotiate and settle the resolution of the Excluded Pre-Closing Fines, and will coordinate with Buyer in, and keep Buyer reasonably informed of, such negotiations and settlements; provided that, Sellers shall not resolve any Excluded Pre-Closing Fines without Buyer’s consent if such settlement or resolution would materially modify or affect the Transferred Permits/Licenses or the ongoing operation of such Purchased Assets that are subject of the Transferred Permits/Licenses.
(e)      Notwithstanding anything in this Agreement to the contrary, (i) during the Interim Period, absent the occurrence of an incident of violation, noncompliance or similar occurrence for which Buyer is responsible pursuant to ‎Section 7.03(b), the Sellers shall remain responsible, at their sole cost and expense for up to 120 days after the Effective Date, for maintaining any surety bonds or other financial assurances required in connection with the Transferred Permits/Licenses (with any such cost and expenses after such period to be reimbursed by Buyer) and (i) Buyer shall indemnify and hold harmless all Sellers for any Liabilities incurred with respect to such bonds or other financial assurances to the extent resulting from the actions of Buyer or any Designated Buyer while operating under the Transferred Permits/Licenses during the Interim Period.
(f)      Notwithstanding anything to the contrary in this Agreement (including ‎Section 2.03(b)(i) or this ‎Section 7.03), if any of the Transferred Permits/Licenses encompasses or pertains to or would impose liability on Buyer or any Designated Buyer for any Excluded Asset or Excluded Liability or any acreage or operations other than the Purchased Assets (collectively, “ Overlapping Permit Property ” and such Transferred Permits/Licenses, “ Overlapping Transferred Permits/License ), the Sellers and Buyer or Designated Buyers (as the case may be), as their interests appear, shall diligently cooperate in the filing of all applications with the appropriate Governmental Authority required to divide Overlapping Transferred Permits/Licenses between the Purchased Assets, on the one hand, and the Overlapping Permit Property, on the other hand, so that all Overlapping Permit Property is excluded from the Transferred Permits/Licenses.
(g)      Any permits or licenses of Sellers or their Affiliates that are related to the Purchased Business and are reasonably determined by Buyer or any Designated Buyer to be necessary for the operation of the Purchased Business or the Purchased Assets shall, at the election of Buyer, constitute Transferred

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Permits/Licenses under this Agreement and be subject to this ‎Section 7.03 to the extent such permits and licenses are transferable.
Section 7.04.      Public Announcements . Except as may be necessary in connection with the Bankruptcy Case, the Parties agree to consult with each other before issuing any press release or making any public statement with respect to this Agreement or the transactions contemplated hereby and, except for any press releases and public statements the making of which may be required by Applicable Law or any listing agreement with any national securities exchange, will not issue any such press release or make any such public statement prior to such consultation.
Section 7.05.      WARN Act . The Sellers shall be responsible for any notices required to be given under and shall otherwise comply with all Liabilities arising under the Worker Adjustment and Retraining Notification Act (or any similar state or local law, the “ WARN Act ”) relating to any acts or omissions on or prior to the Closing, including as a result of the transactions contemplated by this Agreement; provided , however , that in the event that Buyer or a Designated Buyer decides not to hire a sufficient number of Business Employees such that it would trigger a “plant closing” or “mass layoff” within the meaning of the WARN Act, Buyer shall provide notice of its decision to the Sellers in sufficient time for the Sellers to comply with the WARN Act’s notice requirements prior to the Closing Date. If Buyer does not provide sufficient time for the Sellers to so comply, Buyer agrees to indemnify the Sellers against and agrees to hold each of them harmless from any and all Losses incurred or suffered by the Sellers with respect to WARN Act Liabilities arising solely as a result thereof. Subject to the foregoing and Section ‎9.01(d) , Buyer shall be responsible for any notices required to be given under and shall otherwise comply with all Liabilities arising under the WARN Act relating to any acts or omissions after the Closing.
Section 7.06.      Notification of Certain Events . Each Party shall promptly notify the other Parties of any event, condition or circumstance of which such Party becomes aware prior to the Closing Date that would cause, or would reasonably be expected to cause, a material violation or breach of this Agreement by such Party (or a breach of any representation or warranty of such Party contained in this Agreement) or prevent any condition in Article 10 from being satisfied by the End Date. During the period prior to the Closing Date, each Party will promptly advise the other Parties in writing of any written notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement and the Transaction Documents. A Party’s receipt of information pursuant to this ‎Section 7.06 shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the other Parties in this Agreement and shall not be deemed to amend or supplement the Disclosure Schedules.

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Section 7.07.      Bankruptcy Court Approval . Each of the Sellers and Buyer acknowledge that this Agreement and the sale of the Purchased Assets are subject to Bankruptcy Court approval. The Sellers and Buyer shall cooperate with each other in seeking approval of the transactions contemplated by this Agreement through the entry of the Confirmation Order. Buyer agrees that it will, at Buyer’s own cost, promptly take all actions that are reasonably requested by the Sellers to assist in obtaining the Bankruptcy Court’s entry of the Confirmation Order with respect to the transactions contemplated by this Agreement, including furnishing affidavits, financial information or other documents or information for filing with the Bankruptcy Court and making Buyer’s employees and representatives available to testify before the Bankruptcy Court.
Section 7.08.      Confidentiality . From and after the Closing, Buyer and the Designated Buyers, on the one hand, and the Sellers, on the other hand, shall, and shall cause their respective Affiliates and its and their respective Representatives to, maintain in confidence any written, oral or other information relating to the other Party’s businesses following the Closing (including, with respect to the Sellers’ confidentiality obligations hereunder following the Closing, information relating to the Purchased Business and/or the Purchased Assets and/or Assumed Liabilities, and with respect to the Buyer’s confidentiality obligations hereunder following the Closing, the Excluded Assets and Excluded Liabilities) or obtained from another Party or its Affiliates or its or their respective Representatives, except that the foregoing requirements of this ‎Section 7.08 shall not apply to the extent that (i) any such information is or becomes generally available to the public other than (A) in the case of Buyer, as a result of disclosure by the Sellers or any of their Affiliates or any of its or their respective Representatives in violation of this Agreement and (A) in the case of the Sellers, as a result of disclosure by Buyer, Designated Buyers, or its or their Affiliates or any of its or their respective Representatives in violation of this Agreement, (i) any such information is required by Applicable Law or a Governmental Authority to be disclosed (including in connection with the Bankruptcy Case or any report, statement, testimony or other submission to such Governmental Authority), (i) any such information is reasonably necessary to be disclosed in connection with any Action or in any dispute with respect to this Agreement (including in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to the disclosing Party in the course of any litigation, investigation or administrative proceeding) or (i) any such information was or becomes available to such Party on a non-confidential basis and from a source (other than a Party to this Agreement or any Affiliate of such Party or any of its or their respective Representatives) that is not bound by a confidentiality obligation with respect to such information; provided that, the fact that any information relating to the Purchased Business was in the possession of Sellers or relating to the Excluded Assets or Excluded Liabilities was in the possession of Buyers or their respective Affiliates or Representatives, prior to Closing shall not be a basis for any of them to rely on this clause (iv). If a Party or any of its Affiliates or its or

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their respective Representatives becomes legally compelled by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar judicial or administrative process to disclose any such information, such Party shall, or shall cause such Affiliate or Representative to, provide the other Parties with prompt prior written notice of such requirement (including any report, statement, testimony or other submission to such Governmental Authority) to the extent legally permissible and, to the extent reasonably practicable cooperate with such other Parties, at the requesting Party’s sole expense, to obtain a protective order or similar remedy to cause such information not to be disclosed, including interposing all available objections thereto, such as objections based on settlement privilege; provided , that, in the event that such protective order or other similar remedy is not obtained, such Party shall, or shall cause such Affiliate or Representative to, furnish only that portion of such information that has been legally compelled, and shall, or shall cause its Affiliate or Representative (as applicable) to, exercise its commercially reasonable efforts, at the requesting Party’s sole expense, to obtain assurance that confidential treatment will be accorded such disclosed information. Each of the Parties shall instruct its Affiliates and its or their respective Representatives having access to such information of such obligation of confidentiality and shall be responsible for any breach of the terms of this ‎Section 7.08 by any of its Affiliates or its or their respective Representatives.
Section 7.09.      Certain Payments or Instruments Received from Third Parties . To the extent that, after the Closing Date, (a) CoreCo or any of its Affiliates receives any payment or instrument that is for the account of NonCoreCo or any of its Affiliates according to the terms of any Transaction Document or relates primarily to any business or business segment of NonCoreCo other than the Purchased Business, CoreCo shall promptly deliver such amount or instrument to NonCoreCo, or (a) NonCoreCo or any of its Affiliates receives any payment or instrument that is for the account of CoreCo according to the terms of any Transaction Document or relates primarily to the Purchased Business, NonCoreCo shall, and shall cause its Affiliates to, promptly deliver such amount or instrument to CoreCo; provided that if this Agreement does not provide for whose account a payment or instrument referenced in this sentence is to be and such item relates to both the Purchased Business and a business or business segment of NonCoreCo or its Affiliates other than the Purchase Business, such item shall be apportioned between the two on the basis of the extent to which it relates to each. All amounts due and payable under this ‎Section 7.09 shall be due and payable by the applicable Party in immediately available funds, by wire transfer to the account designated in writing by the relevant Party. Notwithstanding the foregoing, each Party hereby undertakes to use its commercially reasonable efforts to direct or forward all bills, invoices or like instruments to the appropriate Party. Any payments received under this ‎Section 7.09 by the applicable Party will be treated by the other Party as being received by

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the applicable Party in its capacity as an agent for the other Party solely for U.S. federal income tax purposes.
Section 7.10.      Consents and Approvals . Subject to ‎Section 7.01, the Parties shall use commercially reasonable efforts, as set forth in this Agreement, to secure all approvals, authorizations, consents, Transferred Permits/Licenses, orders, Licenses, assignments, releases, and/or waivers, if any, that are necessary to effect the transactions contemplated by this Agreement and the Transaction Documents. Without limiting ‎Section 7.01(c), such commercially reasonable efforts shall not require any material payment or other consideration from the Parties (other than (i) as contemplated by ‎Section 7.03, (i) the Cure Costs and (i) the Transfer Taxes, which shall be the responsibility of Sellers).
Section 7.11.      Transaction Documents . The Parties shall negotiate in good faith, prior to Closing, the terms of the Transaction Documents, and in each case such terms shall be in a form (i) customary for transactions of the type contemplated by this Agreement, (i) consistent with the terms attached as an exhibit to this Agreement (with respect to those Transaction Documents for which an exhibit has been attached hereto), and (i) reasonably satisfactory to Buyer and Sellers in their respective discretion. For the avoidance of doubt, the Running Right Trademark License shall include, among other terms and conditions, customary trademark licensing provisions protective of the licensor and the licensor’s interest in the licensed trademark(s).
Section 7.12.      Nicholas Complex . (a) With respect to the Nicholas Complex, notwithstanding anything in this Agreement or any Schedule to the contrary, the Parties agree that Owned Real Property shall not include any surface or subsurface lands on or in which any surface coal mines or related mine drainage collection and treatment or erosion and sedimentation control facilities are located (“ Excluded Nicholas Complex Owned Property ”) and Assumed Leases shall not include any surface or subsurface lands on or in which any surface coal mines or related mine drainage collection and treatment or erosion and sedimentation control facilities are located (“ Excluded Nicholas Complex Assumed Lease Property ”), (it being agreed that all such Excluded Nicholas Complex Owned Property and Excluded Nicholas Complex Assumed Lease Property shall be an Excluded Asset); provided , that Owned Real Property and Assumed Leases shall include any surface mine that was operated to construct or is operated for the portals or face areas for the Jerry Fork underground mine. Also with respect to the Nicholas Complex, for avoidance of doubt:
(i)      as part of Owned Real Property and Assumed Leases, the Parties intend for Alpha Natural Resources (with it being understood that, as part of the Subsidiary Transfers, the other Sellers will transfer to Alpha Natural Resources any rights and assets they hold that are necessary for Alpha Natural Resources to comply with its obligations hereunder, except

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for any Specified Assets to be held by the ANR Subsidiaries consistent with ‎Section 5.13(c)) to (and Alpha Natural Resources will) grant and convey to the Buyer or the relevant Designated Buyers all property on which the Power Mountain coal cleaning and processing plant, and the related load out and coal refuse disposal area, are operated;
(ii)      with respect to the Excluded Nicholas Complex Owned Property and Excluded Nicholas Complex Assumed Lease Property, the Parties intend for Alpha Natural Resources (with it being understood that, as part of the Subsidiary Transfers, the other Sellers will transfer to Alpha Natural Resources any rights and assets they hold that are necessary for Alpha Natural Resources to comply with its obligations hereunder, except for any Specified Assets to be held by the ANR Subsidiaries consistent with ‎Section 5.13(c)) to (and Alpha Natural Resources will) grant and convey to the Buyer or the relevant Designated Buyers, all of the Sellers’ and their Affiliates’ right, title and interest in and to (A) the Eagle, Little Eagle and Peerless seams of coal in Nicholas county and Clay county, West Virginia that can be mined and operated by the underground mining method and which underlie the Excluded Nicholas Complex Owned Property and Excluded Nicholas Complex Assumed Lease Property (“ Included Coal ”) and (A) broad form, express underground coal mining rights, including: an unconditional waiver of the right to surface, subjacent and sublateral support, including an unconditional waiver of the right to support of any superincumbent coal seam or other strata; the right to recover and sell and/or vent all coalbed methane, coal mine or coal gob methane (collectively, “ CM ”); the rights to any and all emissions credits or similar credits of or related to capturing or avoiding the venting to the atmosphere of CM; the Sellers’ and their Affiliates’’ right of ingress, egress and regress in, to, over and upon the Excluded Nicholas Complex Owned Property and/or Excluded Nicholas Complex Assumed Lease Property for the purpose of mining Included Coal by the underground mining method, or mining coal or hauling any coal from other lands, together with the right to use the same for ventilation holes or shafts, drainage of mine water and/or disposal of refuse and other mine waste; without limiting the generality of the foregoing broad form rights, the right to enter upon and use the Excluded Nicholas Complex Owned Property and/or Excluded Nicholas Complex Assumed Lease Property to construct and operate portals, face areas and related surface facilities for any new or expanded mines with respect to the Owned Real Property, Assumed Lease Property, Included Coal and coal from other lands hauled through such portals, face areas and related surface facilities; the right to temporarily or permanently place or store coal refuse, coal combustion by-products, water and mine drainage, together with the right to temporarily or permanently place or store such materials from other properties, and to transport such materials through the mine voids to other mine voids owned

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or operated by the Buyer or the relevant Designated Buyers; all underground coal mining rights implied by West Virginia law; and all other rights reasonably related to any of the foregoing (collectively, “ Mining Rights ”) which said Mining Rights shall be exercised in accordance with all Applicable Laws, the terms and conditions of any Mining Permit or and West Virginia Office of Miners’ Health Safety and Training and/or US Mine Health and Safety Administration (MSHA) license or plan and shall be exercised in such a way not to unreasonably interfere with the operations of Sellers, or their respective successors and assigns, that will be conducted on the Excluded Nicholas Complex Owned Property, the Excluded Nicholas Complex Assumed Lease Property or any other property owned or controlled after the Closing;
(iii)      as part of Owned Real Property and Assumed Leases, the Parties intend for Alpha Natural Resources (with it being understood that, as part of the Subsidiary Transfers, the other Sellers will transfer to Alpha Natural Resources any rights and assets they hold that are necessary for Alpha Natural Resources to comply with its obligations hereunder, except for any Specified Assets to be held by the ANR Subsidiaries consistent with ‎Section 5.13(c)) to (and Alpha Natural Resources will) grant and convey to the Buyer or the relevant Designated Buyers, by way of sublease, easement or right of way, as the case may be and at the discretion of the Buyer or the relevant Designated Buyers, the leasehold or subleasehold estate of the Sellers and their Affiliates of all the Eagle, Little Eagle and the Peerless seams of coal in Nicholas county and Clay county, West Virginia that can be mined and operated by the underground mining method, and such surface rights that are necessary or convenient to operate the Owned Real Property, the Assumed Leases and the Included Coal, in each case together with Mining Rights (“ Nicholas Complex Coal Sublease ”), provided, that the Nicholas Complex Coal Sublease shall not include any interest in surface or subsurface lands on or in which any surface coal mines or related mine drainage collection and treatment or erosion and sedimentation control facilities are located (“ Excluded Nicholas Complex Coal Sublease Interests ”) (it being agreed that all Excluded Nicholas Complex Coal Sublease Interests shall be Excluded Assets); and
(iv)      with respect to the Excluded Nicholas Complex Owned Property and Excluded Nicholas Complex Assumed Lease Property, the Parties intend for Alpha Natural Resources (with it being understood that, as part of the Subsidiary Transfers, the other Sellers will transfer to Alpha Natural Resources any rights and assets they hold that are necessary for Alpha Natural Resources to comply with its obligations hereunder, except for any Specified Assets to be held by the ANR Subsidiaries consistent with ‎Section 5.13(c)) to (and Alpha Natural Resources will) grant and

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convey to the Buyer or the relevant Designated Buyers and at the discretion of the Buyer or the relevant Designated Buyers, a lease, sublease, easement, right of way or license, as the case may be, of any Excluded Nicholas Complex Owned Property, Excluded Nicholas Complex Assumed Lease Property or Excluded Nicholas Complex Coal Sublease Interests that is necessary or convenient for the Buyer or the relevant Designated Buyers for ingress, egress and regress relating to the ownership or operation of the Owned Property, Assumed Lease Property, Included Coal, any operations, facilities or improvements thereon or with respect thereto, or any other rights contemplated to be granted and conveyed pursuant to this ‎Section 7.12, including the right to maintain, operate and reclaim a belt line and structure from either the Jerry Fork mine or any future mine in such Eagle, Little Eagle and Peerless seams of coal to either the existing Power Mountain coal cleaning and processing plant and related load out and refuse disposal area, or any other coal cleaning and processing plant and related load out and refuse disposal area necessary or convenient for the operation of the coal and mining rights contemplated to be granted and conveyed or subleased pursuant to this ‎Section 7.12.
(b)      Nothing in this ‎Section 7.12 shall be construed to obligate Alpha Natural Resources or the other Sellers or its or their Affiliates to grant, convey, sublease or transfer coal, mining or other property rights that it does not own or control. Each deed, sublease or other conveyance or transfer contemplated to be granted or conveyed pursuant to this ‎Section 7.12 shall be in form and substance reasonably satisfactory to the Buyer or the relevant Designated Buyers, consistent with ‎Section 7.11. With respect to any lease of property within the Nicholas Complex from a third party to Alpha Natural Resources or the other Sellers or its or their Affiliates, including the Nicholas Complex Coal Sublease, by which this ‎Section 7.12 contemplates that the Sellers will grant a sublease, easement, right of way or license, promptly following the execution and delivery of this Agreement, each of the Sellers and the Buyer or the relevant Designated Buyers shall cooperate with and provide reasonable assistance to the other in connection with obtaining from the original lessor of such lease an equivalent lease, easement, right of way or license directly from such original lessee to the Buyer or the relevant Designated Buyers. Nothing in this ‎Section 7.12 shall be construed to alter or amend ‎Section 7.03(f).
(c)      As soon as reasonably practicable following the Effective Date, the Parties will negotiate in good faith an appropriate allocation among the Parties of any minimum royalty amounts, taking into account the intent to divide such leasehold or subleasehold estate of the Sellers and their Affiliates between the portion to be retained by NonCoreCo and its Affiliates after Closing and the portion to be used by CoreCo and its Affiliates after Closing. Such allocation shall be made on a lease or sublease year basis and prorated annually. In

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addition, CoreCo shall be responsible for any tonnage royalties, wheelage payments, prorated taxes or any other fees that may become due and payable on account of the operations or activities of CoreCo due under the leasehold or subleasehold estate of NonCoreCo and its Affiliates until such time as the original lessor thereof grants an equivalent lease, easement, right of way or license to CoreCo.
Section 7.13.      Cooperation Regarding Licenses and Worker’s Compensation . From the Effective Date through the Closing, the Sellers and Buyer shall reasonably cooperate with one another and use commercially reasonable efforts to cause Buyer or, if applicable, the Designated Buyers, to obtain by the Closing Date (i) all material Licenses listed on Schedule ‎7.13 and (ii) coverage for Workers’ Compensation Liabilities.
Section 7.14.      Assumed Liabilities; Excluded Liabilities; Succession of ReorgCo . By virtue of the Confirmation Order and this Agreement, effective as of the Closing, Buyer, its Affiliates and their respective securityholders (in their capacity as such) are not assuming any Liabilities of Alpha Natural Resources other than the Assumed Liabilities. ReorgCo agrees that: (a) commencing upon the Closing, it will cause Alpha Natural Resources to perform its obligations under the Transaction Documents and (b) if Alpha Natural Resources is dissolved or liquidated after the Closing, ReorgCo will automatically thereupon succeed to the rights, and assume and perform the obligations, of Alpha Natural Resources under the Transaction Documents.
ARTICLE 8
TAX MATTERS
Section 8.01.      Tax Cooperation; Responsibility for Taxes; FIRPTA . (a) CoreCo and NonCoreCo agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Purchased Business and the Purchased Assets and Assumed Liabilities (including access to books and records) as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, the preparation for any audit by any Taxing Authority, and the prosecution or defense of any claim, suit or proceeding relating to any Tax. CoreCo shall retain all books and records with respect to Taxes pertaining to the Purchased Assets and the Assumed Liabilities for any Pre-Closing Tax Period for a period of at least six (6) years following the Closing Date. CoreCo and NonCoreCo shall cooperate with each other in the conduct of any audit or other proceeding relating to Taxes involving the Purchased Assets, the Assumed Liabilities or the Purchased Business. NonCoreCo shall use commercially reasonable efforts to provide CoreCo with such information that is in the possession of NonCoreCo and is reasonably requested by CoreCo to identify the jurisdictions in which Tax Returns are required to be filed, or Taxes are required to be paid, and the types of Tax

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Returns required to be filed, in each case with respect to the Purchased Business or the Purchased Assets.
(b)      By virtue of section 1146 of the Bankruptcy Code, no excise, sales, use, value added, registration, stamp, recording, documentary, conveyancing, transfer or other similar non-income Taxes, levies, charges and fees (collectively, “ Transfer Taxes ”) should be payable in connection with the transactions contemplated by this Agreement and the Confirmation Order shall provide as such. If, notwithstanding the foregoing, a court of competent jurisdiction determines that a Transfer Tax is due in connection with the transactions contemplated by this Agreement, such Transfer Taxes shall be borne by NonCoreCo.  Transfer Taxes, if any after application of section 1146 of the Bankruptcy Code and the terms of the Confirmation Order, shall be timely paid, and all applicable filings, reports and returns shall be filed, as provided by Applicable Law.  CoreCo and NonCoreCo shall cooperate in reducing any such Transfer Taxes (and any other Tax cost) to the extent possible, including by providing each other with any appropriate resale exemption certifications and other similar documentation or by restructuring the form of all (or part) of the transactions contemplated by this Agreement and the Transaction Documents; provided that such restructuring is not reasonably expected to materially (i) delay, prevent or hinder the consummation of the transactions contemplated by this Agreement or (ii) increase Seller Transaction Expenses.
(c)      The Party with the primary legal obligation for the reporting and payment of any Transfer Taxes shall file any Tax Returns and other documentation that must be filed in connection with such Transfer Taxes, and shall use its reasonable best efforts to provide such Tax Returns to the other Party at least ten (10) Business Days prior to the date such Tax Returns are due to be filed. If required by Applicable Law, the Parties will, and will cause their respective Affiliates to, join in the execution of any such Tax Returns or other documentation.
(d)      For U.S. federal income tax purposes, it is intended that (i) transactions contemplated by this Agreement (including Steps 17, 18 and 19 of the Restructuring Steps) will qualify as a reorganization under IRC Section 368(a)(1) and (ii) Buyer will be treated as the parent of the U.S. consolidated group of which Alpha Natural Resources was the parent prior to the Closing. The Parties shall file all tax returns in a manner consistent with such treatment.
ARTICLE 9
EMPLOYEE MATTERS
Section 9.01.      Representations and Warranties. Except as set forth in Schedule ‎9.01 , each Seller represents and warrants, on a joint and several basis

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with the other Sellers, to Buyer, as of the date of this Agreement and as of the Closing Date that:
(a)      Schedule ‎9.01(a) contains a complete and accurate list of those employees of any Seller providing services to the Purchased Business as of the date hereof, including employees work location and base wage rate or salary (the “ Business Employees ”). Except as set forth on Schedule ‎9.01(a) , no collective bargaining agreement or other labor union contract is currently in effect with respect to any Business Employee and there is no collective bargaining agreement that could reasonably be expected to be relevant to the Purchased Business after Closing.
(b)      Except as set forth on Schedule ‎9.01(b) , as of the date hereof, no Seller has Knowledge of any union organizing activities or proceedings involving, or any pending petitions for recognition of, a labor union or association as the exclusive bargaining agent for, or where the purpose is to organize, any group or groups of Business Employees. Except as set forth on Schedule ‎9.01(b) , as of the date hereof, no Seller has any Knowledge of any strikes, work stoppages, work slowdowns or lockouts nor of any threats thereof, by or with respect to any of the Business Employees.
(c)      Except as set forth on Schedule ‎9.01(c) , with respect to the Purchased Business, to the Knowledge of Sellers, there exist: (i) no charges pending before a governmental administrative agency involving alleged violations of any anti-discrimination law, wage payment law, labor relations laws or occupational safety and health law; and (i) no threatened or pending litigation arising out of employment-related federal, state or local laws, including laws regarding discrimination, wage payments, labor relations or occupational safety and health.
(d)      Except as set forth on Schedule ‎9.01(d) , within the twelve months prior to the date hereof, no Seller or any Subsidiary of such Seller has failed to comply with the requirements of the WARN Act in connection with any plant closing or mass layoff of individuals employed at or who primarily provided service to the Purchased Business. Except as set forth on Schedule ‎9.01(d) , no Seller or any Subsidiary of such Seller has incurred any material liability under the WARN Act that remains unsatisfied as of the Closing Date. The Sellers have heretofore made available to Buyer a true and complete list of layoffs, by location, implemented by the Sellers or any of their Subsidiaries in the 90-day period preceding the Closing Date at any location employing any individuals employed by the Purchased Business.
(e)      The Alpha Natural Resources 401(k) Plan is qualified under Section 401 of the Code and each trust established in connection with such plan is exempt from federal income taxation under Section 501(a) of the Code, and

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nothing has occurred that has or could reasonably be expected to adversely affect such qualification or exemption.
(f)      Alpha Natural Resources does not have any employees and does not maintain, sponsor or contribute to any employee benefit plan, policy, program, agreement or arrangement, other than the employee benefit plans set forth on Schedule 9.01(f) , each of which will be transferred to ReorgCo or one its Subsidiaries prior to the Closing pursuant to the ReorgCo Transfers.
Section 9.02.      Covenants . (a) The Sellers shall provide to Buyer such information and assistance as is reasonably required or as Buyer may reasonably request to enable Buyer to identify those Business Employees that are required for the operation of the Purchased Business on and after the Closing Date in a manner consistent with past practice. Buyer, as soon as reasonably practicable after the date hereof, but no later than one Business Day prior to the Closing, shall provide the Sellers with a list of those Business Employees to whom it desires to offer employment (whether through Buyer or one of its Affiliates) effective as of the Closing (such list may be updated from time to time by Buyer in consultation with and with the approval of the Sellers, which approval shall not be unreasonably withheld, conditioned or delayed, until one Business Day prior to the Closing) (the Business Employees so listed, the “ Offered Employees ”). As of the Closing Date, the Sellers shall terminate the employment of each Offered Employee and shall cooperate with, and use their commercially reasonable efforts to assist, Buyer with Buyer’s hiring of such Offered Employees. Those Offered Employees who accept Buyer’s offer of employment and commence working for Buyer on the Closing Date (or upon return to work within 14 days after the Closing Date from approved vacation or within 180 days after the Closing Date from approved leave (including disability leave)) shall hereafter be referred to as “ Transferred Employees ”; provided, however, that any union-represented Offered Employee who accepts Buyer's offer of employment and is on a workers' compensation leave, medical leave, sick leave or disability leave (other than such leave that is based on or related to Black Lung Liabilities) as of the Closing Date will be deemed to be a Transferred Employee. For the avoidance of doubt, NonCoreCo and its Affiliates shall retain all Liabilities, including severance or other termination costs, if any, arising as a result of the transactions contemplated by this Agreement, relating to any Business Employees who do not become Transferred Employees.
(b)      Neither Buyer nor any Designated Buyer shall assume any (i) “employee benefit plan” as defined in Section 3(3) of ERISA or (i) other compensatory or health or welfare benefit plan or agreement, in each case, that is sponsored, maintained or contributed to by any Seller or any Seller Subsidiary for the benefit of any Business Employee.

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(c)      (i) Sellers shall use their commercially reasonable efforts to assist Buyer in identifying and establishing, those employee benefit plans and administrative arrangements that are required or appropriate for the operation of the Purchased Business on and after the Closing Date in a manner consistent with past practice. Buyer and Sellers shall cooperate and shall take all reasonable actions as are necessary or appropriate to cause Buyer or a Designated Buyer to adopt or otherwise become the sponsor of, and to maintain, such plans (the “ Buyer Plans ”) and to provide that the Transferred Employees shall be entitled to participate in such plans from and after the Closing Date. Buyer, as soon as reasonably practicable after the date hereof, but no later than one Business Day prior to the Closing, shall provide Sellers with the name of the entity, such entity’s employer identification number, and any other related information requested by Buyer, that will sponsor each Buyer Plan.
(i)      Buyer will cause the Buyer Plans to take into account for purposes of eligibility and vesting thereunder, but not with respect to accrual of benefits other than in the case of severance and vacation, service by the Transferred Employees with the Sellers prior to the Closing as if such service were with Buyer to the same extent such service was credited under a comparable benefit plan of the Sellers prior to the Closing (except to the extent it would result in the duplication of benefits), in each case to the extent permitted under Applicable Law and the terms of the applicable Buyer Plan. In addition, with respect to each Buyer Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), Buyer shall, or shall cause an Affiliate of Buyer sponsoring or maintaining such Buyer Plan, to (A) cause there to be waived any pre-existing condition exclusions, actively at work requirements, insurability requirements or other eligibility limitations, and (A) give effect, in determining any deductible, co-insurance and maximum out‑of‑pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, the Transferred Employees and their dependents under an Employee Plan prior to the Closing, in each case to the extent permitted under Applicable Law and the terms of the applicable Buyer Plan.
(ii)      Following the Closing Date, to the extent permitted by applicable policies of Buyer (including any caps or limits on accrued and unused paid time off thereunder), Buyer will allow Transferred Employees to use all accrued and unused paid time off to which such Transferred Employee is entitled under the applicable policies of the Sellers immediately prior to the Closing Date to the extent reflected on the Financial Statements. The Sellers shall provide Buyer with a record of such accrued paid time off for each Transferred Employee.

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(d)      With respect to Transferred Employees, Buyer and the Sellers shall use the alternative procedure set forth in Revenue Procedure 2004‑53, 2004-34 I.R.B. 320, for purposes of employment tax reporting.
(e)      The Sellers shall be solely responsible for all grievances, arbitrations, claims, demands, or charges of any nature whatsoever including, any such grievances, arbitrations, claims, demands, or charges whether now known or not yet made by any employees, bargaining agents, or governmental agencies, which result from or arise out of any event occurring prior to the Closing Date.
(f)      Except as otherwise provided in Section 2.03(d)(ii), the Sellers shall be responsible for all Workers’ Compensation Liabilities arising out of any occupational injury or injurious exposure occurring on or prior to the Closing and Buyer shall be responsible for all Workers’ Compensation Liabilities arising out of any occupational injury to, or injurious exposure of, any Transferred Employee occurring following the Closing. Buyer, the applicable Sellers and ReorgCo shall enter into the Workers Compensation and Black Lung Benefits Administration Agreement to provide for the administration of certain benefit obligations related to Workers Compensation Liabilities, including but not limited to Black Lung Liabilities, and in each case for billing and reimbursement between Sellers and Buyer and/or the relevant Designated Buyers, as the case may be. For the avoidance of doubt, nothing in this Section 9.02(f) or the Workers Compensation and Black Lung Benefits Administration Agreement shall modify, limit or otherwise alter the obligations of the parties under Section 5.12 of this Agreement.
(g)      Effective as of the Closing Date or any subsequent date reasonably requested by Buyer (but not later than sixty (60) days following the Closing Date), Transferred Employees shall be eligible to effect a “direct rollover” (as described in Section 401(a)(31) of the Code) of their account balances (including participant loans) under the Alpha Natural Resources 401(k) Plan to one or more defined contribution plans maintained by Buyer or its Affiliates (collectively, the “ Buyer 401(k) Plan ”) in the form of cash and participant loan notes. Sellers and Buyer shall take all actions necessary to permit such direct rollovers as soon as practicable after the Closing Date, including Buyer providing evidence to Sellers reasonably satisfactory to Sellers of the qualified status of the Buyer 401(k) Plan and of the ability of the Buyer 401(k) Plan to accept direct rollovers, and to ensure that no outstanding participant loans default prior to the 60th day following the Closing Date, including, without limitation, amending the Buyer 401(k) Plan to allow for direct rollovers and continued payment of outstanding participant loans.
(h)      Nothing in this ‎Section 9.02 is intended to require Buyer to continue employment for any period of time or on any specific terms or conditions of any Transferred Employee after the Closing. Nothing contained in this Agreement

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shall be construed as an amendment or modification of any employee benefit plan of the Sellers or Buyer or any Designated Buyer or as an obligation to effect the transfers described in ‎Section 9.02‎(g).
Section 9.03.      No Third Party Beneficiaries . Without limiting the generality of ‎Section 12.09, the provisions of this ‎Article 9 are included for the sole benefit of the Sellers and Buyer and the Designated Buyers and nothing herein, whether express or implied, shall create any third party beneficiary or other rights in any other Person, including in any current or former employee, independent contractor or other service provider (including any beneficiary or dependent thereof) of the Sellers in respect of continued employment (or resumed employment) with Buyer or any of its Affiliates or the Purchased Business and no provision of this ‎Article 9 shall create any rights in any such Persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Plan, Buyer Plan or any plan or arrangement that may be established by Buyer or any of its Affiliates. No provision of this Agreement shall constitute a limitation on rights to amend, modify or terminate after the Closing Date any such plans or arrangements of the Sellers, Buyer or any of their respective Affiliates.
ARTICLE 10
CONDITIONS TO CLOSING
Section 10.01.      Conditions to Obligations of Buyer and the Sellers . The obligations of Buyer (and any Designated Buyer) and the Sellers to consummate the Closing are subject to the satisfaction of the following conditions:
(a)      Any applicable waiting period under the HSR Act relating to the transactions contemplated hereby shall have expired or been terminated.
(b)      The Confirmation Order shall have been entered by the Bankruptcy Court, shall be in full force and effect, shall not be stayed or subject to any appeal, shall not have been modified or amended without the written consent of the Parties and shall not have been reversed or vacated; provided , that the foregoing condition as it applies to the absence of any appeal may be waived by Buyer without the consent of the Sellers.
(c)      Each of the conditions to the Effective Date of the Plan of Reorganization shall have been satisfied or waived.
(d)      No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any order, writ, judgment, injunction, decree stipulation, determination or award which is in effect and has the effect of making any of the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of the transactions contemplated by this Agreement or causing any of the transactions contemplated by this Agreement to

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be rescinded following completion thereof or delaying the consummation of the transactions contemplated by this Agreement beyond the End Date.
Section 10.02.      Conditions to Obligation of Buyer . The obligation of Buyer (and any Designated Buyer) to consummate the Closing is subject to the satisfaction of the following further conditions:Each Seller and its Affiliates shall have performed or complied with, in each case, in all material respects, all of its obligations hereunder required to be performed by it on or prior to the Closing Date.
(b)      Representations and Warranties.Each of the Fundamental Representations of the Sellers and ReorgCo contained in this Agreement shall be true and correct in all respects on and as of the Effective Date and on and as of the Closing Date, as if made at and as of such date.
(i)      Each of the representations and warranties of the Sellers and ReorgCo contained in this Agreement (without giving effect to any qualification as to materiality, Material Adverse Effect or words of similar import included therein), other than Fundamental Representations of the Sellers and ReorgCo, shall be true and correct in all respects on and as of the Effective Date and on and as of the Closing Date, as if made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), except where the failure to be so true and correct (without giving effect to any qualifications as to materiality, Material Adverse Effect or words of similar import included therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c)      Buyer shall have received a certificate signed by an authorized officer of Alpha Natural Resources certifying the satisfaction of the conditions set forth in the foregoing clauses (a) and (b).
(d)      Since the Effective Date, there shall not have occurred any Material Adverse Effect (or any development that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect).
(e)      Each of the Mining Complexes other than the Alpha Coal West Complex will be delivered with at least the Minimum Coal Inventory for such location (the “ Minimum Coal Inventory Condition ”); provided , that if Alpha Natural Resources reasonably anticipates that a location will fail to be delivered with such Minimum Coal Inventory, the condition in this ‎Section 10.02(e) shall nevertheless be satisfied if (x) Alpha Natural Resources provides notice to Buyer of such failure, and (y) unless Buyer elects to waive the Minimum Coal Inventory condition with respect to such location within two Business Days after it has received such notice from Alpha Natural Resources, Sellers arrange to

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acquire and have delivered to such location an amount of coal inventory sufficient for such location to achieve its Minimum Coal Inventory (it being understood that the cost of acquiring such inventory and transporting it to the location shall be borne by the Sellers).
(f)      The Purchased Assets shall include at least $130,000,000 of liquidity in the aggregate consisting of unrestricted cash or cash equivalents and/or an asset-backed loan facility on terms satisfactory to Buyer, of which at least $80,000,000 shall be in unrestricted operating cash (the condition set forth in this ‎Section 10.02(f), the “ Liquidity Condition ”).
(g)      All (x) Assumed Contracts that require novation will have been novated to the Buyer and (y) the Assumed Contracts set forth on Schedule ‎10.02(g) will have been duly assigned to Buyer at or prior to the Closing.
(h)      Sellers and Buyer shall have entered into a settlement with all applicable Federal, State and local Governmental Authorities reasonably satisfactory to Buyer with respect to permit transfers, bonding requirements and regulatory compliance.
(i)      The Bankruptcy Court determines that Buyer or the Designated Buyers can purchase the Purchased Assets free and clear of the successor clause in each of the collective bargaining agreements set forth in Schedule ‎9.01(a) (the “ CBAs ”), Sellers obtain the applicable labor union’s consent to waive/remove the successor clause in each of the CBAs, or the Bankruptcy Court grants a motion (the “ Section 1113(c) Motion ”) filed by the applicable Sellers pursuant to 1113(c) of the Bankruptcy Code authorizing such Sellers to reject each of the CBAs (provided that such condition may not be waived without Alpha Natural Resource’s written consent).
(j)      The Confirmation Order shall have been entered by the Bankruptcy Court (provided that such condition may not be waived without Alpha Natural Resources’ written consent).
(k)      The objection deadline shall have passed for all counterparties to Assumed Contracts and Assumed Leases to object to the Cure Costs contained in their respective Cure Notice; provided that such objection deadline shall be no less than seven days after such Cure Notice is served on each such counterparty.
(l)      At least three Business Days prior to the Closing Date, Buyer shall have received from the Sellers’ Representative a complete and unredacted schedule of Persons from Question 3b of each of the Sellers’ respective Statements of Financial Affairs filed with the Bankruptcy Court.
(m)      No Seller or any Affiliate of Seller, nor any officer or director thereof, shall be permit blocked on the AVS (or any applicable state equivalent

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database or system) by any Governmental Authority nor shall any other Person be listed on the AVS (or any applicable state equivalent database or system) resulting in, or that would reasonably be expected to result in, any of the Sellers, any Affiliates of any Seller or any Purchased Assets being permit blocked by any Governmental Authority.
(n)      (i) Arrangements satisfactory to Buyer shall be in place regarding the regulatory bonding and security arrangements required in connection with the transfer of Transferred Permits/Licenses as contemplated herein and (i) Buyer shall be satisfied that there have been no adverse developments or occurrences that would reasonably be expected to be material and adverse in the context of the transfer of one or more Transferred Permits/Licenses.
(o)      Except as expressly permitted by this Agreement or as consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed) and to the extent not inconsistent with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, any orders entered by the Bankruptcy Court in the Bankruptcy Case ( provided that the Sellers shall (x) not, without the prior written consent of Buyer, seek any order of the Bankruptcy Court requiring them to refrain from taking any action described in ‎Section 5.01 and (y) use their commercially reasonable efforts to oppose any motion or other request seeking such an order of the Bankruptcy Court) or other Applicable Law, from the date hereof through the Closing, the Sellers and their Subsidiaries shall have conducted the Purchased Business in the ordinary course consistent with past practice in all material respects.
(p)      Buyer or the applicable Designated Buyer shall have (or concurrently upon consummation of the Closing shall acquire) all Licenses necessary to operate the Purchased Business in all material respects.
(q)      Arrangements reasonably satisfactory to Buyer shall be in place regarding Buyer’s coverage for Workers’ Compensation Liabilities on and after the Closing.
(r)      Sellers shall have consummated the Pre-Closing Restructuring Steps (other than any Pre-Closing Restructuring Steps that are to be performed solely by Buyer and its Subsidiaries) in a manner reasonably satisfactory to Buyer and Buyer shall be reasonably satisfied that the Post-Closing Restructuring Steps will be consummated in a manner reasonably satisfactory to Buyer.
(s)      Each of the Contura CBAs shall have been ratified in accordance with its terms.
The foregoing conditions of this ‎Section 10.02 are for the sole benefit of Buyer and may be waived by Buyer (except with respect to ‎Section 10.02‎(i) and ‎Section 10.02(j)), in whole or in part, at any time and from time to time in the sole

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discretion of Buyer. The failure by Buyer at any time to exercise any of its rights hereunder shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time.
Section 10.03.      Conditions to Obligation of the Sellers . The obligation of the Sellers to consummate the Closing is subject to the satisfaction of the following further conditions:
(a)      Buyer shall have performed or complied with, in each case, in all material respects, all of its obligations hereunder required to be performed by it on or prior to the Closing Date.
(b)      Representations and Warranties.
(i)      Each of the Fundamental Representations of Buyer contained in this Agreement shall be true and correct in all respects on and as of the Effective Date and on and as of the Closing Date, as if made at and as of such date.
(ii)      Each of the representations and warranties of Buyer contained in this Agreement (without giving effect to any qualification as to materiality, material adverse effect or words of similar import included therein), other than Fundamental Representations of Buyer, shall be true and correct in all material respects on and as of the Effective Date and on and as of the Closing Date, as if made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date).
(c)      The Sellers shall have received a certificate signed by an authorized officer of Buyer certifying the satisfaction of the conditions set forth in the foregoing clauses ‎(a) and ‎(b).
(d)      Sellers and Buyer shall have entered into a settlement with all applicable Federal, State and local Governmental Authorities reasonably satisfactory to Alpha Natural Resources with respect to permit transfers, bonding requirements and regulatory compliance.
(e)      (i)  Arrangements satisfactory to Alpha Natural Resources shall be in place regarding the regulatory bonding and security arrangements required in connection with the transfer of Transferred Permits/Licenses as contemplated herein and (i) Alpha Natural Resources shall be satisfied that there have been no adverse developments or occurrences that would reasonably be expected to be material and adverse in the context of the transfer of one or more Transferred Permits/Licenses.

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(f)      Buyer and its Subsidiaries shall have consummated the Pre-Closing Restructuring Steps that are to be performed solely by Buyer and its Subsidiaries in a manner reasonably satisfactory to Alpha Natural Resources.
The foregoing conditions of this ‎Section 10.02 are for the sole benefit of the Sellers and may be waived by the Sellers, in whole or in part, at any time and from time to time in the sole discretion of the Sellers. The failure by the Sellers at any time to exercise any of its rights hereunder shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time.
Section 10.04.      Frustration of Closing Conditions. No Party may rely on the failure of any condition set forth in this ‎Article 10 to be satisfied to excuse such Party’s obligation to effect the Closing if such failure was caused by such Party’s breach of this Agreement.
ARTICLE 11
TERMINATION
Section 11.01.      Grounds for Termination. This Agreement may be terminated at any time prior to the Closing:
(a)      by mutual written agreement of Alpha Natural Resources and Buyer;
(b)      by either Alpha Natural Resources or Buyer if the Closing shall not have been consummated on or before July 31, 2016 (the “ End Date ”); provided , however , that at the time of such termination, the Party seeking to terminate shall not be in material breach of its obligations under or any representation or warranty made in, this Agreement, such that any condition to Closing of the other Party would not be satisfied, including such first Party’s obligation to consummate the Closing on the terms and subject to the conditions set forth herein;
(c)      by either Alpha Natural Resources or Buyer if consummation of the transactions contemplated hereby would violate any nonappealable final order, decree or judgment of any Governmental Authority having competent jurisdiction;
(d)      by Alpha Natural Resources if (i) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Buyer set forth in this Agreement shall have occurred that would cause any of the conditions set forth in ‎Section 10.01 or ‎10.03 not to be satisfied and (i) such condition is incapable of being cured or, if curable, is not cured by Buyer by the earlier of (A) within 10 Business Days after the giving of written notice of such breach or failure and (A) the End Date; provided , that at the time of such

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termination, the Sellers shall not be in material breach of its obligations under this Agreement;
(e)      by Buyer if (i) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Sellers or ReorgCo set forth in this Agreement shall have occurred that would cause any of the conditions set forth in ‎Section 10.01 or ‎10.02 not to be satisfied and (i) such condition is incapable of being cured or, if curable, is not cured by the Sellers by the earlier of (A) within ten (10) Business Days after the giving of written notice of such breach or failure and (A) the End Date; provided , that at the time of such termination, Buyer shall not be in material breach of its obligations under this Agreement;
(f)      by Buyer if Seller or any of its Affiliates shall have taken any steps in furtherance of an Alternative Transaction;
(g)      by Buyer upon the appointment of a trustee or other examiner (except a fee examiner) pursuant to Section 1104 of the Bankruptcy Code;
(h)      by Buyer upon (x) the failure to obtain entry of the Confirmation Order (subject to the Bankruptcy Court’s availability) on or before July 12, 2016 or (y) any declaration of a Default under the DIP Credit Agreement that is not waived, cured or determined by the Bankruptcy Court not to be an Event of Default (as defined in the DIP Credit Agreement);
(i)      by Buyer or Alpha Natural Resources upon the dismissal of the Bankruptcy Case or the conversion of the Bankruptcy Case into a case under chapter 7 of the Bankruptcy Code;
(j)      by Buyer or Alpha Natural Resources upon the permanent denial of any approval required under ‎Section 10.01(a);
(k)      by Buyer or Alpha Natural Resources if an order is entered by any Governmental Authority with jurisdiction over the subject matter holding that Buyer may not, pursuant to section 363(k) of the Bankruptcy Code, credit bid on account of the Diminution Claim as contemplated by the Pre-Closing Restructuring Steps or otherwise effect the Credit Release;
(l)      by Buyer or Alpha Natural Resources if a court of competent jurisdiction or other Governmental Authority has issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Closing and such order or action has become final and non-appealable.
The Party desiring to terminate this Agreement pursuant to ‎Section 11.01 shall give notice of such termination to the other Parties.

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Section 11.02.      Effect of Termination . If this Agreement is terminated as permitted by ‎Section 11.01, such termination shall be without liability of any Party or any of its Affiliates (or any stockholder, director, officer, employee, agent, consultant or representative of such Party) to the Parties to this Agreement; provided that if such termination shall result from fraud by a Party, such Party shall be fully liable for any and all Losses incurred or suffered by the other Parties as a result of such fraud. The provisions of Sections ‎5.07(b), ‎7.04, this ‎Section 11.02 and ‎Article 12 shall survive any termination hereof pursuant to ‎Section 11.01.
ARTICLE 12
MISCELLANEOUS
Section 12.01.      Notices . All notices, requests and other communications to any Party shall be in writing (including facsimile transmission and electronic mail (“ e-mail ”) transmission) and shall be given,
if to Buyer, to:
Contura Energy, Inc.
P.O. Box 848
Bristol, TN 37621-0848
Attention: General Counsel
with a copy to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: William Taylor
Damian Schaible
Lee Hochbaum
Facsimile No.: (212) 701-5800
E-mail: william.taylor@davispolk.com
damian.schaible@davispolk.com
lee.hochbaum@davispolk.com
if to the Sellers or to Sellers’ Representative, to:
Alpha Natural Resources, Inc.
One Alpha Place
P.O. Box 16429
Bristol, Virginia 24209
Attention: General Counsel
Facsimile No.: (276) 623-2955
E-mail: mmanno@alphanr.com

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with a copy to:
Jones Day
1420 Peachtree Street, N.E., Suite 800
Atlanta, GA 30309-3053
Attention: Jeffrey B. Ellman
Facsimile No.: (404) 581-8330
E-mail: jbellman@jonesday.com
if to ReorgCo, to:
Alpha Natural Resources Holdings, Inc.
300 Running Right Way
P.O. Box 261
Julian, WV 25529
Attention: General Counsel
with a copy to:
Jones Day
1420 Peachtree Street, N.E., Suite 800
Atlanta, GA 30309-3053
Attention: Jeffrey B. Ellman
Facsimile No.: (404) 581-8330
E-mail: jbellman@jonesday.com
or such other address or facsimile number as such Party may hereafter specify for the purpose by notice to the other Parties. All notices and other communications given in accordance with the provisions of this Agreement shall be deemed to have been given and received when delivered by hand or transmitted by facsimile (with confirmation of transmission) or email, three Business Days after the same are sent by certified or registered mail, postage prepaid, return receipt requested or one Business Day after the same are sent by a reliable overnight courier service, with acknowledgement of receipt.
Section 12.02.      Survival . All covenants and agreements contained herein which by their terms are to be performed in whole or in part, or which prohibit actions, subsequent to the Closing shall, solely to the extent such covenants and agreements are to be performed, or prohibit actions, subsequent to the Closing, survive the Closing in accordance with their terms until fully performed or satisfied.  All other covenants and agreements contained herein, and all representations and warranties contained herein or in any certificates delivered hereunder, shall not survive the Closing, except for the Closing and pre-Closing

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covenants and obligations with respect to (x) the obligations of Alpha Natural Resources to transfer, or to bring about the transfer, to Buyer and/or the relevant Designated Buyers of title to, and ownership of, the Purchased Assets and the obligation of Buyer to assume the Assumed Liabilities, (y) the Excluded Liabilities and Excluded Assets and (z) the Pre-Closing Restructuring Steps. For the avoidance of doubt, in the event that any affirmative covenant or agreement contained herein (other than the covenants and agreements contained in ‎Section 5.01) has been performed prior to the entry into this Agreement, the performance of such covenant and agreement shall, for purposes of this Agreement, be deemed to have occurred pursuant to, and after the entry into, this Agreement, and this Agreement shall in all respects be construed accordingly.
Section 12.03.      Amendments and Waivers . (a) Any provision of this Agreement may be amended or waived (and without limiting the foregoing, Buyer may waive, in whole or in part, its right to receive a Purchase Price adjustment under ‎Section 2.11) if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each Party, or in the case of a waiver, by the Party against whom the waiver is to be effective.
(b)      No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 12.04.      Expenses . Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.
Section 12.05.      Successors and Assigns . The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that no Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other Party (except in the event of any successors of Sellers in connection with the Bankruptcy Case). Notwithstanding the foregoing sentence, Buyer shall have the right to assign to any one or more of its Affiliates any of its rights or obligations under this Agreement, the Transaction Documents or any other document or instrument entered into or delivered in connection with the transactions contemplated by this Agreement or the Transaction Documents, in whole or in part; provided that no assignment hereunder shall relieve Buyer of its obligations under this Agreement, the Transaction Documents or any other such document or instrument and Buyer shall cause such assignees to perform such obligations on behalf of Buyer in accordance with the terms of this Agreement, the Transaction Documents or such other document or instrument, as applicable.

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Section 12.06.      Governing Law . This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state to the extent such principles or rules would require or permit the application of laws of another jurisdiction.
Section 12.07.      Jurisdiction . To the fullest extent permitted by Applicable Law, the Parties (a) agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought (i) in the Bankruptcy Court, if brought prior to the entry of a final decree closing the Bankruptcy Case and (i) in the Chancery Court of the State of Delaware (or, if the Delaware Chancery Court shall be unavailable, any other court of the State of Delaware or, in the case of claims to which the federal courts have exclusive subject matter jurisdiction, any federal court of the United States sitting in the State of Delaware) (the “ Delaware Courts ”), if brought after entry of such final decree closing the Bankruptcy Case, and shall not be brought, in each case, in any other state or federal court in the United States, (a) agree to submit to the exclusive jurisdiction of the Bankruptcy Court or the Delaware Courts, as applicable, pursuant to the preceding clauses ‎(a)‎(i) and ‎(a)‎(ii), for purposes of all suits, actions or proceedings arising out of, or in connection with this Agreement or the Transaction Documents or the transactions contemplated hereby and thereby, (a) waive and agree not to assert any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in ‎Section 12.01 shall be deemed effective service of process on such Party.
Section 12.08.      WAIVER OF JURY TRIAL . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.09.      Counterparts; Effectiveness; Third Party Beneficiaries . This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Subject to entry of the Confirmation Order, this Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Parties. Until and unless each Party has received a counterpart hereof signed by the other Parties, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether

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by virtue of any other oral or written agreement or other communication). No provision of this Agreement is intended to confer any rights, benefits, remedies, or Liabilities hereunder upon any Person other than the Parties, the Designated Buyers and their respective successors and assigns; provided that the Non-Party Affiliates are express third party beneficiaries of ‎Section 12.16.
Section 12.10.      Entire Agreement . This Agreement, the Transaction Documents, the Buyer Confidentiality Agreement and the Seller Confidentiality Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both oral and written, between the Parties with respect to the subject matter of this Agreement.
Section 12.11.      Bulk Sales Laws . The Parties each hereby waive compliance by the Parties with the provisions of the “bulk sales,” “bulk transfer” or similar laws of any state.
Section 12.12.      Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 12.13.      Disclosure Schedules . The Sellers and Buyer, as applicable, have set forth information on the Disclosure Schedule in a section thereof that corresponds to the section of this Agreement to which it relates. A matter set forth in one section of a Schedule need not be set forth in any other section so long as its relevance to such other section of the Schedule or section of the Agreement would be reasonably apparent on the face of the information disclosed therein to a Person with no independent knowledge of the relevant subject matter. The Parties acknowledge and agree that (i) the Schedules to this Agreement may include certain items and information solely for informational purposes for the convenience of Buyer or the Sellers, as applicable, and (i) the disclosure by the Sellers or the Buyer, as applicable, of any matter in the Schedules shall not be deemed to constitute an acknowledgment by the Sellers or the Buyer, as applicable, that the matter is required to be disclosed by the terms of this Agreement or that the matter is material.
Section 12.14.      Specific Performance. The Parties acknowledge and agree that irreparable damage for which monetary damages, even if available, would not

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be an adequate remedy, would occur if the Parties do not perform any provision of this Agreement in accordance with the terms hereof, or otherwise breach any such provision, and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that (i)  there is adequate remedy at law or (i) an award of specific performance is not an appropriate remedy for any reason at law or equity. Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.
Section 12.15.      Sellers’ Representative . (a) Each Seller designates Sellers’ Representative as the representative and attorney-in-fact of such Seller with full power and authority, including power of substitution, acting in the name of and on behalf of such Seller, for all purposes under this Agreement, including receipt of disclosures, granting and/or executing consents or waivers, receiving notices, settling disputes with respect to indemnification claims and the calculation of the Purchase Price and agreeing to and executing amendments and/or modifications to this Agreement.
(b)      By executing this Agreement under the heading of “Sellers’ Representative,” Alpha Natural Resources (and, effective upon dissolution of Alpha Natural Resources, ReorgCo) hereby (i) accepts its appointment and authorization to act as Sellers’ Representative as attorney-in-fact and agent on behalf of the Sellers in accordance with the terms of this Agreement and (i) agrees to perform its obligations under, and otherwise comply with, this ‎Section 12.15.
(c)      In the performance of its duties hereunder, Sellers’ Representative shall be entitled to rely upon any document or instrument reasonably believed by it to be genuine and accurate. Sellers’ Representative may assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. In the absence of proven willful misconduct, (i) Sellers’ Representative shall not be liable to the Sellers with respect to its performance of the functions specified in this Agreement, and (i) no Seller shall commence, prosecute or maintain any actions or proceedings against Sellers’ Representative with respect to its performance of the functions specified in this Agreement. In determining the occurrence of any fact, event or contingency, Sellers’ Representative may request from any of the Sellers such reasonable additional evidence as Sellers’ Representative in its sole discretion may deem necessary, and may at any time inquire of and consult with others, including any

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of the Sellers, and shall not be liable to any Seller for any damages resulting from any delay in acting hereunder pending receipt and examination of additional evidence requested.
(d)      Each Seller and ReorgCo agrees to cause its respective Affiliates to comply with their respective obligations under this Agreement.
(e)      ReorgCo will automatically succeed Alpha Natural Resources as Sellers’ Representative upon Alpha Natural Resources’ dissolution.
Section 12.16.      Non-Recourse . All claims or causes of action (whether in contract or in tort or otherwise) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), may be made only against the Persons that are expressly identified as Parties ( i.e. , the Sellers, Sellers’ Representative, ReorgCo, or Buyer and/or any Designated Buyers). No Person who is not a named Party to this Agreement, including any past, present or future direct or indirect director, officer, employee, incorporator, member, manager, partner, equityholder, creditor, Affiliate, agent, attorney or other representative of any named Party to this Agreement or any of their Affiliates (such Persons, collectively, “ Non-Party Affiliates ”), shall have any liability (whether in contract or in tort or otherwise, or based upon any theory that seeks to impose liability of an entity Party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of this Agreement or its negotiation or execution, and each Party waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates.
[Signature Page Follows]


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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
CONTURA ENERGY, INC.
By:
/s/ John S. DeGroote
 
Name:
John S. DeGroote
 
Title:
President & Secretary


ALPHA NATURAL RESOURCES, INC.,     in its capacity as a Seller and Sellers’ Representative
By:
/s/ Andrew Eidson
 
Name:
Andrew Eidson
 
Title:
Executive Vice President, Chief Financial Officer and Treasurer


ANR, INC.
By:
/s/ David J. Stetson
 
Name:
David J. Stetson
 
Title:
President & Chief Executive Officer

[Signature Page to Asset Purchase Agreement ]
Exhibit 3.1

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION

OF

CONTURA ENERGY, INC.

Pursuant to the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (“ Delaware Law ”), Contura Energy, Inc., a corporation organized under the laws of the State of Delaware, does hereby certify that:
FIRST: The present name of the corporation is Contura Energy, Inc. (the “ Corporation ”). The Corporation was incorporated on June 10, 2016 under the name Contura Energy, Inc., pursuant to Delaware Law.
SECOND: The Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety as hereinafter provided for (the “ Second Amended and Restated Certificate of Incorporation ”). The Second Amended and Restated Certificate of Incorporation herein certified has been duly adopted by the Corporation’s Board of Directors and stockholders in accordance with the provisions of Sections 228, 242 and 245 of Delaware Law. The Second Amended and Restated Certificate of Incorporation shall become effective upon filing with the Secretary of State of the State of Delaware.
THIRD: The Second Amended and Restated Certificate of Incorporation of the Corporation shall, at the effective time, read as follows:
ARTICLE 1.
NAME
The name of the corporation is Contura Energy, Inc. (the “ Corporation ”).
ARTICLE 2.
REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
ARTICLE 3.
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under Delaware Law.

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ARTICLE 4.
CAPITAL STOCK
(A)      Authorized Shares
1.     Classes of Stock. The total number of shares of stock that the Corporation shall have authority to issue is 55,000,000, consisting of 50,000,000 shares of Common Stock, par value $0.01 per share (the ‘ Common Stock ’), and 5,000,000 shares of Preferred Stock, par value $0.01 per share (the ‘ Preferred Stock’ ).
2.     Preferred Stock. The Board of Directors is hereby empowered, without any action or vote by the Corporation’s stockholders (except as may otherwise be provided by the terms of any class or series of Preferred Stock then outstanding), to authorize by resolution or resolutions from time to time the issuance of one or more classes or series of Preferred Stock and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by Delaware Law.
(B)      Voting Rights
Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of such affected class or series are entitled, either separately or together with the holders of one or more other such classes or series, to vote thereon pursuant to this Second Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) or pursuant to Delaware Law.
(C)      Dividends
Subject to the rights of any holders of any class or series of Preferred Stock then outstanding, the holders of Common Stock shall be entitled to the payment of dividends when and as declared by the Board of Directors in accordance with applicable law and to receive other distributions from the Corporation. Any dividends declared by the Board of Directors to the holders of the then-outstanding Common Stock shall be paid to the holders thereof pro rata in accordance with the number of shares of Common Stock held by each such holder as of the record date of such dividend.

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ARTICLE 5.
BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation (the “ Bylaws ”).
The stockholders may adopt, amend or repeal the Bylaws only with the affirmative vote of the holders of not less than 66 2/3% of the voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.
ARTICLE 6.
BOARD OF DIRECTORS
(A)      Power of the Board of Directors . The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors.
(B)      Number of Directors . The number of directors which shall constitute the Board of Directors shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the Board of Directors.
(C)      Election of Directors . Each director shall be elected annually at each annual meeting of stockholders to hold office for a term expiring at the next annual meeting of stockholders, with each director to hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal. In no event will a decrease in the number of directors shorten the term of any incumbent director. There shall be no cumulative voting in the election of directors. Election of directors need not be by written ballot unless the Bylaws so provide.
(D)      Vacancies . Vacancies on the Board of Directors resulting from death, resignation, removal or otherwise and newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors calls a special meeting for which the election of directors is included as business or as otherwise required by law, be filled solely by a majority of the directors then in office (although less than a quorum) or by the sole remaining director, and each director so elected shall hold office for a term ending at the next annual meeting of stockholders, and until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal.
(E)      Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created shall be filled in accordance with ‎Article 6(D) herein.

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(F)      Preferred Stock Directors . Notwithstanding anything else contained herein, whenever the holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of such class or series of Preferred Stock adopted by resolution or resolutions adopted by the Board of Directors pursuant to ‎Article 4(A) hereto, and such directors so elected shall not be subject to the provisions of this ‎Article 6 unless otherwise provided therein.
ARTICLE 7.
MEETINGS OF STOCKHOLDERS
(A)      Annual Meetings . An annual meeting of stockholders shall be held for the election of directors and to transact such other business as may properly be brought before the meeting at such place, on such date, and at such time as the Board of Directors shall determine.
(B)      Special Meetings. Special meetings of the stockholders may be called only by the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors. Notwithstanding the foregoing, whenever holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, such holders may call, pursuant to the terms of such class or series of Preferred Stock adopted by resolution or resolutions of the Board of Directors pursuant to Article 4(A) hereto, special meetings of holders of such Preferred Stock.
(C)      No Action by Written Consent. Subject to the rights of the holders of any class or series of Preferred Stock then outstanding, as may be set forth in the resolution or resolutions adopted by the Board of Directors pursuant to ‎Article 4(A) hereto for such class or series of Preferred Stock, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of stockholders at an annual or special meeting duly noticed and called in accordance with Delaware Law, as amended from time to time, and this Article 7 and may not be taken by written consent of stockholders without a meeting.
ARTICLE 8.
INDEMNIFICATION
(A)      Limited Liability. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Delaware Law.
(B)      Right to Indemnification.
(1)    Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal,

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administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, limited liability company, partnership, joint venture, trust or other enterprise (an “ Indemnitee ”), shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware Law. The right to indemnification conferred in this Article 8 shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to indemnification conferred in this Article 8 shall be a contract right.
(2)    The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law.
(C)      Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under Delaware Law.
(D)      Nonexclusivity of Rights. The rights and authority conferred in this Article 8 shall not be exclusive of any other right that any person may otherwise have or hereafter acquire.
(E)      Preservation of Rights. Neither the amendment nor repeal of this Article 8, nor the adoption of any provision of this Second Amended and Restated Certificate of Incorporation or the Bylaws, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
(F)      Jointly Indemnifiable Claims . Given that certain Jointly Indemnifiable Claims (as defined below) may arise due to the service of an Indemnitee as a director and/or officer of the Corporation at the request of an Indemnitee-Related Entity (as defined below), the Corporation shall be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification or advancement of expenses in connection with any such Jointly Indemnifiable Claims, pursuant to and in accordance with the terms of this ‎Article 8, irrespective of any right of recovery an Indemnitee may have from any Indemnitee-Related Entity. Under no circumstance shall the Corporation be entitled to any right of subrogation against or contribution by an Indemnitee-Related

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Entity and no right of advancement, indemnification or recovery an Indemnitee may have from any Indemnitee-Related Entity shall reduce or otherwise alter the rights of an Indemnitee or the obligations of the Corporation under this ‎Article 8. In the event that an Indemnitee-Related Entity shall make any payment to the Indemnitee in respect of indemnification or advancement of expenses with respect to any Jointly Indemnifiable Claim, such Indemnitee-Related Entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Corporation, and the Indemnitee shall execute all documents and instruments reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents and instruments as may be necessary to enable such Indemnitee-Related Entity effectively to bring suit to enforce such rights. Each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Article 8(F) and entitled to enforce this Article 8(F).
The term “ Indemnitee-Related Entity ” means any corporation, limited liability company, partnership, joint venture, trust or other enterprise (other than the Corporation or any other corporation, partnership, joint venture, trust or other enterprise for which the Indemnitee has agreed, on behalf of the Corporation or at the Corporation’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an Indemnitee may be entitled to indemnification or advancement of expenses in respect of a matter with respect to which, in whole or in part, the Corporation may also have an indemnification or advancement obligation.
The term “ Jointly Indemnifiable Claims ” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which an Indemnitee shall be entitled to indemnification or advancement of expenses from both an Indemnitee-Related Entity and the Corporation pursuant to applicable law or any agreement, certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Corporation or an Indemnitee-Related Entity, as applicable.
ARTICLE 9.
AMENDMENTS
The Corporation reserves the right to amend this Second Amended and Restated Certificate of Incorporation in any manner permitted by the Delaware Law and all rights and powers conferred upon stockholders, directors and officers herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Articles ‎4(B), ‎5, ‎6, ‎7, ‎8 and this ‎Article 9 may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying or permitting the circumvention of the provisions set forth in any of Articles ‎4(B), ‎5, ‎6, ‎7, ‎8 or this ‎Article 9, unless such action is approved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.

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IN WITNESS WHEREOF, said Corporation has caused this Second Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer on this [●] day of [●] 2018.
CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:

7
Exhibit 3.2

SECOND AMENDED AND RESTATED BYLAWS

OF

CONTURA ENERGY, INC.

* * * * *
ARTICLE 1
OFFICES
Section 1.01 . Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.02 . Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
Section 1.03 . Books. The books of the Corporation may be kept within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.01 . Time and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the State of Delaware, on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a designation by the Board of Directors).
Section 2.02 . Annual Meetings. An annual meeting of stockholders shall be held for the election of directors and to transact such other business as may properly be brought before the meeting at such place, on such date, and at such time as the Board of Directors shall determine.
Section 2.03 . Special Meetings. Special meetings of the stockholders may be called only by the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors. Notwithstanding the foregoing, whenever holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, such holders may call, pursuant to the terms of such class or series of Preferred Stock adopted by resolution or resolutions of the Board of Directors as provided in the Amended and Restated Certificate of Incorporation, special meetings of holders of such Preferred Stock.



Section 2.04 . Notice of Meetings and Adjourned Meetings; Waivers of Notice. (a) Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (“ Delaware Law ”), such notice shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. The Board of Directors or the chairman of the meeting may adjourn the meeting to another time or place (whether or not a quorum is present), and notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
(b)      A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.05 . Quorum. Unless otherwise provided under the Amended and Restated Certificate of Incorporation or these Second Amended and Restated Bylaws (“ Bylaws ”) and subject to Delaware Law, the presence, in person or by proxy, of the holders of a majority of the total voting power of all outstanding securities of the Corporation generally entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the chairman of the meeting or a majority in voting interest of the stockholders present in person or represented by proxy may adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted that might have been transacted at the meeting as originally notified.

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Section 2.06 . Voting. (a) Unless otherwise provided in the Amended and Restated Certificate of Incorporation and subject to Delaware Law, each stockholder shall be entitled to one vote for each outstanding share of capital stock of the Corporation held by such stockholder. Any share of capital stock of the Corporation held by the Corporation shall have no voting rights. Except as otherwise provided by law, the Amended and Restated Certificate of Incorporation or these Bylaws, in all matters other than the election of directors, the affirmative vote of the holders of a majority of the votes cast at the meeting on the subject matter shall be the act of the stockholders. Abstentions and broker non-votes shall not be counted as votes cast. Subject to the rights of the holders of any class or series of preferred stock to elect additional directors under specific circumstances, as may be set forth in the certificate of designations for such class or series of preferred stock, directors shall be elected by a plurality of the votes of the shares of capital stock of the Corporation present in person or represented by proxy at the meeting and entitled to vote on the election of directors.
(b)    Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized, or by proxy sent by cable, telegram or by any means of electronic communication permitted by law, which results in a writing from such stockholder or by his attorney, and delivered to the secretary of the meeting. No proxy shall be voted after three (3) years from its date, unless said proxy provides for a longer period.
Section 2.07 . Action by Consent . Subject to the rights of the holders of any class or series of preferred stock then outstanding, as may be set forth in the certificate of designations for such class or series of preferred stock, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of stockholders at an annual or special meeting duly noticed and called in accordance with Delaware Law and may not be taken by written consent of stockholders without a meeting.
Section 2.08 . Organization. At each meeting of stockholders, the Chairman of the Board of Directors, if one shall have been elected, or in the Chairman’s absence or if one shall not have been elected, the director designated by the vote of the majority of the directors present at such meeting, shall act as chairman of the meeting. The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof.
Section 2.09 . Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting.

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Section 2.10. Nomination of Directors and Proposal of Other Business.
(a)      Annual Meetings of Stockholders . (i) Nominations of persons for election to the Board of Directors or the proposal of other business to be transacted by the stockholders at an annual meeting of stockholders may be made only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board of Directors or any committee thereof, (C) as may be provided in the certificate of designations for any class or series of preferred stock or (D) by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in paragraph (ii) of this Section 2.10(a) and at the time of the annual meeting, who shall be entitled to vote at the meeting and who complies with the procedures set forth in this Section 2.10(a), and, except as otherwise required by law, any failure to comply with these procedures shall result in the nullification of such nomination or proposal.
(ii)    For nominations or other business to be properly brought before an annual meeting of stockholders by a stockholder pursuant to clause (D) of paragraph (i) of this Section 2.10(a), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business (other than the nominations of persons for election to the Board of Directors) must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not less than 120 days nor more than 150 days prior to the first anniversary of the preceding year’s annual meeting of stockholders; provided, however , that in the event that the date of the annual meeting is advanced more than 30 days prior to such anniversary date or delayed more than 70 days after such anniversary date then to be timely such notice must be received by the Corporation no earlier than 120 days prior to such annual meeting and no later than the later of 70 days prior to the date of the meeting or the 10 th day following the day on which public announcement of the date of the meeting was first made by the Corporation; provided, further , that, solely for the purposes of the notice requirements under this ‎Section 2.10(a), with respect to the annual meeting of stockholders of the Company for 2019, the anniversary of the preceding year’s annual meeting of stockholders shall be deemed to be May 15, 2018. In no event shall the adjournment or postponement of any meeting, or any announcement thereof, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(iii)      A stockholder’s notice to the Secretary shall set forth (A) as to each person whom the stockholder proposes to nominate for election or reelection as a director: (1) all information relating to such person that is

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required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934 (as amended (together with the rules and regulations promulgated thereunder), the “ Exchange Act ”) including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; and (2) a reasonably detailed description of any compensatory, payment or other financial agreement, arrangement or understanding that such person has with any other person or entity other than the Corporation including the amount of any payment or payments received or receivable thereunder, in each case in connection with candidacy or service as a director of the Corporation (a “ Third-Party Compensation Arrangement ”), (B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the text of the proposed amendment), the reasons for conducting such business and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made:
(1)      the name and address of such stockholder (as they appear on the Corporation’s books) and any such beneficial owner;
(2)      for each class or series, the number of shares of capital stock of the Corporation that are held of record or are beneficially owned by such stockholder and by any such beneficial owner;
(3)      a description of any agreement, arrangement, understanding between or among such stockholder and any such beneficial owner, any of their respective affiliates or associates, and any other person or persons (including their names) in connection with the proposal of such nomination or other business;
(4)      a description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of, or any other agreement, arrangement or understanding that has been made, the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for, or increase or

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decrease the voting power of, such stockholder or any such beneficial owner or any such nominee with respect to the Corporation’s securities;
(5)      a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to bring such nomination or other business before the meeting;
(6)      a representation as to whether such stockholder or any such beneficial owner intends or is part of a group that intends to (i) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the voting power of the Corporation’s outstanding capital stock required to approve or adopt the proposal or to elect each such nominee and/or (ii) otherwise to solicit proxies from stockholders in support of such proposal or nomination;
(7)      any other information relating to such stockholder, beneficial owner, if any, or director nominee or proposed business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies in support of such nominee or proposal pursuant to Section 14 of the Exchange Act; and
(8)      such other information relating to any proposed item of business as the Corporation may reasonably require to determine whether such proposed item of business is a proper matter for stockholder action.
If requested by the Corporation, the information required under clauses ‎2.10(a)(iii)(C)(2), ‎(3) and ‎(4) of the preceding sentence of this ‎Section 2.10 shall be supplemented by such stockholder and any such beneficial owner not later than 10 days after the record date for the meeting to disclose such information as of the record date.
(b)      Special Meetings of Stockholders . If the election of directors is included as business to be brought before a special meeting in the Corporation’s notice of meeting, then nominations of persons for election to the Board of Directors at a special meeting of stockholders may be made by any stockholder who is a stockholder of record at the time of giving of notice provided for in this ‎Section 2.10(b) and at the time of the special meeting, who shall be entitled to vote at the meeting and who complies with the procedures set forth in this ‎Section 2.10(b). For nominations to be properly brought by a stockholder before a special meeting of stockholders pursuant to this ‎Section 2.10(b), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation.

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To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the Corporation (A) not earlier than 150 days prior to the date of the special meeting nor (B) later than the later of 120 days prior to the date of the special meeting or the 10 th day following the day on which public announcement of the date of the special meeting was first made. A stockholder’s notice to the Secretary shall comply with the notice requirements of Section 2.10(a)(iii).
(c)      General . (i) To be eligible to be a nominee for election as a director, the proposed nominee must provide to the Secretary of the Corporation in accordance with the applicable time periods prescribed for delivery of notice under Section 2.10(a)(ii) or Section 2.10(b): (1) a completed D&O questionnaire (in the form provided by the secretary of the Corporation at the request of the nominating stockholder) containing information regarding the nominee’s background and qualifications and such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation or to serve as an independent director of the Corporation, (2) a written representation that, unless previously disclosed to the Corporation, the nominee is not and will not become a party to any voting agreement, arrangement or understanding with any person or entity as to how such nominee, if elected as a director, will vote on any issue or that could interfere with such person’s ability to comply, if elected as a director, with his/her fiduciary duties under applicable law, (3) a written representation and agreement that the nominee is not and will not become a party to any Third-Party Compensation Arrangement pursuant to Section 2.10(a)(iii)(A)(2), unless disclosed to the Corporation prior to entering into any such Arrangement and (4) a written representation that, if elected as a director, such nominee would be in compliance and will continue to comply with the Corporation’s corporate governance guidelines as disclosed on the Corporation’s website, as amended from time to time. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Corporation the information that is required to be set forth in a stockholder’s notice of nomination that pertains to the nominee.
(ii)      No person shall be eligible to be nominated by a stockholder to serve as a director of the Corporation unless nominated in accordance with the procedures set forth in this ‎Section 2.10. No business proposed by a stockholder shall be conducted at a stockholder meeting except in accordance with this ‎Section 2.10.
(iii)      The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by these Bylaws or that business was not properly brought before the meeting, and if he/she should so determine, he/she shall so declare to the meeting and the defective

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nomination shall be disregarded or such business shall not be transacted, as the case may be. Notwithstanding the foregoing provisions of this ‎Section 2.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or other proposed business, such nomination shall be disregarded or such proposed business shall not be transacted, as the case may be, notwithstanding that proxies in respect of such vote may have been received by the Corporation and counted for purposes of determining a quorum. For purposes of this ‎Section 2.10, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(iv)      Without limiting the foregoing provisions of this Section 2.10, a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in this Section 2.10; provided , however , that any references in these Bylaws to the Exchange Act are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this ‎Section 2.10, and compliance with paragraphs ‎(a)(i)(C) and ‎(b) of this ‎Section 2.10 shall be the exclusive means for a stockholder to make nominations or submit other business (other than as provided in this ‎Section 2.10(c)(iv)).
(v)      Notwithstanding anything to the contrary, the notice requirements set forth herein with respect to the proposal of any business pursuant to this ‎‎Section 2.10 shall be deemed satisfied by a stockholder if such stockholder has submitted a proposal to the Corporation in compliance with Rule 14a-8 under the Exchange Act, and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for the meeting of stockholders.
ARTICLE 3
DIRECTORS
Section 3.01 . General Powers. Except as otherwise provided in Delaware Law or the Amended and Restated Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. No director shall be deemed an “agent” of the Corporation as that

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term is used in the federal Surface Mining Control and Reclamation Act or its state analogues.
Section 3.02 . Number, Election and Term Of Office. The number of directors which shall constitute the Board of Directors shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the Board of Directors. Each director shall be elected annually at each annual meeting of stockholders to hold office for a term expiring at the next annual meeting of stockholders, with each director to hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal. In no event will a decrease in the number of directors shorten the term of any incumbent director. There shall be no cumulative voting in the election of directors.
Section 3.03 . Quorum and Manner of Acting. Unless the Amended and Restated Certificate of Incorporation or these Bylaws require a greater number, a majority of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors and, except as otherwise expressly required by law or by the Amended and Restated Certificate of Incorporation, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat shall adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.04 . Time and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a determination by the Board of Directors).
Section 3.05 . Annual Meeting. The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting shall be held. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such place either within or without the State of Delaware, on such date and at such time as shall be specified in a notice thereof given as hereinafter provided in ‎Section 3.07 herein or in a waiver of notice thereof signed by any director who chooses to

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waive the requirement of notice, subject to the written consent provision in ‎Section 3.09 herein.
Section 3.06 . Regular Meetings. After the place and time of regular meetings of the Board of Directors shall have been determined and notice thereof shall have been once given to each member of the Board of Directors, regular meetings may be held without further notice being given.
Section 3.07 . Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board or the President and shall be called by the Chairman of the Board, President or Secretary on the written request of two directors. Notice of special meetings of the Board of Directors shall be given to each director at least 48 hours before the date of the meeting in such manner as is determined by the Board of Directors.
Section 3.08 . Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to any of the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter expressly required by Delaware Law to be submitted to the stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
Section 3.09 . Action by Consent. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

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Section 3.10 . Telephonic Meetings. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.11 . Resignation. Any director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.12 . Vacancies . Vacancies on the Board of Directors resulting from death, resignation, removal or otherwise and newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors calls a special meeting for which the election of directors is included as business or as otherwise required by law, be filled solely by a majority of the directors then in office (although less than a quorum) or by the sole remaining director, and each director so elected shall hold office for a term ending at the next annual meeting of stockholders, and until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal.
Section 3.13 . Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created shall be filled in accordance with ‎Section 3.12 herein.
Section 3.14 . Compensation. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these Bylaws, the Board of Directors shall have authority to fix the compensation of directors, including fees and reimbursement of expenses.
Section 3.15 . Preferred Stock Directors. Notwithstanding anything else contained herein, whenever the holders of one or more classes or series of preferred stock shall have the right, voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of such class or series of preferred stock adopted by resolution or resolutions adopted by the Board of Directors pursuant to the Amended and Restated Certificate of

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Incorporation, and such directors so elected shall not be subject to the provisions of this ‎Article 3 unless otherwise provided in such terms.
ARTICLE 4
OFFICERS
Section 4.01 . Principal Officers. The principal officers of the Corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Treasurer and a Secretary who shall have the duty, among other things, to record the proceedings of the meetings of stockholders and directors in a book kept for that purpose. The Corporation may also have such other principal officers, including one or more Controllers, as the Board of Directors may in its discretion appoint. One person may hold the offices and perform the duties of any two or more of said offices, except that no one person shall hold the offices and perform the duties of President and Secretary.
Section 4.02 . Appointment, Term of Office and Remuneration. The principal officers of the Corporation shall be appointed by the Board of Directors in the manner determined by the Board of Directors. Each such officer shall hold office until his or her successor is appointed, or until his or her earlier death, resignation or removal. The remuneration of all officers of the Corporation shall be fixed by the Board of Directors. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.
Section 4.03 . Subordinate Officers. In addition to the principal officers enumerated in ‎Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees.
Section 4.04 . Removal. Except as otherwise permitted with respect to subordinate officers, any officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors.
Section 4.05 . Resignations. Any officer may resign at any time by giving written notice to the Board of Directors (or to a principal officer if the Board of Directors has delegated to such principal officer the power to appoint and to remove such officer). The resignation of any officer shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

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Section 4.06 . Powers and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors.
ARTICLE 5
CAPITAL STOCK
Section 5.01 . Certificates For Stock; Uncertificated Shares. The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares or a combination of certificated and uncertificated shares. Any such resolution that shares of a class or series will only be uncertificated shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Except as otherwise required by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same class and series shall be identical. Every holder of stock represented by certificates shall be entitled to have a certificate representing the number of shares registered in certificate form, signed by, or in the name of, the Corporation by the Chairman or Vice Chairman of the Board of Directors, or the Chief Executive Officer, President or Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of such Corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The Corporation shall not have power to issue a certificate in bearer form.
Section 5.02 . Transfer Of Shares. Shares of the stock of the Corporation may be transferred on the record of stockholders of the Corporation by the holder thereof or by such holder’s duly authorized attorney upon surrender of a certificate therefor properly endorsed or upon receipt of proper transfer instructions from the registered holder of uncertificated shares or by such holder’s duly authorized attorney and upon compliance with appropriate procedures for transferring shares in uncertificated form, unless waived by the Corporation.
Section 5.03 . Authority for Additional Rules Regarding Transfer. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of the stock of the Corporation, as well as for the issuance of new certificates in lieu of those which may be lost or destroyed, and may require of any stockholder requesting replacement of lost or

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destroyed certificates, a bond in such amount and in such form as they may deem expedient to indemnify the Corporation, the transfer agents and/or the registrars of the Corporation’s stock against any claims arising in connection therewith.
ARTICLE 6
GENERAL PROVISIONS
Section 6.01 . Fixing the Record Date. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing such record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day preceding the day on which notice is given, or, if notice is waived, at the close of business on the day preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the Board of Directors may in its discretion or as required by law fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall fix the same date or an earlier date as the record date for stockholders entitled to notice of such adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 6.02 . Dividends. Subject to limitations contained in Delaware Law and the Amended and Restated Certificate of Incorporation, the Board of Directors may declare and pay dividends upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the capital stock of the Corporation.

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Section 6.03 . Year. The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year.
Section 6.04 . Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 6.05 . Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.
Section 6.06 . Forum. Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of Delaware Law or the Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any class or series of Preferred Stock) or the Bylaws (in each case, as they may be amended from time to time), or (d) any action asserting a claim governed by the internal affairs doctrine shall, in any such case, be the Court of Chancery of the State of Delaware, (or, if the Court of Chancery lacks subject matter jurisdiction, another state or federal court located within the state of Delaware, in all cases subject to the court’s having personal jurisdiction over the indispensable parties named as defendants). Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 6.06.
Section 6.07 . Amendments. These Bylaws or any of them, may be altered, amended or repealed, or new Bylaws may be made, by the stockholders entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors. Unless a higher percentage is required by the Certificate of Incorporation as to any matter that is the subject of these Bylaws, all such amendments must be approved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding securities of the Corporation, generally entitled to vote in the election of directors, voting together as a single class, or by a majority of the Board of Directors.


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Exhibit 4.1

A898624FORFUTUREFILI001A01.JPG
THIS CERTIFIES THAT is the owner of CUSIP DATED COUNTERSIGNED AND REGISTERED: COMPUTERSHARE TRUST COMPANY, N.A. TRANSFER AGENT AND REGISTRAR, FULLY-PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF Contura Energy, Inc. (hereinafter called the “Company”), transferable on the books of the Company in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby, are issued and shall be held subject to all of the provisions of the Certificate of Incorporation, as amended, and the By-Laws, as amended, of the Company (copies of which are on file with the Company and with the Transfer Agent), to all of which each holder, by acceptance hereof, assents. This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar. Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. COMMON STOCK PAR VALUE $0.01 COMMON STOCK SEE REVERSE FOR CERTAIN DEFINITIONS Certificate Number Shares . CONTURA ENERGY, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE Chief Executive Officer Secretary By AUTHORIZED SIGNATURE DELAWARE C O NT UR A ENERGY, IN C . THIS CERTIFICATE IS TRANSFERABLE IN CANTON, MA, JERSEY CITY, NJ AND COLLEGE STATION, TX ZQCERT#|COY|CLS|RGSTRY|ACCT#|TRANSTYPE|RUN#|TRANS# 21241B 10 0 DD-MMM-YYYY * * 0 0 0 0 0 0 * * * * * * * * * * * * * * * * * * * * * 0 0 0 0 0 0 * * * * * * * * * * * * * * * * * * * * * 0 0 0 0 0 0 * * * * * * * * * * * * * * * * * * * * * 0 0 0 0 0 0 * * * * * * * * * * * * * * * * * * * * * 0 0 0 0 0 0 * * * * * * * * * * * * * * ** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Sample **** Mr. Sample **000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares*** *000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares**** 000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****0 00000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****00 0000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000 000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****0000 00**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****00000 0**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000 **Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000* *Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000** Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**S ***ZERO HUNDRED THOUSAND ZERO HUNDRED AND ZERO*** MR. SAMPLE & MRS. SAMPLE & MR. SAMPLE & MRS. SAMPLE ZQ00000000 Certificate Number s 1234567890/123456789 0 1234567890/123456789 0 1234567890/123456789 0 1234567890/123456789 0 1234567890/123456789 0 1234567890/123456789 0 Total Transactio n Num/No . 123456 Denom . 123456 Tota l 1234567 MR A SAMPL E DESIGN ATION (IF ANY ) ADD 1 ADD 2 ADD 3 ADD 4 CONTURA ENERG Y, INC . PO BOX 43004, Providence, RI 02940-3004 CUSI P XXXXXX XX X Holder ID XXXXXXXXX X Insurance Value 1,000,000.0 0 Number of Share s 12345 6 DT C 12345678 12345678901234 5



A898624FORFUTUREFILI002A01.JPG
The IRS requires that the named transfer agent (“we”) report the cost basis of certain shares or units acquired after January 1, 2011. If your shares or units are covered by the legislation, and you requested to sell or transfer the shares or units using a specific cost basis calculation method, then we have processed as you requested. If you did not specify a cost basis calculation method, then we have defaulted to the first in, first out (FIFO) method. Please consult your tax advisor if you need additional information about cost basis. If you do not keep in contact with the issuer or do not have any activity in your account for the time period specified by state law, your property may become subject to state unclaimed property laws and transferred to the appropriate state. THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO REQUESTS, A SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OF THE COMPANY AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND RIGHTS, AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS DETERMINED FOR EACH SERIES, WHICH ARE FIXED BY THE CERTIFICATE OF INCORPORATION OF THE COMPANY, AS AMENDED, AND THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE VARIATIONS FOR FUTURE SERIES. SUCH REQUEST MAY BE MADE TO THE OFFICE OF THE SECRETARY OF THE COMPANY OR TO THE TRANSFER AGENT. THE BOARD OF DIRECTORS MAY REQUIRE THE OWNER OF A LOST OR DESTROYED STOCK CERTIFICATE, OR HIS LEGAL REPRESENTATIVES, TO GIVE THE COMPANY A BOND TO INDEMNIFY IT AND ITS TRANSFER AGENTS AND REGISTRARS AGAINST ANY CLAIM THAT MAY BE MADE AGAINST THEM ON ACCOUNT OF THE ALLEGED LOSS OR DESTRUCTION OF ANY SUCH CERTIFICATE. For value received, ____________________________hereby sell, assign and transfer unto ________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________ Shares _______________________________________________________________________________________________________________________ Attorney Dated: __________________________________________20__________________ Signature: ____________________________________________________________ Signature: ____________________________________________________________ Notice: The signature to this assignment must correspond with the name as written upon the face of the certificate, in every particular, without alteration or enlargement, or any change whatever. PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE) of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint to transfer the said stock on the books of the within-named Company with full power of substitution in the premises. . CONTURA ENERGY, INC. Signature(s) Guaranteed: Medallion Guarantee Stamp THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT -............................................Custodian ................................................ (Cust) (Minor) TEN ENT - as tenants by the entireties under Uniform Gifts to Minors Act......................................................... (State) JT TEN - as joint tenants with right of survivorship UNIF TRF MIN ACT -............................................Custodian (until age ................................) and not as tenants in common (Cust) .............................under Uniform Transfers to Minors Act ................... (Minor) (State) Additional abbreviations may also be used though not in the above list.


Exhibit 5.1
New York
Northern California
Washington DC
São Paulo
London
Paris
Madrid
Tokyo
Beijing
Hong Kong


DAVISPOLKLOGO.JPG



Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017212
212 450 4000 tel
212 701 5800 fax
August 20, 2018
Re:
Registration Statement on Form S-4
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd.
Bristol, Tennessee 37620
Ladies and Gentlemen:
We have acted as counsel to Contura Energy, Inc. (the “ Company ”), a Delaware corporation, in connection with the mergers (the “ Mergers ”) of Prime Acquisition I, Inc. (“ Prime Acquisition I ”), a Delaware corporation and a direct subsidiary of the Company, and Prime Acquisition II, Inc. (“ Prime Acquisition II ), a Delaware corporation and a direct subsidiary of Prime Acquisition I, with and into Alpha Natural Resources Holdings, Inc. and ANR, Inc. (together with Alpha Natural Resources Holdings, Inc., “ Alpha ”), respectively, pursuant to the terms of the Agreement and Plan of Merger dated as of April 29, 2018 (the “ Merger Agreement ”) among the Company, Alpha, Prime Acquisition I and Prime Acquisition II, and the preparation and filing of the Company’s Registration Statement on Form S-4 (the “ Registration Statement ”) filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the registration by the Company of shares (the “ Shares ”) of common stock, par value $0.01 per share, of the Company to be issued in the Mergers.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates and other instruments, and have conducted such other investigations of fact and law, as we have deemed necessary or advisable for the purposes of this opinion.
In rendering this opinion, we have assumed that prior to the issuance of any of the Shares (i) the Registration Statement, as then amended, will have become effective under the Securities Act and such effectiveness will not have been terminated or rescinded, (ii) the stockholders of Alpha will have adopted the Merger Agreement in accordance with the General Corporation Law of the State of Delaware and (iii) the transactions contemplated by the Merger Agreement will have been consummated in accordance with the terms of the Merger Agreement.
On the basis of the foregoing, we are of the opinion that the Shares have been duly authorized and the Shares, when issued and delivered in accordance with the terms and conditions of the Merger Agreement, will be validly issued, fully paid and nonassessable.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
This letter is furnished to you solely for use in connection with the Registration Statement and may not be used for any other purpose without our express permission. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In addition, we consent to the reference to us under the caption “Legal Matters” in the joint proxy statement and prospectus constituting a part of the Registration Statement. In giving such consent we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder.
This opinion is rendered to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose.



Very truly yours,
 
/s/ Davis Polk & Wardwell LLP


Exhibit 8.1

 
New York
Northern California
Washington DC
São Paulo
London
Paris
Madrid
Tokyo
Beijing
Hong Kong
DAVISPOLK81IMAGE1.JPG
 
 
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
212 450 4471 tel
212 701 5471 fax

 
PRIVILEGED & CONFIDENTIAL


August 20, 2018
Re:    Material United States Federal Income Tax Consequences of the Mergers
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd.
Bristol, Tennessee 37620
Ladies and Gentlemen:
We have acted as counsel to Contura Energy Inc., a Delaware corporation (“ Contura ”), in connection with certain transactions contemplated by the Agreement and Plan of Merger (together with all schedules, exhibits, attachments and annexes thereto, the “ Merger Agreement ”), dated as of April 29, 2018, among Contura, ANR, Inc., a Delaware corporation, Alpha Natural Resources Holdings, Inc., a Delaware corporation, Prime Acquisition I, Inc., a wholly-owned subsidiary of Contura, and Prime Acquisition II, Inc., a wholly-owned subsidiary of Prime Acquisition I, Inc. This opinion is being delivered in connection with the Registration Statement (File No. 333-02171) of Contura on Form S-4 filed on July 16, 2018, with the Securities and Exchange Commission, as amended and supplemented through the date hereof (the “ Registration Statement ”). Except as otherwise noted, all capitalized terms used but not defined herein have the meanings ascribed to such terms in the Merger Agreement.
We have participated in the preparation of the discussion in the Registration Statement under the heading, “Material United States Federal Income Tax Consequences of the Mergers.” Subject to the assumptions, limitations and qualifications set forth therein, we hereby confirm that it is our opinion that the discussion therein sets forth the material U.S. federal income tax consequences of the Mergers to holders of Holdings Common Stock and Class C-1 Common Stock, as each such term is defined in the Registration Statement.
This opinion is furnished to you solely for use in connection with the Registration Statement. We hereby consent to the filing of this opinion as Exhibit [ ] to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

Very truly yours,
/s/ Davis Polk & Wardwell


    
Exhibit 10.1
EXECUTION VERSION






CREDIT AGREEMENT

among

CONTURA ENERGY, INC.,
as Borrower,

JEFFERIES FINANCE LLC,
as Administrative Agent and Collateral Agent,
and
The Other Lenders Party Hereto


Dated as of March 17, 2017



JEFFERIES FINANCE LLC,
BMO CAPITAL MARKETS CORP.,
CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE SECURITIES (USA) LLC,
and
UBS SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners








US-DOCS\81457650.19
    
 

TABLE OF CONTENTS
Section
 
Page
Article I. DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
41
1.03
Accounting Terms
41
1.04
Times of Day
42
1.05
Negative Covenant Compliance
42
 
 
 
Article II. THE COMMITMENTS AND BORROWINGS
43
2.01
The Loans
43
2.02
Borrowings, Conversions and Continuations of the Loans
43
2.03
Prepayments
44
2.04
Repayment of Loans
48
2.05
Interest
48
2.06
Fees
49
2.07
Computation of Interest and Fees
49
2.08
Evidence of Debt
49
2.09
Payments Generally; Administrative Agent’s Clawback
49
2.10
Pro Rata; Sharing of Payments by Lenders
51
2.11
Incremental Debt
52
2.12
Refinancing Debt
54
2.13
Defaulting Lenders
56
 
 
 
Article III. TAXES, YIELD PROTECTION AND ILLEGALITY
57
3.01
Taxes
57
3.02
Illegality
60
3.03
Inability to Determine Rates
61
3.04
Increased Costs; Reserves on Eurocurrency Rate Loans
61
3.05
Compensation for Losses
63
3.06
Mitigation Obligations; Replacement of Lenders
64
3.07
Survival
64
 
 
 
Article IV. CONDITIONS PRECEDENT
64
4.01
Closing Date
64
4.02
Conditions to all Borrowings (Including on the Closing Date)
67
 
 
 
Article V. REPRESENTATIONS AND WARRANTIES
68
5.01
Existence, Qualification and Power
68
5.02
Authorization; No Contravention
68
5.03
Governmental Authorization
68
5.04
Binding Effect
69
5.05
Financial Statements; No Material Adverse Effect
69
5.06
Litigation
69
5.07
No Default
70

i
    


5.08
Ownership and Identification of Property
70
5.09
Environmental Compliance
70
5.10
Insurance
71
5.11
Taxes
71
5.12
ERISA Compliance
72
5.13
Subsidiaries
72
5.14
Margin Regulations; Investment Company Act
72
5.15
Disclosure
72
5.16
Compliance with Laws
73
5.17
Anti-Corruption; Sanctions; Terrorism Laws
73
5.18
Intellectual Property; Licenses, Etc.
73
5.19
Security Documents
74
5.20
Mines
74
5.21
Solvency
74
5.22
Labor Relations
74
5.23
Agreements
75
5.24
Senior Debt
75
 
 
 
Article VI. AFFIRMATIVE COVENANTS
75
6.01
Financial Statements
75
6.02
Certificates; Other Information
76
6.03
Notices
77
6.04
Payment of Obligations
78
6.05
Preservation of Existence
78
6.06
Maintenance of Properties
78
6.07
Maintenance of Insurance
79
6.08
Compliance with Laws
79
6.09
Books and Records
79
6.10
Inspection Rights
79
6.11
Use of Proceeds
80
6.12
Additional Guarantors
80
6.13
Unrestricted Subsidiaries
80
6.14
Preparation of Environmental Reports
81
6.15
Certain Long Term Liabilities and Environmental Reserves
81
6.16
Covenant to Give Security
81
6.17
Maintenance of Ratings
83
6.18
Information Regarding Collateral
83
6.19
Senior Debt
83
6.20
Post-Closing Covenants
83
 
 
 
Article VII. NEGATIVE COVENANTS
83
7.01
Liens
84
7.02
Investments
86
7.03
Indebtedness
89
7.04
Fundamental Changes
91
7.05
Dispositions
92
7.06
Restricted Payments
94

ii
    


7.07
Accounting Changes; Change in Nature of Business; Foreign Operations
96
7.08
Transactions with Affiliates
96
7.09
Use of Proceeds
97
7.10
Burdensome Agreements
97
7.11
Fiscal Year
98
7.12
Sale and Lease-Backs
98
7.13
Amendments or Waivers to Certain Agreements
99
7.14
No Further Negative Pledge
99
7.15
Anti-Corruption; Sanctions; Terrorism Laws
99
 
 
 
Article VIII. EVENTS OF DEFAULT AND REMEDIES
100
8.01
Events of Default
100
8.02
Remedies Upon Event of Default
102
8.03
Exclusion of Immaterial Subsidiaries
102
8.04
Application of Funds
102
 
 
 
Article IX. ADMINISTRATIVE AGENT AND OTHER AGENTS
103
9.01
Appointment and Authority
103
9.02
Rights as a Lender
103
9.03
Exculpatory Provisions
104
9.04
Reliance by Administrative Agent and the Collateral Agent
105
9.05
Delegation of Duties
106
9.06
Resignation of Administrative Agent or Collateral Agent
106
9.07
Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders
107
9.08
No Other Duties, Etc.
108
9.09
Administrative Agent May File Proofs of Claim
108
9.10
Guaranty and Collateral Matters
109
9.11
Withholding Tax
109
9.12
Intercreditor Agreements, Collateral Matters and Specified Amendments
110
 
 
 
Article X. MISCELLANEOUS
111
10.01
Amendments, Etc.
111
10.02
Notices; Effectiveness; Electronic Communication
113
10.03
No Waiver; Cumulative Remedies
116
10.04
Expenses; Indemnity; Damage Waiver
116
10.05
Marshalling; Payments Set Aside
119
10.06
Successors and Assigns
119
10.07
Treatment of Certain Information; Confidentiality
123
10.08
Right of Setoff
124
10.09
Usury Savings Clause
125
10.10
Counterparts; Integration; Effectiveness
125
10.11
Survival of Representations, Warranties
126
10.12
Severability
126
10.13
Replacement of Lenders
126
10.14
Governing Law; Jurisdiction; Etc.
127
10.15
Waiver of Jury Trial
128

iii
    


10.16
USA PATRIOT Act Notice
129
10.17
Time of the Essence
129
10.18
No Advisory or Fiduciary Responsibility
129
10.19
Release of Liens and Release from Guaranty
130
10.20
Independence of Covenants
131
10.21
Independent Nature of Lenders’ Rights
131
10.22
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
131
10.23
Original Issue Discount
132


iv
    
 

SCHEDULES
1.01(a)
Guarantors
1.01(b)
Excluded Wyoming Properties
1.01(d)
Reserve Areas
2.01
Commitments
5.03
Governmental Authorization
5.08(b)
Fee Owned Material Real Property
5.08(c)
Leased Material Real Property
5.09
Environmental Matters
5.13
Subsidiaries
5.18
Intellectual Property
5.2
Mines
6.2
Post Closing Schedule
7.01
Existing Liens
7.02
Existing Investments
7.03
Existing Indebtedness
7.08
Transactions with Affiliates
7.1
Burdensome Agreements
10.02
Administrative Agent’s Office; Certain Addresses for Notices
 
 
EXHIBITS
Form of:
A
Borrowing Notice
B
Note
C
Compliance Certificate
D
Assignment and Assumption
E
Guaranty
F
Security Agreement
G
Mortgage
H
Solvency Certificate
I-1
U.S. Tax Compliance Certificate
I-2
U.S. Tax Compliance Certificate
I-3
U.S. Tax Compliance Certificate
I-4
U.S. Tax Compliance Certificate

v
    


CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, supplemented or otherwise modified, the “ Agreement ”) is entered into as of March 17, 2017, among CONTURA ENERGY, INC., a Delaware corporation (the “ Borrower ”), each lender from time to time party hereto (collectively, the “ Lenders ” and, individually, a “ Lender ”), and JEFFERIES FINANCE LLC, as Administrative Agent and Collateral Agent.
PRELIMINARY STATEMENTS
The Borrower has requested that on the Closing Date, the Lenders make Term Loans to the Borrower to finance the Transactions and the Lenders have agreed to provide such Term Loans on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01      Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:
“ ABL Agent(s) ” means each administrative agent, collateral agent, collateral trustee, if any, or other representative of the holders of ABL Obligations with respect to any ABL Facility.
“ ABL Credit Documents ” means the instruments or agreements executed in connection with any ABL Facility (including all security agreements, collateral assignments, mortgages, control agreements or other grants or transfers for security in favor of any ABL Agent, for the benefit of the holders of ABL Obligations) each in form and substance reasonably satisfactory to the Administrative Agent and any instrument or agreement executed in connection with any refinancings and replacements thereof to the extent permitted under any ABL Intercreditor Agreement, as each such instrument or agreement may be amended, restated, supplemented or otherwise modified from time to time in accordance with such ABL Intercreditor Agreement or replaced in accordance with the terms of this Agreement.
“ ABL Facility ” means one or more customary asset based lending facilities in form and substance reasonably satisfactory to the Administrative Agent and otherwise permitted hereunder; provided that the sum of (i) the aggregate principal amount outstanding and (ii) the amounts available to be borrowed of all ABL Facilities shall not exceed the amount permitted under Section 7.03(h) .
“ ABL Intercreditor Agreement ” means an intercreditor agreement to be entered into between the ABL Agent, the Collateral Agent and the Junior Collateral Trustee that sets forth the relative priority of the Priority Liens and the Junior Liens (as each such term is defined in such ABL Intercreditor Agreement), on the one hand, compared to the ABL Liens (as such term is defined in such ABL Intercreditor Agreement), on the other hand, in form and substance

1
    


reasonably satisfactory to the Administrative Agent and as the same may be amended, restated, supplemented or otherwise modified from time to time.
“ ABL Obligations ” means all debts, liabilities and obligations incurred by the Borrower or any Subsidiary under the ABL Credit Documents.
“ ABL Priority Collateral ” has the meaning assigned to “ABL Priority Collateral” in any ABL Intercreditor Agreement.
“ Accounting Change ” means changes in accounting principles adopted or implemented after the Closing Date required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board or, if applicable, the SEC.
“ Acquired Assets ” shall have the meaning provided in the definition of “Permitted Acquisition.”
“ Acquired Entity ” shall have the meaning provided in the definition of “Permitted Acquisition.”
“ Acquisition Agreement ” means, with respect to any Permitted Acquisition, the definitive documentation for such Permitted Acquisition.
“ Acquisition Agreement Representations ” means, with respect to any Acquisition Agreement, the representations and warranties made by or with respect to the Person to be acquired or selling its assets pursuant to such Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that (a) the accuracy of any such representation or warranty is a condition to the Borrower’s or its Restricted Subsidiary’s obligations to close under the Acquisition Agreement or (b) the Borrower or Restricted Subsidiary has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations and warranties.
“ Additional Extensions of Credit ” has the meaning specified in Section 10.01 .
“ Administrative Agent ” means Jefferies Finance LLC, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
“ Administrative Questionnaire ” means an administrative questionnaire in a form supplied by the Administrative Agent.
“ Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. For purposes of this Agreement and the other Loan Documents, Jefferies LLC and its Affiliates shall be deemed to be Affiliates of Jefferies Finance LLC and its Affiliates.

2
    


"Agent Parties ” has the meaning specified in Section 10.02(c) .
“ Agents ” means the Administrative Agent and the Collateral Agent.
“ Aggregate Commitments ” means the Commitments of all the Lenders.
“ Agreement ” has the meaning specified in the introductory paragraph to this Agreement.
“ Anti-Corruption Laws ” has the meaning specified in Section 5.17(c) .
“ Applicable Percentage ” means, with respect to any Lender at any time, the percentage (carried out to the tenth decimal place) of the Term Loan Facility represented by (i) until the Closing Date, such Lender’s respective Term Loan Commitments and (ii) thereafter, the aggregate principal amount of such Lender’s Term Loans then outstanding. The initial Applicable Percentage of each Lender in respect of the Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“ Applicable Rate ” means a percentage per annum equal to (i) 5.00% for Eurocurrency Rate Loans and (ii) 4.00% for Base Rate Loans.
“ Applicable Reserve Requirement ” means, at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Eurocurrency Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurocurrency Rate Loans. A Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“ Arrangers ” means Jefferies Finance LLC BMO Capital Markets Corp., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, and UBS Securities LLC, each in its capacity as joint lead arranger and joint bookrunner.
“ Asset Sale ” means any Disposition or series of related Dispositions of property by the Borrower or any of its Restricted Subsidiaries to any Person; provided that “Asset Sale” shall exclude any Disposition or series of related Dispositions with a fair market value of less than

3
    


$5,000,000 ; provided, further , that “Asset Sale” shall exclude the sale or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof.
“ Asset Sale Sweep Provision ” has the meaning specified in Section 2.03(b) .
“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b) , and accepted by the Administrative Agent) in substantially the form of Exhibit D or any other form approved by the Administrative Agent, in accordance with Section 10.06(b) .
“ Attributable Indebtedness ” means, on any date, in respect of any Capital Lease Obligations of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“ Audited Financial Statements ” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the period from July 26, 2016 through December 31, 2016 and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such period in respect of the Borrower and its Subsidiaries.
“ Available Amount ” means at any time (the “ Available Amount Reference Time ”), an amount (which shall not be less than zero) equal to, without duplication:
(i) $35,000,000; plus
(ii) (x) the cumulative amount of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for all fiscal years completed after the Closing Date (commencing with the portion of fiscal year 2017) and prior to the Available Amount Reference Time, minus (y) the portion of such Excess Cash Flow that has been (or is required to be) applied after the Closing Date and prior to the Available Amount Reference Time to the prepayment of Term Loans in accordance with Section 2.03(d) or any other pari passu Indebtedness in accordance with the terms thereof (but excluding for purposes of this clause (y) any portion of such Excess Cash Flow with respect to which such prepayment has been waived by the Lender or other holder of such Indebtedness entitled thereto); minus
(iii) the aggregate amount of any Restricted Payment made pursuant to Section 7.06(e)(ii) and any Investments made pursuant to Section 7.02(l)(ii) during the period commencing on the Closing Date and ending on or prior to the Available Amount Reference Time (and, for purposes of this clause (iv), without taking account of the intended usage of the Available Amount at such Available Amount Reference Time).
“ Available Amount Reference Time ” has the meaning specified in the definition of “Available Amount”.

4
    


“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the Eurocurrency Rate (after giving effect to any Eurocurrency Rate “floor”) that would be payable on such day for a Eurocurrency Rate Loan with a one month Interest Period plus 1%, and (c) the Prime Rate in effect on such day. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Rate, respectively. In no event, notwithstanding the rate determined pursuant to the foregoing, shall the Base Rate be less than 0%.
“ Base Rate Loan ” means a Term Loan that bears interest based on the Base Rate.
“ Borrower ” has the meaning specified in the introductory paragraph hereto.
“ Borrower Materials ” has the meaning specified in Section 6.02 .
“ Borrowing ” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .
“ Borrowing Notice ” means a notice of (a) a Borrowing, (b) a conversion of Term Loans from one Type to the other or (c) a continuation of Eurocurrency Rate Loans, in each case, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A .
“ Building ” means a Building as defined in 12 CFR Chapter III, Section 339.2.
“ Business Day ” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with the Eurocurrency Rate or any Eurocurrency Rate Loans, the term “Business Day” means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
“ Capital Expenditure ” means any expenditure that, in accordance with GAAP, is or should be included in “purchase of property and equipment” or similar items, or which should otherwise be capitalized, reflected in the consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries; provided that Capital Expenditure shall not include any expenditure (i) for replacements and substitutions for fixed assets, capital assets or equipment to the extent made with Extraordinary Receipts invested pursuant to Section 2.03(e) or with Net Proceeds invested pursuant to Section 2.03(b) or (ii) which constitute a Permitted Acquisition.

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“ Capital Lease Obligations ” means of any Person as of the date of determination, the aggregate liability of such Person under Financing Leases reflected on a balance sheet of such Person under GAAP.
“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing, but excluding any securities convertible into or exchangeable for shares of Capital Stock.
“ Cash Equivalents ” means
(a)
U.S. Government Obligations or certificates representing an ownership interest in U.S. Government Obligations with maturities not exceeding two years from the date of acquisition,
(b)
(i) demand deposits, (ii) time deposits and certificates of deposit with maturities of two years or less from the date of acquisition, (iii) bankers’ acceptances with maturities not exceeding two years from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank or trust company organized or licensed under the laws of the United States or any state thereof (including any branch of a foreign bank licensed under any such laws) having capital, surplus and undivided profits in excess of $250,000,000 (or the foreign currency equivalent thereof) whose short-term debt is rated A-2 or higher by S&P or P-2 or higher by Moody’s,
(c)
commercial paper maturing within 364 days from the date of acquisition thereof and having, at such date of acquisition, ratings of at least A-1 by S&P or P-1 by Moody’s,
(d)
readily marketable direct obligations issued by any state, commonwealth or territory of the U.S. or any political subdivision thereof, in each case rated at least A-1 by S&P or P-1 by Moody’s with maturities not exceeding one year from the date of acquisition,
(e)
bonds, debentures, notes or other obligations with maturities not exceeding two years from the date of acquisition issued by any corporation, partnership, limited liability company or similar entity whose long-term unsecured debt has a credit rate of A2 or better by Moody’s and A or better by S&P;
(f)
investment funds at least 95% of the assets of which consist of investments of the type described in clauses (a) through (e) above (determined without regard to the maturity and duration limits for such investments set forth in such clauses, provided that the weighted average maturity of all investments held by any such fund is two years or less),
(g)
fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (b) above and

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(h)
in the case of a Restricted Subsidiary that is a Foreign Subsidiary, substantially similar investments, of comparable credit quality, denominated in the currency of any jurisdiction in which such Person conducts business.
“ Cash Management Obligations ” means any and all obligations of the Borrower or any Restricted Subsidiary arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from the deposit accounts of the Borrower and/or any Restricted Subsidiary, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, (c) any other treasury, deposit, disbursement, overdraft, and cash management services afforded to the Borrower or any Restricted Subsidiary, and (d) stored value card, commercial credit card and merchant card services.

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request or directive (whether or not having the force of law) by any Governmental Authority required to be complied with by any Lender. For purposes of this definition, (x) the Dodd-Frank Act and any rules, regulations, orders, requests, guidelines and directives adopted, promulgated or implemented in connection therewith, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to have been adopted, issued, promulgated or implemented after the Closing Date, but shall be included as a Change in Law only to the extent a Lender is imposing applicable increased costs or costs in connection with capital adequacy and other requirements similar to those described in Sections 3.04(a) and (b) generally on other similarly situated borrowers of loans under United States credit facilities.
“ Change of Control ” means:
(a)      prior to a Qualifying IPO, an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of a majority or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Borrower;
(b)      after a Qualifying IPO, an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; or

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(c)      a “Change of Control” as defined in the ABL Credit Documents, in each case, as amended, restated, modified, replaced, or refinanced from time to time.
“ Closing Date ” means the date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 and the Term Loans are made, which occurred on March 17, 2017.  
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.
“ Collateral ” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Security Documents as security for all or any part of the Obligations (subject to exceptions contained in the Security Documents), in each case excluding any Excluded Assets.
“ Collateral Agent ” means Jefferies Finance LLC in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent.
“ Collateral Questionnaire ” means a certificate in form reasonably satisfactory to Administrative Agent that provides information with respect to the personal or mixed property of each Loan Party.
“ Commitment ” means a Term Loan Commitment or corresponding commitment under another Facility, as the context may require.
“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended and any successor statute.
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit C .
“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“ Consolidated Current Assets ” means, at any time, the consolidated current assets of the Borrower and its Restricted Subsidiaries at such time.
“ Consolidated Current Liabilities ” means, at any time, the consolidated current liabilities of the Borrower and its Restricted Subsidiaries at such time, but excluding the current portion of any Indebtedness under this Agreement and the current portion of any other long-term Indebtedness which would otherwise be included therein.
“ Consolidated EBITDA ” means, as of the last day of any period, Consolidated Net Income for such period plus, without duplication (i) consolidated interest expense, determined in accordance with GAAP; (ii) to the extent deducted in computing such Consolidated Net Income, the sum of all income, franchise or similar taxes (and less income tax benefits); (iii) depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-

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downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of acquisition accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period); (iv) non-recurring restructuring costs, expenses and charges, including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and professional fees and stay and retention bonuses; provided that the amount of non-recurring restructuring costs, expenses and charges permitted to be added back pursuant to this clause (iv) for a four-quarter period shall not exceed 20% of Consolidated EBITDA for such period (calculated before giving effect to such add-back); (v) any expenses, costs or charges related to any equity offering, Investment permitted under Section 7.02 , acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful); (vi) all non-recurring or unusual losses, charges and expenses (and less all non-recurring or unusual gains); (vii) all non-cash charges and expenses; (viii) any debt extinguishment costs; (ix) any amount of asset retirement obligations expenses; (x) all Transaction Costs incurred in connection with the Transactions contemplated hereby; (xi) transaction costs, fees and expenses incurred during such period in connection with any acquisition or disposition not prohibited hereunder or any issuance of debt or equity securities by the Borrower or any of its Restricted Subsidiaries, in each case, for such expenses; and (xii) commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income. Notwithstanding the foregoing, for purposes of determining First Lien Leverage Ratio and Total Leverage Ratio, Consolidated EBITDA for the fiscal quarters ended March 31, 2016 , June 30, 2016, September 30, 2016 and December 31, 2016 shall be deemed to be $24,500,000, $24,500,000, $39,400,000 and $103,500,000, respectively.
“ Consolidated Net Income ” means, for any period, the net income (or loss) attributable to the Borrower and its Restricted Subsidiaries (unless another Person is expressly indicated) for that period, determined in accordance with GAAP, excluding, without duplication, (a) noncash compensation expenses related to common stock and other equity securities issued to employees, (b) extraordinary or non-recurring gains and losses, (c) income or losses from discontinued operations or disposal of discontinued operations or costs and expenses associated with the closure of any mines (including any reclamation or disposal obligations), (d) any non-cash impairment charges or asset write-off resulting from the application of ASC 320 Investments- Debt and Equity Securities, ASC 323 Investments-Equity Method and Joint Ventures, ASC 350 Intangibles—Goodwill and Other and ASC 360 Property, Plant and Equipment and any future or similar ASC standards relating to impairment, (e) net unrealized gains or losses resulting in such period from non-cash foreign currency remeasurement gains or losses, (f) net unrealized gains or losses resulting in such period from the application ASC 815 Derivatives and Hedging, in each case, for such period, (g) non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles, (h) any net income (or loss) for such period of any Person that is not a Restricted Subsidiary or is otherwise not a Subsidiary of such Person or that is accounted for by the equity method of accounting except to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person, and (i) the net income (but not loss) of any Restricted Subsidiary to the extent that

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the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders (other than any restriction that has been waived or released); plus , without duplication, any cash dividends and/or distributions actually received by the Borrower or a Restricted Subsidiary from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein.
“ Consolidated Net Tangible Assets ” means, as of any particular time, the total of all the assets appearing on the most recent consolidated balance sheet prepared in accordance with GAAP of the Borrower and the Restricted Subsidiaries as of the end of the last fiscal quarter for which financial information is available (less applicable reserves and other properly deductible items) after deducting from such amount (i) all current liabilities, including current maturities of long-term debt and current maturities of obligations under Financing Leases (other than any portion thereof maturing after, or renewable or extendable at the option of the Borrower or the relevant Restricted Subsidiary beyond, twelve months from the date of determination); and (ii) the total of the net book values of all assets of the Borrower and its Restricted Subsidiaries properly classified as intangible assets under GAAP (including goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets).
“ Consolidated Net Total Debt ” means, as of any date of determination, (a) the aggregate stated balance sheet amount of all Indebtedness of Borrower and its Restricted Subsidiaries (for the avoidance of doubt, for this purpose, letters of credit will be deemed to have a principal amount equal to the amount drawn and not reimbursed thereunder, if any) determined on a consolidated basis in accordance with GAAP, minus (b) the aggregate amount of Unrestricted Cash included in the consolidated balance sheet of Borrower and its Restricted Subsidiaries as of such date (other than the proceeds of Indebtedness to be incurred on such date of determination).
“ Consolidated Working Capital ” means, at any time, Consolidated Current Assets (but excluding therefrom all cash and Cash Equivalents) less Consolidated Current Liabilities at such time.
“ Contingent Credit Support Agreement ” means that certain loan agreement, dated as of July 26, 2016, by and between ANR, Inc., as borrower, and the Borrower, as lender (as amended, restated supplemented or otherwise modified from time to time).
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

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“ Controlled Subsidiary ” means, with respect to any consent, waiver or right to terminate or accelerate the obligations under a Contractual Obligation, any Subsidiary that the Borrower directly or indirectly Controls for purposes of the provision of such consent, waiver or exercise of such right to terminate or accelerate the obligations under such Contractual Obligation.
“ Copyright Security Agreement ” means the Copyright Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent and the Borrower, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“ Default Rate ” means an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to (i) the Eurocurrency Rate otherwise applicable to such Eurocurrency Rate Loan plus (ii) the Applicable Rate applicable to Eurocurrency Rate Loans plus (iii) 2% per annum.
“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Loans, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender or (d) has become the subject of a Bail-In Action. A Lender that has become a Defaulting Lender because of an event referenced in this definition may cure such status and shall no longer constitute a Defaulting Lender as provided in the last paragraph of Section 2.13 .
“ Designated Letters of Credit ” means letters of credit issued with respect to Mine reclamation, workers’ compensation and other employee benefit liabilities.

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“ Designated Non-Cash Consideration ” means the fair market value (as reasonably determined by the Borrower in good faith) of non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with a Disposition that is so designated as “Designated Non-Cash Consideration” minus the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“ Disqualified Equity Interest ” means Equity Interests that by their terms (or by the terms of any security into which such Equity Interests are convertible, or for which such Equity Interests are exchangeable, in each case at the option of the holder thereof) or upon the happening of any event (i) mature or are mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or are required to be redeemed or redeemable at the option of the holder for consideration other than Qualified Equity Interests, or (ii) are convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Indebtedness, in each case of clauses (i) and (ii) prior to the date that is 91 days after the final Maturity Date hereunder, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations.
“ Disqualified Institution ” means (i) any financial institutions and entities identified by the Borrower to the Administrative Agent by name in writing on or prior to February 21, 2017, (ii) any competitors of the Borrower identified by the Borrower to the Administrative Agent by name in writing from time to time and (iii) affiliates of the foregoing that are readily identifiable solely on the basis of similarity of their names; provided that (x) in the case of clauses (ii) and (iii) herein, “Disqualified Institutions” shall not include any bona fide diversified debt fund or a diversified investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course; (y) neither Administrative Agent nor Arrangers shall have any responsibility for monitoring compliance with any provisions of this Agreement with respect to Disqualified Institutions and (z) updates to the Disqualified Institution schedule shall not retroactively invalidate or otherwise affect any (A) assignments or participations made to, (B) any trades entered into with or (C) information provided to any Person before it was designated as a Disqualified Institution. It is acknowledged and agreed by the Borrower that the identity of Disqualified Institutions will be made available to the Lenders.
“ Dodd-Frank Act ” means the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) signed into law on July 21, 2010, as amended from time to time.
“ Dollar ” and “ $ ” mean lawful money of the United States.
“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of the United States or any State thereof or the District of Columbia; provided , that in no event shall

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any such Subsidiary that is a Subsidiary of a Foreign Subsidiary be considered a “Domestic Subsidiary” for purposes of the Loan Documents.
“ DTA ” means Dominion Terminal Associates, a Virginia partnership.
“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ Eligible Assignee ” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any other Person (other than a natural person) approved by (A) the Administrative Agent and (B) unless an Event of Default under Sections 8.01(a) , (f) and (g) has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided , however , in each case, unless an Event of Default has occurred and is continuing, an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending to the Borrower, without the imposition of any additional Indemnified Taxes and assignment to such Person would not, at the time of such assignment, result in the Borrower becoming liable to pay any additional amount to such Person or any Governmental Authority pursuant to Section 3.01 or Section 3.04 ; provided further that no Loan Party, Defaulting Lender or Disqualified Institution shall be an Eligible Assignee.
“ Environmental Laws ” means any and all applicable current and future Laws relating to (a) protection of natural resources, wildlife and the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface, water, ground water, or land, (b) human health and safety as affected by Hazardous Materials, and (c) mining operations and activities to the extent relating to environmental protection or reclamation, including the federal Surface Mining Control and Reclamation Act (30 U.S.C. 1201-1328) and all analogous state laws and regulations, provided that “Environmental Laws” do not include any laws relating to worker or retiree benefits, including benefits arising out of occupational diseases.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual

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arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ Environmental Permits ” means any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any applicable Environmental Law.
“ Equity Interests ” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of Capital Stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination (but excluding any debt security that is convertible into, or exchangeable for, Equity Interests).
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, the regulations promulgated thereunder and any successor statute.
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to meet the minimum funding standards of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (e) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (g) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (h) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (k)

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the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Pension Plan; or (l) the occurrence of any Foreign Plan Event.
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“ Eurocurrency Base Rate ” means, with respect to any Eurocurrency Rate Loans for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the commencement of such Interest Period by reference to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) for a period equal to such Interest Period; provided that to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the beginning of such Interest Period.
“ Eurocurrency Rate ” means, with respect to an Interest Period for a Eurocurrency Rate Loan, the rate per annum obtained by dividing (i) the rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the rate determined by Administrative Agent to be the Eurocurrency Base Rate by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement. In no event, notwithstanding the rate determined pursuant to the foregoing, shall the Eurocurrency Rate be less than 1.00%.
“ Eurocurrency Rate Loan ” means a Term Loan that bears interest at a rate based on the Eurocurrency Rate.
“ Event of Default ” has the meaning specified in Section 8.01 .
“ Excess Cash Flow ” means, for any period, an amount equal to the excess of:
(a) the sum, without duplication, of:
(i) Consolidated Net Income;
(ii) the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income (excluding any such non-cash charge to the extent that it represents an accrual or reserve for a potential cash charge in any future period or amortization of a prepaid cash gain that was paid in a prior period);
(iii) the amount of the decrease, if any, in Consolidated Working Capital; and

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(iv) the aggregate amount of non-cash losses on the Disposition of Property during such period (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income; minus
(b) the sum, without duplication, of:
(i) the amount of all non-cash credits included in arriving at such Consolidated Net Income;
(ii) Capital Expenditures made in cash during such period, in each case, except to the extent funded by the incurrence of long-term Indebtedness;
(iii) the aggregate amount of all regularly scheduled principal payments of Indebtedness made in cash during such fiscal year (other than in respect of any revolving credit facility unless there is an equivalent scheduled permanent reduction in commitments thereunder), in each case, except to the extent funded by the incurrence of long-term Indebtedness;
(iv) the amount of the increase, if any, in Consolidated Working Capital for such period; and
(v) the aggregate amount of non-cash gains on the Disposition of Property during such period (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income.
“ Excess Asset Sale Proceeds ” has the meaning specified in Section 2.03(b) .
“ Excess Extraordinary Proceeds ” has the meaning specified in Section 2.03(b) .
“ Excluded Accounts ” means a collective reference to (a) any deposit account, securities account, commodities account, cash collateral account or other similar account of any Loan Party (and all cash, cash equivalents and other securities or investments held therein) exclusively used for all or any of the following purposes: (i) payroll, (ii) employee benefits, (iii) worker's compensation, (iv) securing liabilities in respect of bank guarantees, credit card or purchase card facilities or similar merchant account arrangements incurred in the ordinary course of business, (v) taxes, (vi) third party escrow, (vii) customs, (viii) other fiduciary purposes, (ix) securing the GUC Distribution Note in an amount not to exceed the amount of such Indebtedness permitted hereunder, or (x) compliance with legal requirements (including pledges required in favor of Governmental Authorities), to the extent such legal requirements prohibit the granting of a Lien thereon and (b) other deposit accounts, security accounts, commodities account, cash collateral accounts or other similar accounts of any Loan Party (and all cash, cash equivalents and other securities or investments held therein) with an average balance for all accounts excluded by this clause (b) not in excess of $100,000 in the aggregate for all such accounts.
“ Excluded Assets ” means
(a) motor vehicles and other assets subject to certificates of title where the net book value of any such motor vehicle or other such asset individually is less than $500,000,

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(b) commercial tort claims where the amount of the net proceeds claimed is less than $3,000,000,
(c) (i) any Contractual Obligation and any leased or licensed asset under a Contractual Obligation or asset financed pursuant to a purchase money financing Contractual Obligation or Capital Lease Obligation, in each case that is the direct subject of such Contractual Obligation (so long as such Contractual Obligation is not entered into for purposes of circumventing or avoiding the collateral requirements of this Agreement), in each case only for so long as the granting of a security interest therein (x) would be prohibited by, cause a default under or result in a breach of such Contractual Obligation (unless the Borrower or any Controlled Subsidiary may unilaterally waive it) or would give another Person (other than the Borrower or any Controlled Subsidiary) a right to terminate or accelerate the obligations under such Contractual Obligation or to obtain a Lien to secure obligations owing to such Person (other than the Borrower or any Controlled Subsidiary) under such Contractual Obligation (in each case, except to the extent any such prohibition is unenforceable after giving effect to applicable anti- assignment provisions of the UCC) or (y) would require obtaining the consent of any Person (other than the Borrower or any Controlled Subsidiary) or applicable Governmental Authority, except to the extent that such consent has already been obtained or (ii) any asset the granting of a security interest therein in favor of the Secured Parties would be prohibited by any applicable Requirement of Law (other than any Organizational Document) (except to the extent such prohibition is unenforceable after giving effect to applicable anti-assignment provisions of the UCC, other than proceeds thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibitions),
(d) those assets with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the costs of obtaining or perfecting such a security interest are excessive in relation to the benefits to be obtained by the Secured Parties therefrom or would result in materially adverse tax consequences to the Borrower or its Subsidiaries as reasonably determined by the Borrower in consultation with the Administrative Agent,
(e) (i) any real property and leasehold rights and interests in real property other than Material Real Property, and (ii) leasehold rights and interests in real property leased from any Governmental Authority,
(f) any “intent-to-use” application for registration of a Trademark (as defined in the Security Agreement) filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto,
(g) (i) any Equity Interest that is Voting Stock of a first-tier Foreign Subsidiary or FSHCO in excess of 65% of the Voting Stock of such Subsidiary, (ii) any Equity Interests of captive insurance subsidiaries and not-for-profit subsidiaries, (iii) any Equity Interests in any Joint Venture or any other non-wholly owned Subsidiary, and (iv) any Equity Interests in the direct parent of any Joint Venture or non-wholly owned Subsidiary to the extent that a pledge thereof would be prohibited by, cause a default under or result in a breach of, or would give another Person (other than the Borrower or any Controlled Subsidiary) a right to terminate, under

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any Organizational Document, shareholders, Joint Venture or similar agreement applicable to such owned Subsidiary or Joint Venture; and
(h) the Excluded Accounts;
(i) the Excluded Wyoming Property; and
(j) all right, title and interest of Contura Energy Services LLC under (A) the Trust Agreement (N731BP) dated July 26, 2016 between Bank of Utah, as owner trustee, and Contura Energy Services LLC, as Operator and (B) the Aircraft Operating Agreement dated July 26, 2016 between Contura Energy Services, LLC and Bank of Utah, as owner trustee;
provided that the Collateral shall include the replacements, substitutions and proceeds of any of the foregoing unless such replacements, substitutions or proceeds also constitute Excluded Assets.  
“ Excluded Hedging Obligation ” means, with respect to any Guarantor, (a) as it relates to all or a portion of the Guarantee of such Guarantor of Hedging Obligations, any Hedging Obligation if, and to the extent that, such Hedging Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Hedging Obligation or (b) as it relates to all or a portion of the grant by such Guarantor of a security interest to secure any Hedging Obligation (or secure any Guarantee in respect thereof), any Hedging Obligation if, and to the extent that, the grant by such Guarantor of a security interest to secure such Hedging Obligation (or secure any Guarantee in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the grant of such security interest becomes effective with respect to such Hedging Obligation. If a Hedging Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal. As used in this definition, “Hedging Obligation” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) branch profits Taxes or Taxes imposed on or measured by its overall net income (however denominated), and franchise taxes, in each case (i) imposed as a result of the Recipient being organized under the laws of, or having its principal office in or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United

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States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than in the case of an assignee pursuant to a request by the Borrower under Section 10.13 ) or (ii) such Lender changes its lending office, except in each case, to the extent that, pursuant to Section 3.01(a) , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure or inability to comply with Section 3.01(e) and (d) any Taxes imposed under FATCA.
“ Excluded Wyoming Property ” means, any property rights and interests in real and personal property to the extent that such property is pledged to the State of Wyoming (or any governmental agency thereof) to satisfy bonding obligations under reclamation laws. As of the Closing Date, Schedule 1.01(b) lists all Excluded Wyoming Property.
“ Existing Credit Agreement ” means that certain Asset-Based Term Loan Credit Agreement, dated July 26, 2016 by and among the Borrower, the subsidiary guarantors party thereto, The Wilmington Trust, National Association, as administrative agent and collateral agent, and the lenders party thereto (as amended, restated, supplemented or otherwise modified prior to the Closing Date).
“ Existing Senior Notes ” means the senior secured first lien notes of Borrower due August 2021 issued pursuant to the Existing Senior Notes Indenture.
“ Existing Senior Notes Indenture ” means the Indenture, dated as of July 26, 2016, among the Borrower, the guarantors party thereto, the Wilmington Trust, National Association, as Trustee and Collateral Agent (as defined therein) (as amended, restated, supplemented or otherwise modified prior to the Closing Date).
“ Extraordinary Receipts ” means an amount equal to: (i) any cash payments or proceeds received by the Borrower or any of its Restricted Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of the Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by the Borrower or any of its Restricted Subsidiaries in connection with the adjustment or settlement of any claims of the Borrower or such Restricted Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition, including income taxes payable as a result of any gain recognized in connection therewith.
“ Facility ” means the Term Loan Facility, any Incremental Facility and/or any Refinancing Facility, as the context may require.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official

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interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any laws implementing an intergovernmental agreement with respect to the foregoing.
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.
“ Fee Letter ” means that certain Amended and Restated Fee Letter, dated March 10, 2017, between the Borrower and Jefferies Finance LLC.
“ Financing Lease ” means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee; provided that, any operating lease that is required to be treated as a capital lease in accordance with GAAP as a result of any Accounting Change shall not be deemed a Financing Lease for purposes of this Agreement.
“ First Lien Leverage Ratio ” means, as of any date of determination, the ratio of (i) Consolidated Net Total Debt on such date (other than any portion of Consolidated Net Total Debt that is unsecured or is secured solely by a Lien that is junior to the Liens securing the Obligations), to (ii) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b) , as applicable.
“ First Priority ” means, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien ranks first in priority to all other Liens, other than Liens permitted under clauses (b) , (c) , (d) , (e) , (f)(i) , (f)(ii) , (g) , (i) , (j) , (m) , (p) , (r) , (s) and (v) (solely with respect to any ABL Priority Collateral of Section 7.01 .
“ Foreign Lender ” means any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code.
“ Foreign Plan ” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Loan Party or any of their respective Subsidiaries with respect to employees employed outside the United States and paid through a non-United States payroll.  
“ Foreign Plan Event ” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, within the time permitted by Law for such contributions or payments, (c) the receipt of a notice from a

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Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any liability by any Loan Party under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, in each case, which would reasonably be expected to have a Material Adverse Effect, or (e) the occurrence of any transaction with respect to a Foreign Plan that is prohibited under any applicable law and that would reasonably be expected to result in the incurrence of any liability by any Loan Party, or the imposition on any Loan Party of any fine, excise tax or penalty with respect to a Foreign Plan resulting from any noncompliance with any applicable law, in each case which would reasonably be expected to have a Material Adverse Effect.
“ Foreign Subsidiary ” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any State thereof or the District of Columbia and any Subsidiary thereof.
“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.
“ FSHCO ” means any Domestic Subsidiary formed or acquired on or after the Closing Date substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries.
“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“ GAAP ” means generally accepted accounting principles, which are applicable to the circumstances as of the date of determination. The sources of accounting principles and the framework for selecting the principles used in the preparation of financial statements of nongovernmental entities that are presented in conformity with GAAP in the United States, are set forth in the Financial Accounting Standards Board’s Accounting Standards Codification.
“ Governmental Authority ” means the government of the United States or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“ Guarantee ” means, as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to the extent the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation in order to induce the creation of such obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, reimbursement obligations

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under letters of credit and any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided , however , that the term Guarantee obligation shall not include (i) indemnification or reimbursement obligations under or in respect of Surety Bonds or Designated Letters of Credit, (ii) ordinary course performance or payment guarantees by any Loan Party of the obligations (other than for the payment of borrowed money) of any other Loan Party and (iii) endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“ Guarantors ” means any Restricted Subsidiary that is a wholly-owned Domestic Subsidiary; provided , that such term shall not include (a) any FSHCO or (b) any Domestic Subsidiary that is a Subsidiary of any Foreign Subsidiary. The Guarantors as of the Closing Date are the Subsidiaries of the Borrower listed on Schedule 1.01(a) . For the avoidance of doubt, no Foreign Subsidiary now owned or hereafter formed or acquired shall be a Guarantor.
“ Guaranty ” means that certain Guarantee of the Secured Obligations made by the Guarantors in favor of the Administrative Agent and the Secured Parties, substantially in the form of Exhibit E , including any supplement, accession, assumption or joinder thereto.
“ GUC Distribution Note ” means that certain Category 1 Note, dated July 26, 2016, made by Contura Energy, Inc. in a principal amount of $5,500,000.
“ Hazardous Materials ” means (i) any explosive or radioactive substances or wastes, (ii) any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under, or that would reasonably be expected to give rise to liability under, any applicable Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, urea- formaldehyde insulation, gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, and (iii) any coal ash, coal combustion by-products or waste, boiler slag, scrubber residue or flue desulphurization residue (“CCR”), except that CCR beneficially re-used shall not be considered a Hazardous Material.
“ Hedge Bank ” has the meaning specified in the definition of “Secured Hedging Agreement”.

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“ Hedging Agreement ” means (i) any interest rate swap agreement, interest rate cap agreement, interest rate future agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect against or mitigate interest rate risk, (ii) any foreign exchange forward contract, currency swap agreement, futures contract, option contract, synthetic cap or other agreement or arrangement designed to protect against or mitigate foreign exchange risk or (iii) any commodity or raw material, including coal, futures contract, commodity hedge agreement, option agreement, any actual or synthetic forward sale contract or other similar device or instrument or any other agreement designed to protect against or mitigate raw material price risk (which shall for the avoidance of doubt include any forward purchase and sale of coal for which full or partial payment is required or received).
“ Hedging Obligations ” means all debts, liabilities and obligations of the Borrower or any Restricted Subsidiary in respect of any Hedging Agreement.
“ Hedging Termination Value ” means, in respect of any one or more Hedging Agreement, after taking into account the effect of any valid netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to- market value(s) for such Hedging Agreements, as determined based upon one or more mid- market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender, the Administrative Agent or any Affiliate of a Lender or the Administrative Agent) (it being understood that any such termination values and marked- to-market values shall take into account any assets posted as collateral or security for the benefit of a party to the Hedging Agreement).
“ Highest Lawful Rate ” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“ Incremental Debt Cap ” means, as determined with respect to any Incremental Facility to be incurred, an amount equal to the sum of (a) $150,000,000 and (b) (i) if such Incremental Facility is (or is intended to be) secured by the Collateral on a pari passu basis, an additional amount if, after giving effect to the incurrence of such Incremental Facility and any acquisition consummated in connection therewith, the First Lien Leverage Ratio is equal to or less than 2.00 to 1.00 on a Pro Forma Basis and (ii) if such Incremental Facility is secured by the Collateral on a junior-lien basis or unsecured, an additional amount if, after giving effect to the incurrence of such Incremental Facility and any acquisition consummated in connection therewith, the Total Leverage Ratio is equal to or less than 3.00:1.00 on a Pro Forma Basis.
“ Incremental Facility ” has the meaning specified in Section 2.11(a) .
“ Incremental Facility Effective Date ” has the meaning specified in Section 2.11(c) .
“ Incremental Facility Request ” has the meaning specified in Section 2.11(a) .

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“ Incremental Lender ” means any Person who provides an Incremental Facility in respect of a term loan hereunder.
“ Incremental Loan ” means, with respect to any Incremental Facility, an advance made by any Incremental Lender under such Incremental Facility.
“ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)      all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than any obligations in respect of performance bonds bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees, bank guarantees and similar contingent obligations or with respect to worker’s compensation benefits);
(b)      all obligations of such Person arising under letters of credit, bankers’ acceptances or similar instruments issued for the account of such Person (solely to the extent such letters of credit, bankers’ acceptances or other similar instruments have been drawn and remain unreimbursed);
(c)      net obligations of such Person under any Hedging Agreement;
(d)      all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses incurred in the ordinary course of business, (ii) obligations under federal coal leases, (iii) obligations under coal leases and (iv) obligations for take-or-pay arrangements);
(e)      indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)      Capital Lease Obligations; and
(g)      all Guarantees of such Person in respect of any of the foregoing Indebtedness of any other Person (but excluding any performance and completion Guarantees of such Person);
provided that in no event shall Indebtedness include (i) in connection with the purchase by the Borrower or any of its Restricted Subsidiaries of any business, post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing unless such payments are required under GAAP to appear as a liability on the balance sheet (excluding the footnotes), provided, that at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; (ii) deferred or prepaid revenues; (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (iv) asset retirement obligations, or (v) obligations (other than obligations with respect to Indebtedness for borrowed

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money or other Indebtedness evidenced by loan agreements, bonds, notes or debentures or similar instruments or letters of credit (solely to the extent such letters of credit or other similar instruments have been drawn and remain unreimbursed) (or, without duplication, reimbursement agreements in respect thereof)) related to surface rights under an agreement for the acquisition of surface rights for the production of coal reserves in the ordinary course of business in a manner consistent with historical practice of the Borrower and its Subsidiaries. Indebtedness shall be calculated without giving effect to the effects of Accounting Standards Codification Topic 815 “Derivatives and Hedging” and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Hedging Termination Value thereof as of such date. The amount of any Indebtedness issued with original issue discount shall be deemed to be the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness. The amount of any Capital Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any indebtedness of a Joint Venture secured by a Lien on property owned or being purchased by the Borrower or its Restricted Subsidiaries as of any date shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the indebtedness that is secured by such Lien and (b) the maximum amount for which the Borrower or its Restricted Subsidiaries may be liable (which may be determined with reference to the fair market value of the property securing such indebtedness as reasonably determined by the Borrower in good faith) pursuant to the terms of such indebtedness. Except as set forth in the sentence immediately above, the amount of indebtedness of any Joint Venture, which is attributable to the Borrower or any Restricted Subsidiary shall be deemed to equal the amount of indebtedness that would be attributable to the Borrower or any Restricted Subsidiary in accordance with GAAP.
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“ Indemnitees ” has the meaning specified in Section 10.04(b) .
“ Information ” has the meaning specified in Section 10.07 .
“ Intercreditor Agreements ” means each of (a) the ABL Intercreditor Agreements and (b) the Junior Lien Intercreditor Agreements.
“ Interest Payment Date ” means, (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.

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“ Interest Period ” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Borrowing Notice; provided that:
(i)      any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
(ii)      any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) below, end on the last Business Day of a calendar month; and
(iii)      with respect to each Facility, no Interest Period shall extend beyond its applicable Maturity Date.
“ Internally Generated Cash ” means, with respect to any period, any cash of the Borrower or any Restricted Subsidiary generated during such period, excluding Net Proceeds, Extraordinary Receipts and any cash that is generated from an incurrence of Indebtedness, an issuance of Equity Interests or a capital contribution.
“ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock or other securities of another Person, (b) a loan, advance (excluding intercompany liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries) or capital contribution to, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or Joint Venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be (i) the amount actually invested, as determined immediately prior to the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents.
“ IP Rights ” has the meaning specified in Section 5.18 .
“ IP Security Agreements ” means the Copyright Security Agreement, the Trademark Security Agreement and the Patent Security Agreement.
“ IRS ” means the United States Internal Revenue Service.
“ Joint Venture ” means any Person (a) other than a Subsidiary in which the Borrower or its Subsidiaries hold an ownership interest or (b) which is an unincorporated joint venture of the Borrower or any Subsidiary.

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“ Junior Collateral Trustee ” means the Person acting as Junior Collateral Trustee pursuant to any Junior Intercreditor Agreement, together with its successors and assigns in such capacity.
“ Junior Lien Indebtedness ” means any Indebtedness (other than any ABL Facility) that is secured by a junior Lien to the Lien securing the Secured Obligations and that was permitted to be incurred and so secured hereunder.
“ Junior Lien Intercreditor Agreement ” means an intercreditor agreement to be entered into between the ABL Agent, the Collateral Agent and the Junior Collateral Trustee that sets forth the relative priority of the Priority Liens and the ABL Liens (as such term is defined in such Junior Lien Intercreditor Agreement), on the one hand, and the Junior Liens (as such term is defined in such Junior Lien Intercreditor Agreement), on the other hand, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“ Laws ” means, as to any Person, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances, codes, and determinations of arbitrators or courts or other Governmental Authorities, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“ Lender ” has the meaning specified in the introductory paragraph hereto and includes any (a) Incremental Lender and (b) Refinancing Facility Lender.
“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Financing Lease having substantially the same economic effect as any of the foregoing).
“ Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, Incremental Loan or Refinancing Loan.
“ Loan Documents ” means this Agreement, each Note, the Fee Letter, the Guaranty, each Security Document and any Intercreditor Agreement.
“ Loan Parties ” means, collectively, the Borrower and each Guarantor.
“ Material Adverse Effect ” means a material adverse effect upon (a) the business, assets, operations, property or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their obligations under the Loan Documents or (c) the validity or enforceability of the Loan Documents or the material rights or remedies of the Administrative Agent, the Collateral Agent, the Arrangers or the Lenders thereunder.

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“ Material Leased Real Property ” means any Mine or other real property, in each case, subject to a lease with a Loan Party, as lessee, with annual minimum royalties, rents or any similar payment obligations, in excess of $500,000 in the most recently ended fiscal year.
“ Material Owned Real Property ” means any Mine or other real property, in each case, owned or acquired in fee by any Loan Party having a fair market value in excess of $1,000,000.
“ Material Real Property ” means (a) the Material Leased Real Property, and (b) the Material Owned Real Property, as the context may require; provided, that Material Real Property shall not include (x) the Excluded Wyoming Property, (y) the Excluded Assets, or (z) any leasehold interests of a Loan Party in commercial real property constituting offices of the Borrower and its Subsidiaries.
“ Maturity Date ” means March 17, 2024 (and, with respect to term loans pursuant to an Incremental Facility or Refinancing Facility, the date on which such term loans shall become due and payable in full hereunder, as specified in the applicable joinder agreement or amendment hereto); provided , however , that, if such date is not a Business Day, the Maturity Date shall be the next Business Day.
“ Mine ” means any mining complex and its associated Reserve Area in respect of any of the real properties in the United States in which any Loan Party holds an ownership, leasehold or other interest, including any excavation or opening into the earth now or hereafter made from which coal or other minerals are or can be extracted.
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
“ Mortgage ” means any mortgages, deeds of trust or similar document (including any fixture filings whether recorded as part of such mortgages or deeds of trust or as separate instruments to the extent necessary in any particular state), substantially in the form of Exhibit G or any such other form reasonably acceptable to the Administrative Agent and the Borrower.
“ Multiemployer Plan ” means any employee pension benefit plan (as defined in Section 3(2) of ERISA) of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“ Net Proceeds ” means, with respect to any Disposition pursuant to Sections 7.05(i) , Section 7.05(j) (except to the extent arising from an Investment in a Loan Party) and 7.05(o) , the sum of (a) cash and Cash Equivalents actually received by the Borrower or any Restricted Subsidiary in connection with such Disposition (including any cash received by way of deferred payment (excluding, for avoidance of doubt, royalty payments customary in the mining industry) pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) minus (b) solely with respect to Dispositions of assets not constituting Collateral, the sum of (i) (A) the principal amount, premium or penalty, if any, interest and other amounts of any Indebtedness that is secured by such asset and that is required to be repaid in connection with such Disposition (other than Indebtedness under the Loan Documents) or (B) any other required debt payments or required payments of other obligations relating to the Disposition, in each case, with the proceeds thereof, (ii) the reasonable or customary out-of-pocket fees and

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expenses incurred by the Borrower or its Restricted Subsidiaries in connection with such Disposition (including attorneys’ fees, accountants’ fees, investment banking fees, real property related fees and charges and brokerage and consultant fees), (iii) all Taxes required to be paid or accrued or reasonably estimated to be required to be paid or accrued as a result thereof, (iv) in the case of any Disposition by a non-wholly-owned Restricted Subsidiary or non-wholly-owned Unrestricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority or other third party interests and not available for distribution to or for the account of the Borrower or a wholly-owned Restricted Subsidiary as a result thereof and (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (x) related to any of the applicable assets and (y) retained by the Borrower or any Subsidiary including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition occurring on the date of such reduction).
“ Nonconsenting Lender ” has the meaning specified in Section 10.13 .
“ Non-Recourse Debt ” means Indebtedness (a) as to which neither the Borrower nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) other than a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, (ii) is directly or indirectly liable (as a guarantor or otherwise) other than by virtue of a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, or (iii) constitutes the lender; (b) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against any Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the Obligations) of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Borrower or any of its Restricted Subsidiaries (other than solely the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral).
“ Note ” means a promissory note made by the Borrower in favor of a Lender and its registered assigns evidencing Term Loans made by such Lender, substantially in the form of Exhibit B .
“ Obligations ” means all advances to, and debts, liabilities and obligations (other than, for the avoidance of doubt, Hedging Obligations) of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

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“ Organizational Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, Joint Venture, trust or other form of business entity, the partnership, Joint Venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“ Other Connection Taxes ” means with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing, or similar Taxes that arise from any payment made under, from the execution, delivery, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment at the request of the Borrower pursuant to Section 10.13 ).
“ Outstanding Amount ” means with respect to Term Loans, Incremental Loans and Refinancing Loans, as the context may require, on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term Loans, Incremental Loans or Refinancing Loans, as applicable, occurring on such date.
“ Overnight Rate ” means, for any day, the greater of (a) the Federal Funds Rate in the case of any amount denominated in Dollars and (b) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
“ Owner Trust ” means Bank of Utah, not in its individual capacity but solely as owner trustee under the Trust Agreement N731BP dated July 26, 2016.
“ Parent Entity ” means any Person that is a direct or indirect parent company (which may be organized as a partnership) of the Borrower.
“ Participant ” has the meaning specified in Section 10.06(d) .
“ Participant Register ” has the meaning specified in Section 10.06(d) .
“ Patent Security Agreement ” means the Patent Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent and the Borrower, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.

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“ PATRIOT Act ” has the meaning specified in Section 5.17 .
“ Payment in Full ” means, the time at which no Lender shall have any Commitments, any Loan or other Obligations unpaid, unsatisfied or outstanding (other than in respect of contingent obligations, indemnities and expenses related thereto that are not then payable or in existence).
“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
“ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
“ Permitted Acquisition ” means any transaction or series of related transactions for the direct or indirect acquisition by the Borrower or any of its Restricted Subsidiaries of all or substantially all the assets of a Person or line of business or division of such person (referred to herein as the “ Acquired Assets ”), or all of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “ Acquired Entity ”) or merger or consolidation of any other combination with any other Person; provided, that
(a)    the Acquired Entity or the Acquired Assets, as applicable, shall be engaged in a Similar Business;
(b)    both before and after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(c)    the Total Leverage Ratio on a Pro Forma Basis is equal to or less than 1.5 to 1.0;
(d)    the Borrower shall comply, and shall cause the Acquired Entity, if any, to comply, with the applicable provisions of Section 6.16 ; provided that, in respect of Acquired Entities that are organized outside of the United States or will otherwise not become Loan Parties or Acquired Assets located outside of the United States or that will not be acquired by Loan Parties, the aggregate amount of such Investments, when taken together with Indebtedness of a non-Loan Party owing to a Loan Party pursuant to Section 7.03(f) (other than Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Loan Party to a Loan Party pursuant to Section 7.03(f) and Investments in non-Loan Parties made pursuant to Section 7.02(j) , shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets;
(e)     such Permitted Acquisition is not consummated in connection with a “hostile takeover” or proxy fight or similar transaction; and
(f)    such Permitted Acquisition and all transactions related thereto are consummated in all material respects in accordance with applicable Laws.

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“ Permitted Asset Swap ” means the substantially concurrent purchase and sale, trade-in or exchange of equipment, real property or any other property of a nature or type that is used or useful in a Similar Business or a combination of such equipment, real property or any other property and cash or Cash Equivalents between the Borrower or any of its Restricted Subsidiaries and another Person; provided that the fair market value of the equipment, real property or any other property received is at least as great as the fair market value of the equipment, real property or other property being traded-in or exchanged as determined by the Borrower reasonably and in good faith; provided that any shortfall may be treated as an Investment and shall constitute an Investment for purposes of calculating compliance with Section 7.02 .
“ Permitted Liens ” means all of the Liens permitted under Section 7.01 .
“ Permitted Real Estate Encumbrances ” means the following encumbrances which do not, in any case, individually or in the aggregate, materially detract from the value of any Mine subject thereto or interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted on, at or with respect to such Mine and as to be conducted following the Closing Date: (a) encumbrances customarily found upon real property used for mining purposes in the applicable jurisdiction in which the applicable real property is located to the extent such encumbrances would be permitted or granted by a prudent operator of mining property similar in use and configuration to such real property (e.g., surface rights agreements, wheelage agreements and reconveyance agreements); (b) rights and easements of (i) owners of undivided interests in any of the real property where the applicable Loan Party or Subsidiary owns less than 100% of the fee interest, (ii) owners of interests in the surface of any real property where the applicable Loan Party or Subsidiary does not own or lease such surface interest, (iii) lessees, if any, of coal or other minerals (including oil, gas and coal bed methane) where the applicable Loan Party or Subsidiary does not own such coal or other minerals, and (iv) lessees of other coal seams and other minerals (including oil, gas and coal bed methane) not owned or leased by such Loan Party or Subsidiary; (c) with respect to any real property in which the Borrower or any Restricted Subsidiary holds a leasehold interest, terms, agreements, provisions, conditions, and limitations (other than royalty and other payment obligations which are otherwise permitted hereunder) contained in the leases granting such leasehold interest and the rights of lessors thereunder (and their heirs, executors, administrators, successors, and assigns), subject to any amendments or modifications set forth in any landlord consent delivered in connection with a Mortgage; (d) farm, grazing, hunting, recreational and residential leases with respect to which the Borrower or any Restricted Subsidiary is the lessor encumbering portions of the real properties to the extent such leases would be granted or permitted by, and contain terms and provisions that would be acceptable to, a prudent operator of mining properties similar in use and configuration to such real properties; (e) royalty and other payment obligations to sellers or transferors of fee coal or lease properties to the extent such obligations constitute a lien not yet delinquent; (f) rights of others to subjacent or lateral support and absence of subsidence rights or to the maintenance of barrier pillars or restrictions on mining within certain areas as provided by any mining lease, unless in each case waived by such other person; (g) rights of repurchase or reversion when mining and reclamation are completed, (h) zoning, building, land use and other similar laws and all Liens (other than monetary Liens) that do not materially interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted, (i) Liens on the property of the Borrower or any of its Subsidiaries, as a tenant under a lease or

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sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord, and (j) leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose.
“ Permitted Refinancing Increase ” means, with respect to the Refinancing of any Indebtedness, an amount equal to (a) any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing, (b) any unpaid accrued interest on the Indebtedness being Refinanced, and (c) any existing commitments unutilized under the Indebtedness being Refinanced.
“ Permitted Refinancing Indebtedness ” mean any Indebtedness issued in exchange for, or the net proceeds of which are used to, extend, refinance, renew, replace, defease or refund (collectively, to “ Refinance ”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced ( plus any Permitted Refinancing Increase in respect of such Refinancing), (b) such Permitted Refinancing Indebtedness shall have the same obligors and same guarantees as, and be secured on a pari passu basis with, the Indebtedness so Refinanced ( provided that the Permitted Refinancing Indebtedness may be subject to lesser guarantees or be unsecured or the Liens securing the Permitted Refinancing Indebtedness may rank junior to the Liens securing the Indebtedness so Refinanced) and, to the extent applicable, the Borrower shall have satisfied the requirements of Section 5.3 of the ABL Intercreditor Agreement with respect to such Permitted Refinancing Indebtedness, (c) the maturity date is later than or equal to, and the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to, that of the Indebtedness being Refinanced, (d) if the Indebtedness so Refinanced is subordinated in right of payment to the Obligations, then such Permitted Refinancing Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Obligations at least to the extent that the Indebtedness so Refinanced is subordinated to the Obligations and (e) the terms and conditions of any Permitted Refinancing Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties than the terms and conditions of the Indebtedness that is being Refinanced.
“ Person ” means any natural person, corporation, limited liability company, trust, Joint Venture, association, company, partnership, Governmental Authority or other entity.
“ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, by any ERISA Affiliate.
“ Platform ” has the meaning specified in Section 6.02 .
“ PRB Subsidiary ” means each of Contura Coal West, LLC and Contura Wyoming Land, LLC.

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“ Prime Rate ” means the rate of interest quoted in the print edition of The Wall Street Journal , Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
“ Pro Forma Basis ” means, for purposes of calculating Consolidated Net Tangible Assets, the Total Leverage Ratio under the definition of “Incremental Debt Cap”, in Sections 6.13 , 7.03(i) and 7.06(e) , the First Lien Leverage Ratio under the definition of “Incremental Debt Cap”, or any other test that is based on satisfying a financial ratio or metric, that with respect to any acquisition or disposition (in each case, that would be included in a Pro Forma Basis calculation pursuant to Section 1.03(c) ), such acquisition or disposition shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such acquisition or disposition for which the Borrower has delivered financial statements pursuant to Section 6.01 . In connection with the foregoing, (a) with respect to any such acquisition, income statement items attributable to the Person or property or assets acquired shall be included to the extent relating to any period applicable in such calculations to the extent (i) such items are not otherwise included in such income statement items for the Borrower and its Restricted Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 , (ii) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent and (iii) any Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person, property or assets acquired) in connection with such acquisition and any Indebtedness of the Person, property or assets acquired which is not retired in connection with such acquisition (A) shall be deemed to have been incurred as of the first day of the most recent four fiscal quarter period preceding the date for such acquisition and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the most recent four fiscal quarter period preceding the date of such acquisition for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; and (b) with respect to any such disposition, income statement items attributable to the Person or property or assets being disposed of shall be excluded to the extent relating to any period applicable in such calculations in accordance with the foregoing principles applicable to acquisitions, mutatis mutandis .
“ Production Payments ” means with respect to any Person, all production payment obligations and other similar obligations with respect to coal and other natural resources of such Person that are recorded as a liability or deferred revenue on the financial statements of such Person in accordance with GAAP.
“ Properties ” has the meaning specified in Section 5.09(a) .
“ Qualified Equity Interests ” means all Equity Interests of a Person other than Disqualified Equity Interests.
“ Qualifying IPO ” means the issuance by the Borrower or any Parent Entity of its Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a

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registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“ Recipient ” means the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower.
“ Reclamation Funding Agreement ” means that certain Reclamation Funding Agreement, dated July 12, 2016, by and among: (a) Alpha Natural Resources, Inc., on behalf of itself and its debtor-affiliates; (b) Contura Energy, Inc.; (c) the Illinois Department of Natural Resources; (d) the Kentucky Energy and Environment Cabinet, Department for Natural Resources; (e) the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee; (f) the Commonwealth of Virginia, Department of Mines, Minerals and Energy; and (g) the West Virginia Department of Environmental Protection.
“ Refinance ” has the meaning specified in the definition of Permitted Refinancing Indebtedness.
“ Refinancing ” means the repayment in full of the Existing Senior Notes (which shall occur upon the deposit of cash with the Existing Notes Trustee on the Closing Date being made in accordance with the Existing Senior Notes Indenture in connection with an irrevocable notice of repurchase or redemption in full issued on or before the Closing Date for a repurchase or redemption to occur within 30 of such notice) and the Existing Credit Agreement.
“ Refinancing Facility ” has the meaning specified in Section 2.12(a) .
“ Refinancing Facility Effective Date ” has the meaning specified in Section 2.12(c) .
“ Refinancing Facility Lender ” means any Person who provides a Refinancing Facility.
“ Refinancing Loan ” means, with respect to any Refinancing Facility, an advance made by any Refinancing Facility Lender under such Refinancing Facility.
“ Register ” has the meaning specified in Section 10.06(c) .
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, attorneys and advisors of such Person and of such Person’s Affiliates.
“ Related Party Transaction ” has the meaning specified in Section 7.08 .
“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“ Repricing Event ” means (a) any prepayment or repayment of Term Loans with the proceeds of, or any conversion of Term Loans into, any new or replacement tranche of term loans bearing interest at an “effective” interest rate less than the “effective” interest rate

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applicable to the Term Loans (as such comparative rates are determined by the Administrative Agent) and (ii) any amendment or other modification to the Loan Documents that, directly or indirectly, reduces the “effective” interest rate applicable to the Term Loans (in each case, with original issue discount and upfront fees, which shall be deemed to constitute like amounts of original issue discount, being equated to interest margins in a manner consistent with generally accepted financial practice based on an assumed four-year life to maturity), including any mandatory assignment in connection therewith with respect to each Term Loan Lender that refuses to consent to such amendment.
“ Required Facility Lenders ” means, as of any date of determination, with respect to any Facility, Lenders under such Facility holding more than 50% of the Total Outstandings with respect to such Facility.
“ Required Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of the Total Outstandings; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded from both the numerator and the denominator for purposes of making a determination of Required Lenders.
“ Requirement of Law ” means as to any Person, the Organizational Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“ Reserve Area ” means (a) the real property owned in fee by any Loan Party or in which a Loan Party has a leasehold interest that is part of the areas listed on Schedule 1.01(d) and (b) any real property constituting coal reserves or access to coal reserves owned in fee by any Loan Party or in which a Loan Party has a leasehold interest, acquired after the Closing Date, that is not an active Mine.
“ Residual Mechanic's Liens ” means the mechanic's Liens existing on the Closing Date securing the payment of unpaid liabilities in respect of supplied labor or materials filed against certain properties of the Loan Parties located in Pennsylvania for so long as such Liens (a) are being satisfied in accordance with that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as modified, for Alpha Natural Resources, Inc., as confirmed on July 12, 2016 and (b) do not secure obligations in excess of $1,000,000 in the aggregate at any time outstanding.
“ Residual Property Tax Liens ” means the Liens existing on the Closing Date securing the payment of unpaid Taxes in respect of real property interests filed against certain properties of the Loan Parties located in Pennsylvania, West Virginia, Virginia and Wyoming for so long as such Liens (a) are being satisfied in accordance with that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as modified, for Alpha Natural Resources, Inc., as confirmed on July 12, 2016 and (b) do not secure obligations in excess of $10,000,000 in the aggregate at any time outstanding.

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“ Responsible Officer ” of any person shall mean any executive officer, president, chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement and with respect to financial and tax matters, the chief financial officer, treasurer or assistant treasurer of the Borrower.
“ Restricted Payment ” means (a) any dividend or other distribution (whether in cash, securities or other property) by the Borrower or any Restricted Subsidiary with respect to its Capital Stock, or any payment (whether in cash, securities or other property) by the Borrower or any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any of its Capital Stock, or on account of any return of capital to its stockholders, partners or members (or the equivalent Person thereof) and (b) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any unsecured Indebtedness for borrowed money, Subordinated Indebtedness or Junior Lien Indebtedness.
“ Restricted Subsidiary ” means any Subsidiary that is not an Unrestricted Subsidiary.
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
“ Same Day Funds ” means immediately available funds.
“ Sanctions ” has the meaning specified in Section 5.17(a) .
“ Sanctions Laws ” has the meaning specified in Section 5.17(a) .
“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“ Secured Hedging Agreement ” means any Hedging Agreement between the Borrower or a Restricted Subsidiary, on the one hand, and any Lender, an Agent, an Arranger or an Affiliate of any of the foregoing (or with any Person that was a Lender, an Agent, an Arranger or an Affiliate of the foregoing when such Hedging Agreement was entered into) (any such counterparty, a “ Hedge Bank ”).
“ Secured Hedging Obligations ” means all debts, liabilities and obligations of the Borrower or any Restricted Subsidiary in respect of any Secured Hedging Agreement.
“ Secured Obligations ” means the Obligations and the Secured Hedging Obligations. Notwithstanding anything to the contrary herein, the “Secured Obligations” shall not include any Excluded Hedging Obligations.
“ Secured Parties ” means, collectively, the Administrative Agent, the Collateral Agent, the Arrangers, the Lenders and, with respect to any Secured Hedging Agreement, any Hedge Bank.

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“ Security Agreement ” means that certain Pledge and Security Agreement, dated as of the Closing Date, substantially in the form of Exhibit F or such other form reasonably acceptable to the Administrative Agent, the Collateral Agent and the Borrower, among the Borrower, the Restricted Subsidiaries from time to time party thereto and the Collateral Agent, for the benefit of the Secured Parties.
“ Security Documents ” means, collectively, the Security Agreement, the IP Security Agreements, the Mortgages, each of the pledge agreements and supplements thereto, security agreements and supplements thereto, and other similar agreements delivered to Administrative Agent and Lenders pursuant to Section 6.16 , and any other documents, agreements or instruments that grant or purport to grant a Lien on any assets of the Borrower or any other Loan Party in favor of the Collateral Agent to secure the Secured Obligations; provided, that, for the avoidance of doubt, in no event shall any such Security Documents grant any security interests in any Excluded Assets.
“ Similar Business ” means any of the following, whether domestic or foreign: the mining, production, marketing, sale, trading and transportation (including, without limitation, any business related to terminals) of natural resources including coal, ancillary natural resources and mineral products, exploration of natural resources, any acquired business activity so long as a material portion of such acquired business was otherwise a Similar Business, and any business that is ancillary or complementary to the foregoing.
“ Solvent ” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date and reflected in the projections delivered pursuant to Section 4.01(a)(vii) or with respect to any transaction contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).
“ Subordinated Indebtedness ” means any Indebtedness of the Borrower and its Restricted Subsidiaries that is contractually subordinated to the Indebtedness under the Loan Documents.
“ Subsidiary ” of a Person means a corporation, partnership, Joint Venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly, or indirectly through one or more intermediaries, or both, by such Person; provided, that, notwithstanding the foregoing, DTA will not be a “Subsidiary”

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for purposes of this Agreement (other than, solely for purposes of Section 6.01 of this Agreement and with respect to any financial ratios and other financial calculations); provided further, that the Owner Trust shall not be considered a Subsidiary of any Loan Party. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“ Surety Bonds ” means surety bonds obtained by the Borrower or any Restricted Subsidiary and the indemnification or reimbursement obligations of the Borrower or such Restricted Subsidiary in connection therewith.
“ Tangible Assets ” means at any date, with respect to any Person, (a) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of such Person at such date minus (b) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the captions “goodwill” or other intangible categories (or any like caption) on a consolidated balance sheet of such Person on such date.
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“ Term Loan ” means an advance made by any Lender under the Term Loan Facility.
“ Term Loan Commitment ” means, as to each Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Term Loan Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of Term Loan Commitments as of the Closing Date is $400,000,000.
“ Term Loan Facility ” means, at any time, the aggregate principal amount of the Term Loans of all Lenders outstanding at such time.
“ Threshold Amount ” means $25,000,000.
“ Total Leverage Ratio ” means, as of any date of determination, the ratio of (i) Consolidated Net Total Debt on such date to (ii) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b) , as applicable.
“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans.
“ Trademark Security Agreement ” means the Trademark Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.

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“ Transaction Costs ” has the meaning specified in clause (c) of the definition of Transactions in this Agreement.
“ Transactions ” means, collectively, (a) the Refinancing, (b) the incurrence of the Loans under the Loan Documents, and (c) the payment of the fees and expenses incurred in connection with any of the foregoing clauses (a) and (b) hereof (the “ Transaction Costs ”).
“ Type ” means, with respect to a Term Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
“ UCC ” means the Uniform Commercial Code as in effect in the applicable state of jurisdiction.
“ UMWA ” means United Mine Workers of America.
“ UMWA Note ” has the meaning specific in Section 7.03(s) .
“ Unfunded Pension Liability ” means the excess of a Pension Plan’s accrued benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“ United States ” and “ US ” mean the United States of America.
“ Unrestricted Cash ” means the aggregate amount of cash and Cash Equivalents held in accounts on the consolidated balance sheet of Borrower and its Restricted Subsidiaries to the extent that the use of such cash for application to payment of the Obligations or other Indebtedness is not prohibited by law or any contract or other agreement and such cash is and Cash Equivalents are free and clear of all Liens (other than Liens in favor of the Collateral Agent) and Liens permitted pursuant to Section 7.01(o)(i) hereof.
“ Unrestricted Subsidiary ” means any Subsidiary of the Borrower that becomes an Unrestricted Subsidiary in accordance with Section 6.13 .
“ U.S. Government Obligations ” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agency or instrumentality thereof, provided that the full faith and credit of the United States of America is pledged in support thereof.
“ VEBA ” means the Voluntary Employee Beneficiary Association.
Voting Stock ” means, with respect to any Person, such Person’s Equity Interest having the right to vote for the election of directors of such Person under ordinary circumstances.
“ Weighted Average Yield ” means with respect to any Loan, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such Loan on such date and giving effect to all upfront or similar fees or original issue discount payable with respect to such Loan.

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“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write- down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.02      Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)      The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.” The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organizational Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ herein ,” “ hereof ”, “ hereto ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) all references to “wholly- owned” when referring to a Subsidiary of the Borrower shall mean a Subsidiary of which all of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly or indirectly by the Borrower or another wholly-owned Subsidiary of the Borrower, (vi) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vii) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)      In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”
(c)      Section headings herein and in the other Loan Documents are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03      Accounting Terms .

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(a)      Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b)      Changes in GAAP . If at any time any Accounting Change would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change as if such Accounting Change has not been made (subject to the approval of the Required Lenders); provided that, until so amended, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred.
(c)      Pro Forma Basis Calculation . Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that all calculations of (i) the Total Leverage Ratio and the First Lien Leverage Ratio for purposes of determining compliance with the Incremental Debt Cap, Sections 6.13 , 7.03(i) and 7.06(e), (ii) Consolidated Net Tangible Assets or (iii) any other test that is based on satisfying a financial ratio or metric, shall be made on a Pro Forma Basis (A) with respect to any acquisition by the Borrower or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the acquired Person or business for the most recent four fiscal quarter period for which financial statements are available (or if financial statements are not available for four consecutive fiscal quarters, the number of consecutive fiscal quarters for which financial statements are available) is equal to or greater than 5% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period and (B) with respect to any disposition by the Borrower or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the Person or business being disposed of for the most recent four fiscal quarter period for which financial statements are available (or if financial statements are not available for four consecutive fiscal quarters, the number of consecutive fiscal quarters for which financial statements are available) was equal to or exceeded 5% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period. With respect to the above Pro Forma Basis calculations, in the event that the relevant entity or property, which is being acquired or disposed, reports its financial results on a semi-annual basis, the Administrative Agent and the Borrower may utilize the two most recent semi-annual financial results for purposes of making such calculation and such above determination in a manner similar to the above that is mutually agreeable.
1.04      Times of Day . Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
1.05      Negative Covenant Compliance . For purposes of determining whether the Borrower and its Restricted Subsidiaries comply with any exception to the negative covenants contained in Sections 7.01 , 7.02 and 7.03 where compliance with any such exception is based on a financial ratio or metric being satisfied, it is understood that (a) compliance shall be measured at the time when the relevant event is undertaken, as such financial ratios and metrics

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are intended to be “incurrence” tests and not “maintenance” tests and (b) correspondingly, any such ratio and metric shall only prohibit the Borrower and its Restricted Subsidiaries from creating, incurring, assuming, suffering to exist or making, as the case may be, any new Liens, Indebtedness or Investments, but shall not result in any previously Permitted Liens, Indebtedness or Investments ceasing to be permitted hereunder.
ARTICLE II.
THE COMMITMENTS AND BORROWINGS
2.01      The Loans . Subject to the terms and conditions set forth herein, each Lender severally agrees to make a loan (a “ Term Loan ”) to the Borrower in Dollars, on the Closing Date in an aggregate principal amount not to exceed such Lender’s Applicable Percentage of the Term Loan Facility; provided , however , that after giving effect to any Borrowing, (i) the Total Outstandings shall not exceed the Term Loan Facility and (ii) the aggregate Outstanding Amount of the Term Loans of any Lender shall not exceed such Lender’s Term Loan Commitment. Each Borrowing shall consist of Term Loans made simultaneously by the Lenders in accordance with their respective Applicable Percentage of the Term Loan Facility. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Term Loan Commitments in effect on the Closing Date and not drawn on the Closing Date shall expire immediately after such date.
2.02      Borrowings, Conversions and Continuations of the Loans .
(a)      Each Borrowing, each conversion of Term Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 12:00 p.m., New York City time (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Borrowing Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Borrowing Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Term Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans are to be converted and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Borrowing Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation of Eurocurrency Rate Loans, then the applicable Term Loans shall be made as Eurocurrency Rate Loans with an Interest

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Period of one month. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Borrowing Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)      Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable Term Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described in the preceding subsection. Each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m., New York City time on the Business Day specified in the applicable Borrowing Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, Section 4.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c)      Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans if the Required Lenders or the Administrative Agent so notify the Borrower.
(d)      As soon as practicable after 10:00 a.m. (New York City time) two Business Days prior to the first day of each Interest Period, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurocurrency Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Borrower and each Lender. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Administrative Agent’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e)      After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than five (5) Interest Periods in effect hereunder.
2.03      Prepayments and Commitment Reductions .
(a)      Voluntary Prepayments . The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans in whole or in part, subject to Section 2.03(f) ; provided that (i) such notice must be received by the Administrative Agent not later than 12:00 p.m, New York City time (or such other later time which is acceptable to the Administrative Agent), (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans, and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of

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Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof or, in each case, the entire amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked, in each case, with the requirements of Section 3.05 to apply to any failure of the contingency to occur and any such extension or revocation. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Each prepayment of the outstanding Term Loans pursuant to this Section 2.03(a) shall be applied to the scheduled installment payments thereof as the Borrower shall direct, and each prepayment of Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(b)      Asset Sales . No later than ten Business Days following the consummation of any Asset Sale by the Borrower or a Restricted Subsidiary pursuant to Sections 7.05(i) , 7.05(j) (except to the extent arising from an Investment in a Loan Party) or 7.05(o) that results in the amount of Net Proceeds (as of the date of such receipt) exceeding $5,000,000 (such excess amount, the “ Excess Asset Sale Proceeds ”), the Borrower shall make (or cause to be made) a prepayment of the Term Loans as specified in Section 2.03(b)(iii) below in an amount equal to the lesser of (x) 100% of such Excess Asset Sale Proceeds and (y) the aggregate principal amount of the Term Loans then outstanding (the “ Asset Sale Sweep Provision ”), if any, in each case subject to the following:
(i)      The Borrower shall not be required to make a prepayment with such Excess Asset Sale Proceeds to the extent (A) the Excess Asset Sale Proceeds are reinvested in assets that are, in the reasonable business judgment of the Borrower, useful in the business of the Borrower or some or all of its Restricted Subsidiaries (including by way of any Permitted Acquisition) within 365 days following receipt thereof by the Borrower and/or such Restricted Subsidiary, or (B) if the Borrower and/or such Restricted Subsidiary, as applicable, has committed in writing to so reinvest such Excess Asset Sale Proceeds during such 365-day period, such Excess Asset Sale Proceeds are so reinvested within 180 days after the expiration of such 365-day period, in each case, so long as (x) no Event of Default exists at the time of such reinvestment and (y) with respect to any Excess Asset Sale Proceeds exceeding $5,000,000, prior to the date of any such required prepayment, the Borrower notifies the Administrative Agent in writing of the Borrower’s and/or its Restricted Subsidiary’s intention to reinvest such Excess Asset Sale Proceeds; provided that, to the extent such Excess Asset Sale Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding Term Loans after the expiration of such period in an amount equal to the amount required by the Asset Sale Sweep Provision where, subject to Section 2.03(b)(iv) , the amount of Excess Asset Sale Proceeds for such purposes shall be the amount of Excess Asset Sale Proceeds

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not reinvested as set forth above; provided , further that, if such Asset Sale includes a Disposition of any Collateral, the assets in which the portion of Excess Asset Sale Proceeds derived from such Collateral are so reinvested as set forth above shall be reinvested in assets of one or more Loan Parties and the applicable Loan Party shall comply with Section 6.16 with respect to such assets as if such assets were acquired on the date of such reinvestment.
(ii)      Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 .
(iii)      [Reserved].
(iv)      The amount of repayments required to be made pursuant to this Section 2.03(b) shall be reduced by an amount equal to the sum of the amount of any voluntary repayments of the Term Loans made with such Net Proceeds from the relevant Asset Sale.
(c)      Issuance of Debt . On the first Business Day following receipt by Borrower or any of its Restricted Subsidiaries of any cash proceeds from the incurrence of any Indebtedness of Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted to be incurred pursuant to Section 7.03 but including Permitted Refinancing Indebtedness in respect of the Term Loans), Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.
(d)      Excess Cash Flow . In the event that there shall be Excess Cash Flow for any fiscal year (commencing with the fiscal year ending December 31, 2017 for the portion of such fiscal year occurring after the Closing Date), Borrower shall, no later than one hundred days after the end of such fiscal year, prepay the Term Loans in an aggregate amount equal to (i) 75% of such Excess Cash Flow minus (ii) voluntary repayments of the Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, repayments of Loans made with the cash proceeds of any Permitted Refinancing Indebtedness); provided, that if, as of the last day of the most recently ended fiscal year, the Total Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 6.02(a) calculating the Total Leverage Ratio as of the last day of such fiscal year) shall be (1) less than 2.50:1.00 and greater than or equal to 1.50:1.00, Borrower shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 50% of such Excess Cash Flow minus (ii) voluntary repayments of the Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, repayments of Loans made with the cash proceeds of any Permitted Refinancing Indebtedness) and (2) less than 1.50:1.00, Borrower shall not be required to make the prepayments otherwise required hereby.
(e)      Extraordinary Receipts . No later than ten Business Days following the date of receipt by Borrower or any of its Restricted Subsidiaries, or Administrative Agent or Collateral Agent as loss payee, of any Extraordinary Receipts, Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of such Extraordinary Receipts in excess of $2,000,000 (such excess amount, the “ Excess Extraordinary Proceeds ”); provided , the Borrower shall not be required to make a prepayment with such Excess Extraordinary Proceeds to the extent (A) the

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Excess Extraordinary Proceeds are reinvested in assets that are, in the reasonable business judgment of the Borrower, useful in the business of the Borrower or some or all of its Restricted Subsidiaries (including by way of any Permitted Acquisition) within 365 days following receipt thereof by the Borrower and/or such Restricted Subsidiary, or (B) if the Borrower and/or such Restricted Subsidiary, as applicable, has committed in writing to so reinvest such Excess Extraordinary Proceeds during such 365-day period, such Excess Extraordinary Proceeds are so reinvested within 180 days after the expiration of such 365-day period, in each case, so long as (x) no Event of Default exists at the time of such reinvestment and (y) with respect to any Excess Extraordinary Proceeds exceeding $5,000,000, prior to the date of any such required prepayment, the Borrower notifies the Administrative Agent in writing of the Borrower’s and/or its Restricted Subsidiary’s intention to reinvest such Excess Extraordinary Proceeds; provided that, to the extent such Excess Extraordinary Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding Term Loans after the expiration of such period in an amount equal to such Excess Extraordinary Proceeds less any amount so reinvested; provided , further that, if such casualty or taking includes any Collateral, the assets in which the portion of Excess Extraordinary Proceeds derived from such Collateral are so reinvested as set forth above shall be reinvested in assets of one or more Loan Parties and the applicable Loan Party shall comply with Section 6.16 with respect to such assets as if such assets were acquired on the date of such reinvestment.
(f)      Call Protection . In the event all or any portion of the Term Loans incurred on the Closing Date is repaid, repriced or effectively refinanced in connection with any Repricing Event on or prior to the first anniversary of the Closing Date, any such repayments, repricing or effective refinancings will be made at 101.0% of the principal amount repaid, repriced or effectively refinanced.
(g)      Repatriation . Notwithstanding the foregoing, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be prepaid pursuant to Sections 2.03(b) and 2.03(e) would result in material adverse Tax consequences or violate any applicable local law in respect of upstreaming proceeds (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors), in each case as set forth in a certificate delivered by a Responsible Officer of the Borrower to the Administrative Agent, then such Borrower and its Restricted Subsidiaries shall not be required to prepay such amounts as required under Sections 2.03(b) and 2.03(e) the repatriation of which would result in such Tax consequence or violation until such material Tax consequences or local law violation no longer exist; provided that, for a period of one year following the date on which such payment was originally required, the Borrower and its Restricted Subsidiaries shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without violating local law or incurring such material adverse Tax consequences.
(h)      Application of Mandatory Prepayments . Each prepayment of the outstanding Term Loans pursuant to this Section 2.03 shall be applied to the next four scheduled installments of principal of the Facility in direct order of maturity and, thereafter, pro rata to the remaining scheduled installment payments thereof, and each prepayment of Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages.

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(i)      Additional Limitations . Notwithstanding anything to the contrary herein, the Borrower may apply amounts otherwise required to make prepayments pursuant to Sections 2.03(b) , (d) and (e) to repay (x) with respect to Sections 2.03(b) and (e) , any Indebtedness permitted hereunder that was secured by any assets not constituting Collateral sold in a manner permitted hereunder in such Asset Sale or the loss of which resulted in Extraordinary Receipts, as applicable, to the extent such repayment is required by such Indebtedness as a result of such Asset Sale or loss and (y) a ratable portion of Indebtedness permitted to be incurred pursuant to Section 7.03 and secured by liens on a pari passu basis pursuant to Section 7.01 (including, for the avoidance of doubt, the Incremental Facility and Permitted Refinancing Indebtedness of the foregoing), in the case of this clause (y), in respect of which a prepayment (or offer of prepayment) is required to be made with respect to such pari passu Indebtedness with such Excess Asset Sale Proceeds, Excess Extraordinary Proceeds or Excess Cash Flow (determined on the basis of the aggregate outstanding principal amount of the Terms Loans and such other Indebtedness outstanding at such time).
(j)      ABL Facility . Notwithstanding anything to the contrary in Sections 2.03(b) and (e) , if any Indebtedness under any ABL Facility is outstanding, to the extent a prepayment or cash collateralization of letters of credit is required under such ABL Facility due to any Net Proceeds or Extraordinary Receipts constituting the proceeds of ABL Priority Collateral, no prepayment shall be required under Sections 2.03(b) and (e) to the extent of such required payment under such ABL Facility.
(k)      [Reserved] .
2.04      Repayment of Loans . The Borrower shall repay to the Lenders on the last Business Day of each March, June, September and December (commencing with June 30, 2017) a principal amount of Term Loans equal to $1,000,000; provided , however , that the final principal repayment installment of the Term Loans shall be repaid on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date.
2.05      Interest .
(a)      Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)      At any time during an Event of Default under Sections 8.01(a) or (g) , or at the request of the Required Lenders during any other Event of Default, outstanding Term Loans and other amounts payable under the Term Loan Facility shall bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

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(c)      Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.06      Fees . The Borrower shall pay to the Administrative Agent in Dollars, fees in the amounts and at the times and for the account of the applicable Persons entitled to such fees specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.07      Computation of Interest and Fees . All computations of interest for Base Rate Loans, where the rate of interest is calculated on the basis of the prime rate, shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.09(a) , bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
2.08      Evidence of Debt . The Borrowings made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Borrowings made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
2.09      Payments Generally; Administrative Agent’s Clawback .
(a)      General . All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m., New York City time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage of such payment in like funds as

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received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 3:00 p.m., New York City time shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)     (i)      Funding by Lenders; Presumption by Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 2:00 p.m., New York City time, on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)      Payments by Borrower; Presumptions by Administrative Agent . Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c)      Failure to Satisfy Conditions Precedent . If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided

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in the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)      Obligations of Lenders Several . The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Term Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Term Loan or to make its payment under Section 10.04(c) .
(e)      Funding Source . Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
2.10      Pro Rata; Sharing of Payments by Lenders . Except as otherwise expressly provided in this Agreement, each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Loans then held by the respective Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact and (b) purchase (for cash at face value) participations in the applicable Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:
(a)      if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b)      the provisions of this Section shall not be construed to apply to (i) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (ii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans to any assignee or participant.
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

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2.11      Incremental Debt .
(a)      Request for Incremental Facility . Upon notice (an “ Incremental Facility Request ”) to the Administrative Agent (who shall promptly notify the existing Lenders), the Borrower may, without the consent of any Lender, request to add one or more new incremental term loan facilities (each an “ Incremental Facility ”) in aggregate principal amount, which when added to the aggregate principal amount of all other Incremental Facilities outstanding does not exceed the Incremental Debt Cap; provided that (i) any such request for an Incremental Facility shall be in a minimum amount equal to the lesser of (x) $25,000,000 and (y) the entire amount that remains available for request under this Section 2.11 and (ii) the Borrower may make a maximum of five such requests.
(b)      Incremental Facility Request . Each Incremental Facility Request from the Borrower shall set forth (i) the requested principal amount of the Incremental Facility and (ii) the proposed terms of the Incremental Facility (including its interest rate, amortization and any prepayment premiums). An Incremental Facility may be provided by (A) an existing Lender (but no Lender shall be obligated to provide a commitment in respect of an Incremental Facility, provided that the existing Lenders will first be afforded the opportunity to provide a commitment in respect of an Incremental Facility) or (B) any other Incremental Lender that would be an Eligible Assignee so long as any such Person is approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed) and any other Person who would have consent rights pursuant to Section 10.06(b) if such Incremental Lender was becoming a Lender. Subject to any such consents being received and if not already a party hereto, any such Incremental Lender may become a party to this Agreement by entering into a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c)      Closing Date and Allocations . In connection with any Incremental Facility, the Administrative Agent and the Borrower shall determine the effective date (the “ Incremental Facility Effective Date ”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the principal amount of the Incremental Facility and the Incremental Facility Effective Date.
(d)      Conditions to Effectiveness of Incremental Facility . The effectiveness of each Incremental Facility shall be subject to the following conditions:
(i)      as of the Incremental Facility Effective Date, the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the “Specified Representations” and Acquisition Agreement Representations in the Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (except to the extent qualified as to materiality in which case they are true and correct in all respects) on and as of the Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or in all respects, as applicable) as of such earlier date, and (ii) (A) if such Incremental Facility is being requested in connection

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with a Permitted Acquisition, no Event of Default under Sections 8.01(a) , (f) , or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the satisfaction of such conditions shall not be required, and (B) otherwise, no Default or Event of Default has occurred or is continuing or would immediately result therefrom;
(ii)      such Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis with, the Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Incremental Facility may rank junior to the Liens securing the Term Loan Facility;
(iii)      such Incremental Facility shall (A) have a final maturity no earlier than the then latest Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Facilities outstanding and (C) not have any terms which require it to be voluntarily or mandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Facilities), unless accompanied by at least a ratable payment of the Term Loans; and
(iv)      to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent, unless such terms (A) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (B) apply after the applicable Maturity Date (it being understood to the extent that any financial maintenance covenant is added for the benefit of any such Incremental Facility, no consent shall be required from the Administrative Agent to the extent that such financial maintenance covenant is also added for the benefit of the existing Term Loan Facility and any existing Incremental facility existing at the time such subsequent Incremental Facility is incurred).
(e)      Most Favored Nations . If any Incremental Facility is incurred within 18 months after the Closing Date, in the event that the Weighted Average Yield for any Incremental Facility exceeds the Weighted Average Yield for the Term Loan Facility by more than 50 basis points (the “ Excess ”), then the interest rate margins for the Term Loan shall be increased to the extent necessary to eliminate such Excess; provided that, in determining the Weighted Average Yield applicable to the Incremental Facility and the Term Loan Facility, (i) customary arrangement, structuring or commitment fees payable to the Arrangers or any bookrunner (or their respective affiliates) in connection with the Term Loan or to one or more arrangers or bookrunners (or their respective affiliates) of any Incremental Facility shall be excluded, (ii) OID and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (iii) if the Incremental Facility includes an interest rate floor greater than the applicable interest rate floor under the existing Term Loan Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loan Facility shall be required, but only to the extent an increase in the interest rate floor in the existing Term Loan Facility would

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cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term Loan Facility may be increased to the extent necessary in respect of such differential between interest rate floors; provided that each basis point increase to the interest rate floor of the Term Loans shall count as one basis point of increase in the interest rate margin to the Term Loans for purposes of eliminating the Excess.
(f)      Amendment . With the consent of the Lenders providing an Incremental Facility, the Borrower and the Administrative Agent (and without the consent of the other Lenders), this Agreement shall be amended or amended and restated in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) to reflect any changes necessary to give effect to such Incremental Facility in accordance with its terms (including, without limitation, to give such Incremental Facility the benefits of Section 2.03 , as applicable).
(g)      Conflicting Provisions . This Section shall supersede any provisions in Section 2.10 to the contrary.
2.12      Refinancing Debt .
(a)      Refinancing Facility . The Borrower may, without the consent of any Lender, extend, refinance, renew or replace, in whole or in part, the Loans under any Facility with one or more term loan facilities (each, a “ Refinancing Facility ”); provided that any such request for an Refinancing Facility shall be in a minimum amount equal to the lesser of (i) $25,000,000 and (ii) the entire amount of any Facility which is being extended, refinanced, renewed or replaced under this Section 2.12 .
(b)      Refinancing Facility Lender . A Refinancing Facility may be provided by (i) an existing Lender (but no Lender shall be obligated to provide a commitment in respect of a Refinancing Facility, nor shall the Borrower have any obligation to approach any existing Lenders to provide a commitment in respect of a Refinancing Facility) or (ii) any other Refinancing Facility Lender so long as any such Person is an Eligible Assignee and is approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed) and any other Person who would have consent rights pursuant to Section 10.06(b) if such Refinancing Facility Lender was becoming a Lender. Subject to any such consents being received and if not already a party hereto, any such Refinancing Facility Lender may become a party to this Agreement by entering into a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c)      Effective Date . In connection with any Refinancing Facility, the Administrative Agent and the Borrower shall determine the effective date (the “ Refinancing Facility Effective Date ”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the principal amount of the Refinancing Facility and the Refinancing Facility Effective Date.
(d)      Conditions to Effectiveness of Refinancing Facility . The effectiveness of each Refinancing Facility shall be subject to the following conditions:
(i)      the aggregate principal amount (or accreted value, if applicable) of any Refinancing Facility will not exceed the outstanding aggregate principal amount (or accreted

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value, if applicable) of the portion of the Facility which it is extending, refinancing, renewing or replacing plus any Permitted Refinancing Increase, unless such additional principal amount would otherwise be permitted pursuant to (and any such additional amount shall be deemed to have been incurred under) Section 7.03 and, if applicable, Section 7.01 ;
(ii)      such Refinancing Facility shall have the same guarantees as, and be secured on a pari passu basis with, the Secured Obligations (pursuant to documentation that is not more restrictive than the Loan Documents), shall not have any direct or indirect obligors that are not Loan Parties, and shall not be secured by any assets that do not also constitute Collateral as the Term Loan Facility, provided that, if agreed by the Borrower and the relevant Refinancing Facility Lenders, the Refinancing Facility may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Refinancing Facility may rank junior to the Liens securing the Term Loan Facility;
(iii)      such Refinancing Facility (A) shall have (1) a final maturity no earlier than the then-latest Maturity Date (or, in the case of a Refinancing Facility that is secured on a junior basis, or that is unsecured, prior to the date which is 180 days after the then-latest Maturity Date) and (2) a weighted average life no shorter than that of the Term Loan Facility (or, in the case of a Refinancing Facility that is secured on a junior basis, or that is unsecured, shorter than the date which is 180 days after the then-latest Maturity Date) and (B) shall not have any terms which require it to be voluntarily or mandatorily prepaid prior to the repayment in full of the Term Loans, unless accompanied by at least a ratable payment of the Term Loans;
(iv)      the proceeds of such Refinancing Facility shall be applied, substantially concurrently with the incurrence thereof, to the pro rata repayment of the outstanding Loans under the Facility being so refinanced;
(v)      such Refinancing Facility shall be subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent; and
(vi)      to the extent such terms and documentation for the Refinancing Facility are not substantially consistent with the applicable Loan Documents, they shall be customary and reasonably satisfactory to the Administrative Agent, unless such terms and documentation (A) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Refinancing Facility or (B) only apply after the then-latest Maturity Date (or, in the case of a Refinancing Facility that is secured on a junior basis, or that is unsecured, no earlier than the date which is 180 days after the then-latest Maturity Date), in each case, as certified by the chief financial officer of the Borrower in good faith prior to such incurrence or issuance; provided that any security documentation for the Refinancing Facility may not be more restrictive to the Borrower than the Security Documents.
(e)      Amendment . With the consent of the Lenders providing a Refinancing Facility, the Borrower and the Administrative Agent (and without the consent of the other Lenders), this Agreement shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) to reflect any changes necessary to give effect to such

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Refinancing Facility in accordance with its terms (including, without limitation, to give such Refinancing Facility the benefits of Section 2.03 , as applicable).
(f)      Conflicting Provisions . This Section shall supersede any provisions in Section 2.10 to the contrary.
2.13      Defaulting Lenders . Notwithstanding anything contained in this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(a)      Reallocation of Loan Payments . Any payment or prepayment (i) of any portion of the principal amount of Loans of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied, first , to the then outstanding amounts (including interest thereon) owed under the terms hereof by such Defaulting Lender to the Administrative Agent or (to the extent the Administrative Agent has received notice thereof) to any other Lender, ratably to the Persons entitled thereto, and second , the balance, if any, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (ii) of any other amounts thereafter received by the Administrative Agent for the account of such Defaulting Lender (including amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 10.08 ) to have been paid to such Defaulting Lender and applied on behalf of such Defaulting Lender, first , to the liabilities above referred to in item first of clause (i) above, and second , the balance, if any, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. Any of such amounts as are reallocated pursuant to this Section 2.13(a) that are payable or paid (including pursuant to Section 10.08 ) to such Defaulting Lender shall be deemed paid to such Defaulting Lender and applied by the Administrative Agent on behalf of such Defaulting Lender, and each Lender hereby irrevocably consents thereto.
A Lender that has become a Defaulting Lender because of an event referenced in the definition of Defaulting Lender may cure such status and shall no longer constitute a Defaulting Lender as a result of such event when (i) such Defaulting Lender shall have fully funded or paid, as applicable, all Loans or other amounts required to be funded or paid by it hereunder as to which it is delinquent (together, in each case, with such interest thereon as shall be required to any Person as otherwise provided in this Agreement), (ii) the Administrative Agent and each of the Borrower shall have received a certification by such Defaulting Lender of its ability and intent to comply with the provisions of this Agreement going forward, and (iii) each of the Administrative Agent, any other Lender as to which a delinquent obligation was owed and the Borrower, shall have determined (and notified the Administrative Agent) that they are satisfied, in their sole discretion, that such Defaulting Lender intends to continue to perform its obligations as a Lender hereunder and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder. No reference in this subsection to an event being “cured” shall by itself preclude any claim by any Person against any Lender that becomes a Defaulting Lender for such damages as may otherwise be available to such Person arising from any failure to fund or pay any amount when due hereunder or from any other event that gave rise to such Lender’s status as a Defaulting Lender.

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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01      Taxes .
(a)      Payments Free of Taxes . Any and all payments by or on behalf of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith of the applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01(a) ) the applicable Recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)      Payment of Other Taxes by the Borrower . Without duplication of any obligation set forth in subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes.
(c)      Indemnification by the Borrower . The Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient, or required to be withheld or deducted from a payment to such Recipient, on or with respect to any payment made by or on account of any obligation of the Loan Parties under any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d)      Evidence of Payments . As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01 , the applicable Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e)      Status of Lenders . Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law and from time to time when reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will

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permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
Each Lender that is not a Foreign Lender shall deliver to the Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable law or upon the reasonable request of the Borrower or Administrative Agent), two duly completed and executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.
Without limiting the generality of the foregoing, each Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable or any subsequent version thereof or successor thereto:
(i)      in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, duly completed and executed copies of IRS Form W-8BEN or IRS W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,
(ii)      duly completed and executed copies of IRS Form W-8ECI,
(iii)      in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) duly completed and executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable,
(iv)      to the extent a Foreign Lender is not the beneficial owner, duly completed and executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio

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interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner, and
(v)    duly completed and executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed and executed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or Administrative Agent to determine the withholding or deduction required to be made; provided, that notwithstanding anything to the contrary in this Section 3.01(e) , the completion, execution and submission of the documentation described in this clause (v) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times as reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for the purposes of this paragraph, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
Notwithstanding the foregoing, no Lender or any Participant shall be required to deliver any form or other document under this Section 3.01(e) that it is not legally entitled to deliver.
(f)      Treatment of Certain Refunds . If the Administrative Agent or any Lender receives a refund with respect to Taxes to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01 ), which in the reasonable discretion and judgment exercised in good faith of such Administrative Agent or Lender is allocable to such payment, it shall promptly pay such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Administrative Agent or Lender incurred in obtaining such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided , however , that the Borrower agrees to promptly return such amount, net of any incremental additional costs ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority), to the

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applicable Administrative Agent or Lender, as the case may be, if it receives notice from the applicable Administrative Agent or Lender that such Administrative Agent or Lender is required to repay such refund to the relevant Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f) , in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower pursuant to this paragraph (f) the payment of which would place the Administrative Agent or any Lender in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
(g)     Survival . Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
3.02      Illegality . If any Lender determines that as a result of any Change in Law it becomes unlawful, or that any Governmental Authority asserts that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurocurrency Rate Loans or to convert Base Rate Loan to Eurocurrency Rate Loans, shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender, which it shall do as promptly as possible, that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

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3.03      Inability to Determine Rates . If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (b) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (i) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended and (ii) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (upon the instruction of the Required Lenders, who agree to so instruct the Administrative Agent once the circumstances giving rise to the inability ability to determine rates no longer exist) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
3.04      Increased Costs; Reserves on Eurocurrency Rate Loans .
(a)      Increased Costs Generally . If any Change in Law shall:
(i)      impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency Rate contemplated by Section 3.04(e) );
(ii)      subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)      impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurocurrency Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such other Recipient, or to reduce the amount of any sum received or receivable by such Lender or such other Recipient (whether of principal, interest or any other amount) then, upon written request of such Lender or such other Recipient setting forth in reasonable detail such increased costs, the Borrower will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered; provided that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and

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legal and regulatory restrictions and so long as such efforts would not be materially disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different Eurocurrency lending office if the making of such designation would allow the Lender or its Eurocurrency lending office to continue to perform its obligation to make Eurocurrency Rate Loans or to continue to fund or maintain Eurocurrency Rate Loans and avoid the need for, or reduce the amount of, such increased cost.
(b)      Capital Requirements . If any Lender reasonably determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital requirements has the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time, after submission to the Borrower (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the change and the calculation of such reduced rate of return, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c)      Certificates for Reimbursement . A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section, describing the basis therefor and showing the calculation thereof in reasonable detail, and delivered to the Borrower shall be conclusive, absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
(d)      Delay in Requests . Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 90 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e)      Additional Reserve Requirements . The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “ Eurocurrency liabilities ”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as reasonably determined by such Lender in good faith, which determination shall be conclusive, absent manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and

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rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive, absent manifest error), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 Business Days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender describing the basis therefor and showing the calculation thereof, in each case, in reasonable detail. If a Lender fails to give notice 10 Business Days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable within 30 days from receipt of such notice.
(f)      Certain Rules Relating to the Payment of Additional Amounts . If any Lender requests compensation pursuant to this Section 3.04 , or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , such Lender shall either (A) forego payment of such additional amount from the Borrower or (B) reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Indemnified Taxes or other amounts giving rise to such payment; provided that the Borrower shall reimburse such Lender for its reasonable and documented out-of-pocket costs, including reasonable and documented attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Indemnified Taxes or other amounts.
3.05      Compensation for Losses . Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)      any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)      any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c)      any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13 ;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract, but excluding any loss of anticipated profits. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate used in determining the Eurocurrency Rate for such Loan by a

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matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
3.06      Mitigation Obligations; Replacement of Lenders .
(a)      Designation of a Different Lending Office . If any Lender requests compensation under Section 3.04 , or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then such Lender shall (i) use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (A) would eliminate or reduce amounts payable pursuant to Sections 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (B) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender and (ii) promptly inform the Borrower and Administrative Agent when the circumstances giving rise to the applicability of such Sections no longer exists. The Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)      Replacement of Lenders . If any Lender requests compensation under Section 3.04 , if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , if any Lender gives a notice pursuant to Section 3.02 or if any Lender is at such time a Defaulting Lender, then the Borrower may replace such Lender in accordance with Section 10.13 .
3.07      Survival . The parties’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT
4.01      Closing Date . The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent:
(a)    The Administrative Agent’s receipt of the following, each of which shall be (w) originals, telecopies or electronic copies (followed promptly by originals), (x) properly executed by a duly authorized officer of the signing Loan Party, if and as applicable, (y) dated on or before the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and (z) in form and substance reasonably satisfactory to the Administrative Agent and, in the case of Security Documents, the Collateral Agent:
(i)    executed counterparts of (a) this Agreement from the parties hereto and (b) the Guaranty from each of the Loan Parties;
(ii)    Notes executed by the Borrower in favor of each Lender requesting Notes;

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(iii)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;
(iv)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v)    the executed opinion of Hunton & Williams LLP, counsel to the Borrower and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, in form and substance reasonably acceptable to the Administrative Agent and Collateral Agent;
(vi)    (i) unaudited consolidated financial statements for the quarter ending September 30, 2016 prepared in accordance with GAAP and (ii) financial projections (including the assumption on which such projections are based) for fiscal years 2017 through 2021;
(vii)    a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has not occurred since December 31, 2016, any Material Adverse Effect;
(viii)    a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit H , which demonstrates that the Borrower and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent.
(b)    The Borrower shall have obtained (i) a public corporate credit rating from Moody’s, (ii) a public corporate credit rating from S&P, (iii) a public credit rating for the Term Loans from Moody’s and (iv) a public credit rating for the Term Loans from S&P.
(c)    The Borrower and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d)    The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.07 .

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(e)    Subject to Section 6.20 , in order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Security Documents), each Loan Party shall have delivered to Collateral Agent:
(i)      executed counterparts of the Security Agreement;
(ii)      evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Security Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii)      a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby;
(iv)      fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(v)      evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03 ) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(f)    Any fees required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders under this Agreement, the Fee Letter or otherwise in connection with the Facilities shall have been paid and, unless waived by the Administrative Agent, the Arrangers or the Lenders, as applicable, to the extent invoiced at least three Business Days prior to the Closing Date, the Borrower shall have paid all reasonable and documented costs and expenses of the Administrative Agent, Arrangers and the Lenders (including the reasonable and documented fees and expenses of counsel to the Administrative Agent and the Lenders).
(g)    There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in writing in any court or before any arbitrator or Governmental Authority that impairs the ability of the Loan Parties to consummate the Transactions and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.


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(h)    The Arrangers and the Agents shall have received at least three business days prior to the Closing Date all documentation and other information required by the Arrangers’ and the Agents’ regulatory authorities with respect to the Borrower and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Closing Date.
(i)    Substantially concurrently with the funding of the Term Loans on the Closing Date, the Refinancing shall have been consummated and the Arrangers shall have received reasonably satisfactory evidence that all other Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness permitted under Section 7.03 ) shall have been extinguished, repaid or repurchased in full, all commitments relating thereto shall have been terminated, and all liens or security interests related thereto shall have been terminated or released.
Without limiting the generality of the provisions of Section 9.04 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02      Conditions to all Borrowings (Including on the Closing Date) . The obligation of each Lender to honor any Borrowing Notice is subject to the following conditions precedent:
(a)      The representations and warranties of (i) the Borrower contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02 following the Closing Date, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 ; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(b)      No Default or Event of Default shall exist (unless otherwise waived in writing in accordance herewith), or would result immediately, from such proposed Borrowing or the application of the proceeds thereof.
(c)      The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
It is understood, for avoidance of doubt, that each Borrowing made in connection with the effectiveness of any Incremental Facility, the proceeds of which are used to consummate a

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Permitted Acquisition, will be subject to the conditions set forth in clauses (a) and (b) only to the extent specified in Section 2.11(d)(i) .
Each Borrowing Notice (other than a Borrowing Notice requesting only a conversion of Term Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 4.02(a) and (b) have been satisfied on and as of the date of the applicable Borrowing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent, the Collateral Agent and the Lenders that:
5.01      Existence, Qualification and Power . Each of the Borrower and its Restricted Subsidiaries (a) (i) is duly organized or formed and validly existing and (ii) is in good standing under the Laws of the jurisdiction of its incorporation or organization, if such legal concept is applicable in such jurisdiction, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified, licensed, and in good standing (to the extent good standing is an applicable legal concept in the relevant jurisdiction), under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clauses (a)(ii) , (b)(i) or (c) , to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.02      Authorization; No Contravention . The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) violate the terms of any of such Person’s Organizational Documents; (ii) violate or result in any breach of, or the creation of, any Lien (except for any Liens that may arise under the Loan Documents) under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority to which such Person or its property is subject or (C) any arbitral award to which such Person or its property is subject; or (iii) violate any Law binding on such Loan Party, except in each case referred to in clauses (b)(ii) or (b)(iii) to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.03      Governmental Authorization . No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions except for (a) the filing of UCC financing statements and certificates of title, (b) filings with the United States Patent and Trademark Office and the United States Copyright Office, (c) recordation of the Mortgages, (d) such consents, authorizations, filings or other actions that have either (i) been made or obtained and are in full force and effect or (ii) are listed on Schedule 5.03 and (e) such actions, consents and approvals

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the failure to be obtained or made which would not reasonably be expected to have a Material Adverse Effect.
5.04      Binding Effect . This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally, general principles of equity, regardless of whether considered in a proceeding in equity or at law and an implied covenant of good faith and fair dealing.
5.05      Financial Statements; No Material Adverse Effect .
(a)      The Audited Financial Statements of the Borrower and its Subsidiaries (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b)      The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated September 30, 2016 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on such date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of such dates and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end adjustments.
(c)      There has not occurred, since December 31, 2016, any Material Adverse Effect.
(d)    The financial projections delivered pursuant to Section 4.01(a)(vii) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable in light of the conditions existing at the time of delivery of such forecasts (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized, that actual results may differ and such differences may be material).
5.06      Litigation . There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of a Responsible Officer of the Borrower threatened in writing, at law, in equity, by or before any Governmental Authority, by or against the Borrower or any of its Restricted Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated

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hereby, or (b) as to which there is a reasonable possibility of an adverse determination and that, if so determined, would reasonably be expected to have a Material Adverse Effect.
5.07      No Default . None of the Borrower or any of its Restricted Subsidiaries is in default under or with respect to any Contractual Obligation that would reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08      Ownership and Identification of Property .
(a)      The Borrower and its Restricted Subsidiaries have good record and marketable (subject to Permitted Liens) title in fee simple to, or valid leasehold, easement or contractual interests in, all real property necessary or used in the ordinary conduct of its business as it is currently conducted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, with respect to all real property listed on Schedule 5.08(c) : (i) the Borrower and its Restricted Subsidiaries possess all leasehold interests necessary for the operation of the Mines currently being operated by each of them and included or purported to be included in the Collateral pursuant to the Security Documents, except where the failure to possess such leasehold interests would not reasonably be expected to have a Material Adverse Effect, (ii) each of their respective rights under the leases, contracts, rights-of- way and easements necessary for the operation of such Mines are in full force and effect, except to the extent that failure to maintain such leases, contracts, rights of way and easements in full force and effect would not reasonably be expected to have a Material Adverse Effect; and (iii) each of the Borrower and its Restricted Subsidiaries possesses all licenses, permits or franchises which are necessary to carry out its business as presently conducted at any Mine included or purported to be included in the Collateral pursuant to the Security Documents, except where failure to possess such licenses, permits or franchises would not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
(b)      Schedule 5.08(b) lists completely and correctly as of the Closing Date all Material Real Property fee owned by the Borrower and the other Loan Parties.
(c)      Schedule 5.08(c) lists completely and correctly as of the Closing Date all Material Real Property leased by the Borrower and the other Loan Parties and the lessors thereof.
5.09      Environmental Compliance . Except as disclosed on Schedule 5.09 and except as to matters that would not reasonably be likely to have a Material Adverse Effect:
(a)    To the knowledge of a Responsible Officer of the Borrower, the facilities and properties currently owned, leased or operated by the Borrower, or by any of its respective Restricted Subsidiaries (the “ Properties ”), do not contain any Hazardous Materials in amounts or concentrations which (i) constitute a violation of, or (ii) would reasonably be expected to give rise to liability under, any applicable Environmental Law.
(b)    None of the Borrower, nor any of its respective Restricted Subsidiaries, has received any written notice of violation, alleged violation, non-compliance, liability or potential liability regarding compliance with or liability under Environmental Laws with regard to any of

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the Properties or the business operated by the Borrower or by any of its Restricted Subsidiaries (the “ Business ”).
(c)    To the knowledge of a Responsible Officer of the Borrower, Hazardous Materials have not been transported or disposed of from the Properties by the Borrower or any Restricted Subsidiary in violation of, or in a manner or to a location which would reasonably be expected to give rise to liability under, any applicable Environmental Law, nor have any Hazardous Materials been generated, treated, stored or disposed of by the Borrower or any Restricted Subsidiary at or under any of the Properties in violation of, or in a manner that would reasonably be expected to give rise to liability under, any applicable Environmental Law.
(d)    No judicial proceeding or governmental or administrative action is pending or, to the knowledge of a Responsible Officer of the Borrower, threatened in writing under any Environmental Law to which the Borrower, or any of its Restricted Subsidiaries is or, to the knowledge of a Responsible Officer of the Borrower, will be named as a party or with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other similar administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business.
(e)    To the knowledge of a Responsible Officer of the Borrower, there has been no release or threat of release of Hazardous Materials at or from the Properties, or arising from or related to the operations of the Borrower, or any of its Restricted Subsidiaries in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that would reasonably be expected to give rise to liability under any applicable Environmental Laws.
(f)    The Borrower, and each of its Restricted Subsidiaries, has obtained (or in a timely manner applied for), and is in compliance with, all Environmental Permits required for its business, as currently conducted, and all such Environmental Permits are in full force and effect.
5.10      Insurance .
(a)      The properties of the Borrower and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates.
(b)      As to any Building located on Material Real Property and constituting Collateral, all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.
5.11      Taxes . The Borrower and its Restricted Subsidiaries have timely filed all applicable US Federal, state, foreign and other material tax returns and reports required to be filed, and have timely paid all US Federal, state, foreign and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been

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provided in accordance with GAAP, if required, or (b) where failure to do any of the foregoing would not reasonably be expected to result in a Material Adverse Effect; no material tax Lien has been filed which would not be permitted under Section 7.01 and, to the knowledge of a Responsible Officer of the Borrower, no material claim is being asserted, with respect to any material tax, fee or other charge which would reasonably be expected to result in a Material Adverse Effect.
5.12      ERISA Compliance . Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(a)      Each Plan is in material compliance in all respects with the applicable provisions of ERISA, the Code and other Federal or state Laws (except that with respect to any Multiemployer Plan which is a Plan, such representation is deemed made only to the knowledge of a Responsible Officer of the Borrower), and each Foreign Plan is in material compliance in all respects with the applicable provisions of Laws applicable to such Foreign Plan.
(b)      There has been no nonexempt “prohibited transaction” (as defined in Section 406 of ERISA) or violation of the fiduciary responsibility rules with respect to any Plan.
(c)      (i) As of the Closing Date, no ERISA Event has occurred or is reasonably expected to occur; and (ii) no Pension Plan has any Unfunded Pension Liability.
5.13      Subsidiaries . As of the Closing Date, the Borrower has no Subsidiaries other than those specifically disclosed in Schedule 5.13 .
5.14      Margin Regulations; Investment Company Act .
(a)      The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b)      Neither the Borrower nor any Restricted Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
5.15      Disclosure . No report, financial statement, certificate or other information (other than projections and other forward looking information and information of a general economic or industry nature) furnished in writing by or on behalf of any Loan Party to the Administrative Agent, the Collateral Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document, taken as whole with any other information furnished or publicly available, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading as of the date when made or delivered; provided that, with respect to any forecast, projection or other statement regarding future performance, future financial results or other future developments, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of delivery of such information (it being understood that any such information is subject to significant uncertainties

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and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized, that actual results may differ and that such differences may be material).
5.16      Compliance with Laws . The Borrower and each Restricted Subsidiary is in compliance in all material respects with the requirements of all Laws (including any zoning, building, ordinance, code or approval or any building or mining permits and all orders, writs, injunctions and decrees applicable to it or to its properties), except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
5.17      Anti-Corruption; Sanctions; Terrorism Laws .
(a)      None of the Borrower, any Restricted Subsidiary nor, to the knowledge of a Responsible Officer of the Borrower after due inquiry, any director, officer, agent, employee or Affiliate of the Borrower or any Restricted Subsidiary is (i) a person on the list of “Specially Designated Nationals and Blocked Persons” or (ii) subject of any active sanctions administered or enforced by the U.S. Department of State or the U.S. Department of Treasury (including the Office of Foreign Assets Control) or any other applicable governmental authority (collectively, “ Sanctions ”, and the associated laws, rules, regulations and orders, collectively, “ Sanctions Laws ”); and the Borrower will not directly or, to the knowledge of a Responsible Officer of the Borrower after due inquiry, indirectly use the proceeds of the Loans for the purpose of financing the activities of any Person that is the subject of, or in any country or territory that at such time is the subject of, any Sanctions.
(b)      The Borrower and each Restricted Subsidiary is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the USA PATRIOT Act (Title III of Pub. L. 107-56), as amended (the “ PATRIOT Act ”), (iii) Sanctions Laws and (iv) Anti-Corruption Laws.
(c)      No part of the proceeds of any Loan will be used, directly or, to the knowledge of a Responsible Officer of the Borrower after due inquiry, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “ Anti-Corruption Laws ”).
5.18      Intellectual Property; Licenses, Etc. The Borrower and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “ IP Rights ”) that are reasonably necessary for the operation of their respective businesses, except where the failure to own or possess the right to use such IP Rights would not reasonably be expected to have a Material Adverse Effect. To the knowledge of a Responsible

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Officer of the Borrower, the use of such IP Rights by the Borrower or any Restricted Subsidiary does not infringe upon any rights held by any other Person except for any infringement that would not reasonably be expected to have a Material Adverse Effect. Except as specifically disclosed in Schedule 5.18 , no claim or litigation regarding any of the foregoing is pending or, to the knowledge of a Responsible Officer of the Borrower, threatened in writing, which would reasonably be expected to have a Material Adverse Effect.
5.19      Security Documents .
(a)      (i) Each Security Document (other than each Mortgage), when executed and delivered, is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties), a legal, valid and enforceable security interest in the Collateral described therein and the Collateral Agent has been authorized (and is hereby authorized) to make all filings of UCC-1 and as-extracted collateral financing statements in the appropriate filing office necessary or desirable to fully perfect the Collateral Agent’s security interest in such Collateral described therein which can be perfected by filing a UCC-1 financing statement in the appropriate filing office, and (ii) with respect to the security interest created in the Collateral pursuant to each Security Document (other than each Mortgage), upon such filings (or, with respect to possessory Collateral, upon the taking of possession by the Collateral Agent (or by the ABL Agent as bailee for the Collateral Agent pursuant to the ABL Intercreditor Agreement, if applicable) of any such Collateral which may be perfected by possession), such security interests will constitute perfected First Priority Liens on, and security interests in, all right, title and interest of the debtor party thereto in the Collateral described therein that can be perfected by filing a UCC-1 or as-extracted financing statement, as applicable, in the appropriate filing office or by delivery, in the case of possessory Collateral.
(b)      Each of the Mortgages, when executed and delivered, will be effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable (subject to equity and creditors’ rights generally) lien on the Material Real Property described therein and such security interests will constitute, upon such Mortgage being and recorded in the appropriate filing offices, First Priority Liens on such Material Real Property, subject to Permitted Real Estate Encumbrances.
5.20      Mines . Schedule 5.20 sets forth a complete and accurate list of any Mine (including addresses and the owner or lessor thereof) owned or operated by the Borrower or any of its Restricted Subsidiaries as of the Closing Date and included or purported to be included in the Collateral pursuant to the Security Documents.
5.21      Solvency . The Borrower and its Restricted Subsidiaries are and, upon the incurrence of any Obligation by any Loan Party on any date on which this representation and warranty is made, will be, on a consolidated basis, Solvent.
5.22      Labor Relations . Neither the Borrower nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that would reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against the Borrower or any of its Restricted Subsidiaries, or to the knowledge of a Responsible Officer of the Borrower, threatened in writing against any of them before the National Labor Relations

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Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against the Borrower or any of its Restricted Subsidiaries or to the knowledge of a Responsible Officer of the Borrower, threatened in writing against any of them, (b) no strike or work stoppage in existence or, to the knowledge of a Responsible Officer of the Borrower, threatened in writing involving the Borrower or any of its Restricted Subsidiaries, and (c) to the knowledge of a Responsible Officer of the Borrower, no union representation question existing with respect to the employees of the Borrower or any of its Restricted Subsidiaries and, to the knowledge of a Responsible Officer of the Borrower, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.
5.23      Agreements .    Neither the Borrower nor any of its Restricted Subsidiaries is a party to any agreement, instrument or other document or subject to any corporate or other constitutional restriction, or any restriction under its Organizational Documents, that has resulted, or would reasonably be expected to result, in a Material Adverse Effect.    
5.24      Senior Debt . The Term Loan Facility constitutes “Senior Debt”, as defined in any Intercreditor Agreement, for purposes of such Intercreditor Agreement.
ARTICLE VI.
AFFIRMATIVE COVENANTS
Until Payment in Full, the Borrower shall, and shall cause each of its respective Restricted Subsidiaries to:
6.01      Financial Statements . Deliver to the Administrative Agent, for distribution by the Administrative Agent to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a)    as soon as available, but in any event within 120 days after the end of each fiscal year of the Borrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Company for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal year ended December 31, 2016), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP; provided that the Borrower shall not be required to include comparable prior period financial statements and related information in any annual report prior to the quarterly report for the quarter ended September 30, 2017; such consolidated statements shall be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than with respect to or resulting from the upcoming

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maturity of any Loans under this Agreement or the ABL Credit Documents, occurring within one year from the time such opinion is delivered); and
(b)      as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal quarter ended March 31, 2017), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form commencing with the fiscal quarter ended September 30, 2017, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail; such consolidated statements shall be certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
6.02      Certificates; Other Information . Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a)      concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2017), (i) a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower and (ii) a detailed reconciliation of such financial information for the Borrower and its Restricted Subsidiaries, on the one hand, and the Borrower’s Unrestricted Subsidiaries, on the other hand; provided, that, for the avoidance of doubt, any such reconciliation of the financial statements referred to in Section 6.01(a) shall not be audited;
(b)      promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(c)      promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request and which the Borrower determines, in its sole discretion, may be provided to a third- party without causing a breach of any law, rule, regulation or contractual obligation of the Borrower or any Subsidiary;
(d)      as soon as available, not later than 90 days after the end of each fiscal year of the Borrower, a copy of summary projections by the Borrower of the operating budget and cash flow budget of the Borrower and its Subsidiaries for the succeeding fiscal year, such projections to be

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accompanied by a certificate of a Responsible Officer to the effect that such projections have been prepared based on assumptions believed by the Borrower to be reasonable (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized); and
(e)      within five Business Days after delivering to the ABL Agent(s) any borrowing base report, collateral valuation, perfection certificate, collateral certificate or other notice or information with respect to the ABL Priority Collateral or any other collateral securing the ABL Facility pursuant to the ABL Credit Documents, a copy of such borrowing base report, collateral valuation, perfection certificate, collateral certificate or other notice or information.
Documents required to be delivered pursuant to clauses (a) and (b) of Section 6.01 or clause (b) of Section 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders may be “public-side” Lenders ( i.e. , Lenders that do not wish to receive material non- public information with respect to the Borrower or its securities) (each, a “ Public Lender ”). The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (a) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent the Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07 ); and (c) all Borrower Materials marked “PUBLIC” or not marked as containing material non-public information are permitted to be made available through a portion of the Platform designated “Public Investor.” Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark the Borrower Materials “PUBLIC” or as containing material non- public information. In connection with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not in derogation of their confidentiality obligations under Section 10.07 .
6.03      Notices . Notify the Administrative Agent:
(a)      promptly, after knowledge of a Responsible Officer of the Borrower, of the occurrence of any Default or Event of Default hereunder or the occurrence of any “Default” or “Event of Default” under the ABL Credit Documents;

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(b)      promptly, after knowledge of a Responsible Officer of the Borrower, of any event which would reasonably be expected to have a Material Adverse Effect;
(c)      of the occurrence of any ERISA Event that, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect, as soon as possible and in any event within 30 days after a Responsible Officer of the Borrower knows or has obtained notice thereof;
(d)      promptly, upon the filing or commencement of, or any written and known threat or written and known notice of intention of any person to file or commence, any action, suit, proceeding, claim or dispute whether at law or in equity or otherwise by or before any Governmental Authority, (i) against the Borrower or any of its Restricted Subsidiaries or against any of their properties or revenues that has had, or would reasonably be expected to result in, a Material Adverse Effect or (ii) with respect to this Agreement or any other Loan Document;
(e)      within 10 Business Days after the Borrower or any Guarantor changing its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business; and
(f)      promptly, after knowledge of a Responsible Officer of the Borrower, as to any Building located on Material Real Property and constituting Collateral, any redesignation of any such property on which such Building is located into or out of a special flood hazard area.
Each notice pursuant to clauses (a)-(d) of this Section shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
6.04      Payment of Obligations . Except where failure to do so would not reasonably be expected to result in a Material Adverse Effect, with respect to the Borrower and each of its Restricted Subsidiaries, pay their Indebtedness and other obligations promptly and in accordance with their terms and pay and discharge all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary.
6.05      Preservation of Existence . Preserve, renew and maintain in full force and effect its legal existence except in a transaction permitted by Section 7.04 .
6.06      Maintenance of Properties . (a) Maintain, preserve and protect all of its material properties and material equipment, including Collateral, necessary (in the Borrower’s good faith judgment) to the operation of its business as then being conducted in the condition maintained by prudent operators in the industry, subject to the depletion of coal reserves in the ordinary course of business.
(b)      Except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect, keep in full force and effect all of its material leases and other material contract rights, and all material rights of way, easements and privileges necessary (in the

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Borrower’s good faith judgment) for the proper operation of the Mines then being operated by the Borrower or a Restricted Subsidiary and included or purported to be included in the Collateral by the Security Documents.
6.07      Maintenance of Insurance . (a) Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates, except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b)    With respect to any Building located on Material Real Property and constituting Collateral, the Borrower shall and shall cause each appropriate Loan Party to (i) maintain fully paid flood hazard insurance on any such Building that is located in a special flood hazard area, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 and (ii) furnish to the Administrative Agent an insurance certificate evidencing the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof (or at such other time acceptable to the Administrative Agent). The Borrower shall cooperate with the Administrative Agent’s reasonable request for any information reasonably required by the Administrative Agent to comply with The National Flood Insurance Reform Act of 1994, as amended.
6.08      Compliance with Laws . Comply in all respects with the requirements of all Laws (including the PATRIOT Act, Sanctions Laws, the Anti-Corruption Laws and Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect (or, in the case of compliance with the PATRIOT Act, Sanctions Laws and the Anti-Corruption Laws, the failure to comply therewith is not material).
6.09      Books and Records . (a) Maintain proper books of record and account, in conformity with GAAP, in which in all material respects full, true and correct entries in conformity with GAAP shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all material requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Restricted Subsidiary, as the case may be.
6.10      Inspection Rights . Upon reasonable advance written notice, permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom (except to the extent (a) any such access is restricted by a Requirement of Law or (b) any such agreements, contracts or the like are subject to a written confidentiality agreement with a non-Affiliate that prohibits the Borrower or any of its Subsidiaries from granting such access to the Administrative Agent; provided that, with respect

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to such confidentiality restrictions affecting the Borrower or any of its Restricted Subsidiaries, a Responsible Officer of the Borrower is made available to the Administrative Agent to discuss such confidential information to the extent permitted by the confidentiality restrictions, as determined in the sole discretion of the Borrower), and to discuss the business, finances and accounts with its officers and independent public accountants at such reasonable times during normal business hours and as often as may be reasonably desired, provided that the Administrative Agent shall give the Borrower reasonable advance written notice prior to any contact with such accountants and give the Borrower the opportunity to participate in such discussions, provided further that the costs of one such visit per calendar year (or an unlimited amount if an Event of Default has occurred and is continuing) for the Administrative Agent and their representatives as a group shall be the responsibility of the Borrower and, absent an Event of Default, the Administrative Agent and their representatives as a group shall visit no more often than twice in any twelve month period. Notwithstanding the foregoing, Mine visits are only permitted if the representatives and independent contractors of the Administrative Agent agree to be bound by and adhere to all Requirements of Law and any policy of the Borrower.
6.11      Use of Proceeds . Use the proceeds of the Term Loan Facility (a) on the Closing Date, for the Refinancing and to pay the Transaction Costs, and (b) after the Closing Date, for ongoing working capital, capital expenditures and for other lawful corporate purposes of the Borrower and its Subsidiaries, including for acquisitions.
6.12      Additional Guarantors . If the Borrower or any of its Restricted Subsidiaries acquires or creates another Subsidiary after the Closing Date which by virtue of the definition of Guarantor is required to be a Guarantor then (unless designated as an Unrestricted Subsidiary pursuant to Section 6.13 ) the Borrower shall cause, within 60 days (or such later date as the Administrative Agent agrees) of such acquisition or creation, any such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty or such other document as the Administrative Agent shall deem appropriate for such purpose.
6.13      Unrestricted Subsidiaries . Any Restricted Subsidiary may be designated as an Unrestricted Subsidiary and any Unrestricted Subsidiary may be designated as a Restricted Subsidiary upon delivery to the Administrative Agent of written notice from the Borrower; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) immediately after giving effect to such designation, on a Pro Forma Basis, the Total Leverage Ratio shall be equal to or less than 2.00:1.00, (c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of any of the ABL Credit Documents or any documents evidencing any Permitted Refinancing Indebtedness or any Subordinated Indebtedness and (d) each Restricted Subsidiary to be designated as an Unrestricted Subsidiary and its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness other than Non-Recourse Debt. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment under Section 7.02 by the Borrower therein at the date of designation in an amount equal to the net book value of the Borrower’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Restricted Subsidiary existing at such time.

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6.14      Preparation of Environmental Reports . If an Event of Default caused by reason of a breach under Sections 6.08 or 5.09 with respect to compliance with Environmental Laws shall have occurred and be continuing, at the reasonable request of the Required Lenders through the Administrative Agent, provide to the Lenders within 60 days after such request (or such longer period as may be agreed) information regarding the nature of the breach and the remedial action being taken or proposed to be taken with respect to the Properties which are the subject of the breach.
6.15      Certain Long Term Liabilities and Environmental Reserves . To the extent applicable and required by GAAP, maintain adequate reserves for (a) future costs associated with any lung disease claim alleging pneumoconiosis or silicosis or arising out of exposure or alleged exposure to coal dust or the coal mining environment, (b) future costs associated with retiree and health care benefits, (c) future costs associated with reclamation of disturbed acreage, removal of facilities and other closing costs in connection with closing its mining operations and (d) future costs associated with other potential environmental liabilities.
6.16      Covenant to Give Security .
(a)      Personal Property including IP of New Guarantors . Concurrently with any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12 (or a later date to which the Administrative Agent agrees), cause any such Restricted Subsidiary to (i) duly execute and deliver to the Collateral Agent counterparts to the Security Agreement or such other document as the Administrative Agent or the Collateral Agent shall reasonably deem appropriate for such purpose, (ii) to the extent that any Capital Stock in, or owned by, such Restricted Subsidiary is required to be pledged pursuant to the Security Agreement, deliver stock certificates, if any, representing such Capital Stock accompanied by undated stock powers or instruments of transfer executed in blank, (iii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent or the Collateral Agent and (iv) comply with all other requirements of the Security Agreement with respect to the Collateral of such Guarantor.
(b)      Real Property Acquired by Borrower and Guarantors .
(i)      Material Real Property Mortgages and Flood Insurance . If the Borrower or any of its Restricted Subsidiaries acquires any additional Material Real Property after the Closing Date (including by virtue of any previously excluded real property becoming Material Real Property under the definition thereof after the Closing Date) the Borrower shall cause, within the latest of (x) 90 days of such acquisition and (y) a later date to which the Administrative Agent agrees, cause the Borrower or such Restricted Subsidiary to deliver (A) executed counterparts of one or more Mortgages on such Material Real Property in a form appropriate for recording in the applicable recording office, (B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Building located on such Material Real Property and constituting Collateral and, if any such Building is located in special flood hazard area, (1) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and (2) evidence of applicable flood insurance as required by Section 6.07(b)(i) if such

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Material Real Property constitutes Collateral, (C) legal opinions from counsel in such jurisdiction as the Material Real Property is located, each in form and substance reasonably satisfactory to Administrative Agent or the Collateral Agent, (D) to the extent required by the Administrative Agent, evidence of the filing of as-extracted UCC-1 financing statements in the appropriate jurisdiction and (E) payment by the Borrower of all mortgage recording taxes and related charges required for the recording of such Mortgages unless, in the judgment of the Administrative Agent, delivery of such materials is unnecessary to ensure the Secured Parties benefit from a perfected First Priority security interest (subject to Permitted Real Estate Encumbrances) in such Material Real Property in favor of the Collateral Agent and such flood insurance (it is understood that in lieu of any new Mortgage, mortgage supplements or any other security documents may be delivered if reasonably acceptable to the Administrative Agent).
(ii)      Consents Related to Leaseholds Concerning Material Real Property . With respect to any leasehold interest of the Borrower or any of its Restricted Subsidiary that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Borrower or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for no more than (x) the 90 days following such acquisition and (y) 150 days following the Closing Date, provided that nothing herein shall be construed as requiring the Borrower or any Restricted Subsidiary to pay any sums to the applicable lessor other than immaterial or incidental fees and expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Borrower set forth in this Section 6.16(b)(ii) , any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Borrower and its Restricted Subsidiaries shall no longer be required to use commercially reasonable efforts to obtain any such consent after the above-mentioned time periods).
(c)      Personal Property (including IP) Acquired by Borrower or Guarantors . Within 30 days of the date that the financial statements referred to in Section 6.01(a) and (b) are required to be delivered (or a later date to which the Administrative Agent agrees), shall, in the case of the Borrower, or cause any such Restricted Subsidiary otherwise, (i) to the extent that any Capital Stock in, or owned by, a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver stock certificates, if any, representing such Capital Stock accompanied by undated stock powers or instruments of transfer executed in blank to the Collateral Agent and execute and deliver to the Collateral Agent supplements to the Security Agreement or such other document as the Administrative Agent shall reasonably deem appropriate to pledge any such Capital Stock, (ii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent and (iii) to the extent that a Lien on any asset of a Loan Party is required to be perfected pursuant to the Security Agreement but has not been perfected, take such additional actions as may be required pursuant to the Security Agreement in order to perfect the Lien of the Collateral Agent on such asset.
(d)      Further Assurances . Subject to any applicable limitation in any Security Documents, upon request of the Administrative Agent, at the expense of the Borrower, promptly execute and deliver any and all further instruments and documents and take all such other action

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as the Administrative Agent may reasonably deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, the Security Documents, including the filing of financing statements necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to perfect any security interests created under the Security Documents.
(e)      Collateral Principles . Notwithstanding anything to the contrary in any Loan Document, (i) the Administrative Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or taking other actions with respect to, particular assets where it reasonably determines in consultation with the Borrower, that the creation or perfection of security interests and Mortgages on, or taking other actions, cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Security Documents and (ii) any Liens required to be granted from time to time pursuant to Security Documents and this Agreement on assets of the Loan Parties to secure to the Secured Obligations shall exclude the Excluded Assets.
(f)      Junior Lien Indebtedness Guarantees and Collateral . Without limitation of (and subject to) any provision in any Intercreditor Agreement, if the Junior Collateral Trustee or any holder of Junior Lien Indebtedness receives any additional guaranty or any additional collateral in connection with the Junior Lien Indebtedness after the Closing Date, without limitation of any Event of Default that may arise as a result thereof, the Loan Parties shall, concurrently therewith, cause the same to be granted to the Administrative Agent or the Collateral Agent, as applicable, for its own benefit and the benefit of the Secured Parties.
6.17      Maintenance of Ratings . Use commercially reasonable efforts to maintain (i) a public corporate family rating issued by Moody’s and a public corporate credit rating issued by S&P and (ii) a public credit rating from each of Moody’s and S&P with respect to the Term Loans.
6.18      Information Regarding Collateral .    Concurrently with the delivery of the financial statements referred to in Section 6.01(a) , deliver to the Administrative Agent and the Collateral Agent a supplement to the Collateral Questionnaire to the extent necessary to correctly reflect the information set forth therein as of such date.
6.19      Senior Debt .    Cause the Term Loan Facility to at all times be considered “Senior Debt”, as defined in any Intercreditor Agreement, for purposes of such Intercreditor Agreement.
6.20      Post-Closing Covenants .    Cause to be delivered or performed the documents and other agreements and actions set forth on Schedule 6.20 within the time frame specified on such Schedule 6.20 .
ARTICLE VII.
NEGATIVE COVENANTS
Until Payment in Full, the Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:

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7.01      Liens . Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)      Liens pursuant to any Loan Document (including Liens securing any Incremental Facility or Refinancing Facility governed by this Agreement);
(b)      Liens existing on the date hereof and (other than any individual Lien that secures obligations of less than $2,000,000) set forth on Schedule 7.01 and any renewals, extensions, modifications, restatements or replacements thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except with respect to any Permitted Refinancing Increase and (iii) any renewal, extension, modification, restatement or replacement of the obligations secured or benefited thereby is permitted by Section 7.03 ;
(c)      Liens for taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d)      landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings;
(e)      pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and employee health and disability benefit legislations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f)      (i) Liens (including deposits) to secure the performance of bids, trade contracts and leases (other than Indebtedness), reclamation bonds, insurance bonds, statutory obligations, surety and appeal bonds, performance bonds, bank guarantees and letters of credit and other obligations of a like nature incurred in the ordinary course of business, (ii) Liens on assets to secure obligations under surety bonds obtained as required in connection with the entering into of federal coal leases or (iii) Liens created under or by any turnover trust;
(g)      easements, rights-of-way, zoning restrictions, other restrictions, covenants and other non-monetary encumbrances which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h)      Liens securing attachments or judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or surety bonds related to such attachments or judgments;
(i)      Liens securing Indebtedness of the Borrower and its Restricted Subsidiaries permitted by Section 7.03(l) ; provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, any other property which may be incorporated with or into that financed property or any after-acquired title in or on such property and proceeds of the existing collateral in accordance with the instrument creating such

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Lien, including replacement parts, accessories or enhancements that are affixed to any leased goods and other property financed by the same Person (i.e., cross-collateralization of such property) and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original purchase price of such property at the time it was acquired (it being understood that Liens of the type described in this subsection (i) incurred by a Restricted Subsidiary before such time as it became a Restricted Subsidiary are permitted under this subsection (i) )
(j)      Liens on property or assets acquired in a transaction permitted by Section 7.02 or of a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such Liens existed at the time such property or assets were acquired or such entity became a Subsidiary and were not created in anticipation thereof, (ii) such Liens do not extend to any other property or assets of such Person (other than the proceeds of the property or assets initially subject to such Lien) or of the Borrower or any Restricted Subsidiary and (iii) the amount of Indebtedness secured thereby is not increased;
(k)      Liens on the property of the Borrower or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord;
(l)      Liens (including those arising from precautionary UCC financing statement filings and those which are security interests for purposes of the Personal Property Securities Act of 2009 (Cth)) with respect to bailments, operating leases or consignment or retention of title arrangements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(m)      Liens securing Indebtedness permitted under Section 7.03(c) , to the extent that the Indebtedness being refinanced was originally secured in accordance with this Section 7.01 , provided that such Lien does not apply to any additional property or assets of the Borrower or any Restricted Subsidiary (other than property or assets within the scope of the original granting clause or the proceeds of the property or assets subject to such Lien);
(n)      Liens securing Indebtedness or other obligations of a non-Guarantor Restricted Subsidiary to the Borrower or a Guarantor;
(o)      leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose;
(p)      (i) Liens in favor of a banking institution arising by operation of law or any contract encumbering deposits (including the right of set-off) held by such banking institutions incurred in the ordinary course of business and which are within the general parameters customary in the banking industry or (ii) contractual rights of setoff to the extent constituting Liens;

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(q)      Liens on Capital Stock of any Unrestricted Subsidiary, solely to the extent such Capital Stock does not constitute Collateral;
(r)      Liens in favor of an escrow agent arising under an escrow arrangement incurred in connection with the issuance of notes with respect to the proceeds of such notes and anticipated interest expenses with respect to such notes;
(s)      Permitted Real Estate Encumbrances and Liens on Excluded Assets;
(t)      other Liens securing Indebtedness or obligations of the Loan Parties in an aggregate amount at any time outstanding not to exceed $40,000,000;
(u)      subject to an ABL Intercreditor Agreement, Liens on Collateral securing any ABL Facility;
(v)      (x) Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties or (y) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture, in each case, consistent with normal practices in the mining industry;
(w)      Liens under ERISA or the Code with respect to a Plan that does not constitute an Event of Default under Section 8.01(i) ;
(x)      Liens on insurance policies and the proceeds thereof securing the financing of insurance premiums with respect thereto;
(y)      rights of first refusal and rights of first offer in respect of transfers of Equity Interests in Joint Ventures to the extent such rights constitute Liens;
(z)      Liens granted under the Loan and Aircraft Security Agreement (S/N 560- 5802), dated as of July 26, 2016, among Bank of Utah, not in its individual capacity, but solely as owner trustee, as the borrower, Contura Energy Services, LLC, as the operator and Citizens Asset Finance, Inc., as the lender;
(aa)      Residual Mechanic's Liens and Residual Property Tax Liens; and
(bb)      Liens in connection with the escrow of funds in connection with the Refinancing in order to defease the Existing Senior Notes, and Liens securing Indebtedness under Section 7.03(w) .  
7.02      Investments . Make any Investments, except:
(a)      Investments held by the Borrower or such Restricted Subsidiary in the form of cash or Cash Equivalents;

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(b)      advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(c)      Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(d)      Investments (including debt obligations and Capital Stock) received in satisfaction of judgments or in connection with the bankruptcy or reorganization of suppliers and customers of the Borrower and its Restricted Subsidiaries and in settlement of delinquent obligations of, and other disputes with, such customers and suppliers arising in the ordinary course of business;
(e)      (i) Investments in the nature of Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties, (ii) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture or (iii) payments or other arrangements whereby the Borrower or a Restricted Subsidiary provides a loan, advance payment or guarantee in return for future coal deliveries, in each case consistent with normal practices in the mining industry;
(f)      Investments in existence on the Closing Date and (other than individual Investments the amount of which is less than $2,000,000) listed on Schedule 7.02 and extensions, renewals, modifications, restatements or replacements thereof; provided that no such extension, renewal, modification, restatement or replacement shall increase the amount of such Investment except, in the case of a loan, by an amount equal to any Permitted Refinancing Increase;
(g)      (i) promissory notes and other similar non-cash consideration received by the Borrower and its Subsidiaries in connection with Dispositions not otherwise prohibited under this Agreement and (ii) Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower and its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, (B) litigation, arbitration or other disputes or (C) the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(h)      Investments in any assets constituting a business unit received by the Borrower or its Subsidiaries by virtue of a Permitted Asset Swap;
(i)      Hedging Agreements or Cash Management Obligations;
(j)      Investments by the Borrower or any Restricted Subsidiary in Restricted Subsidiaries, and Investments by any Restricted Subsidiary in the Borrower; provided that Investments in Restricted Subsidiaries that are not Loan Parties, when aggregated with Indebtedness of a non-Loan Party owing to a Loan Party pursuant to Section 7.03(f) (other than

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Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Loan Party to a Loan Party pursuant to Section 7.03(f) , shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets;
(k)      Investments by the Borrower or any Restricted Subsidiary in Unrestricted Subsidiaries, non-wholly owned Subsidiaries and Joint Ventures in an aggregate amount not to exceed the greater of $100,000,000 and 20% of Consolidated Net Tangible Assets;
(l)      additional Investments by the Borrower or any Restricted Subsidiary (i) in an aggregate amount not to exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets plus (ii) so long as no Event of Default is continuing immediately prior to making such Investment or would result therefrom, an amount equal to the Available Amount;
(m)      Permitted Acquisitions;
(n)      Investments acquired as a capital contribution to the Borrower, or made in exchange for, or out of the net cash proceeds of, a substantially concurrent offering of Qualified Equity Interests of the Borrower;
(o)      (i) receivables owing to the Borrower or any Restricted Subsidiary if created or acquired in the ordinary course of business, (ii) endorsements for collection or deposit in the ordinary course of business and (iii) securities, instruments or other obligations received in compromise or settlement of debts created in the ordinary course of business, or by reason of a composition or readjustment of debts or reorganization of another Person, or in satisfaction of claims or judgments;
(p)      Investments made pursuant to surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds and related letters of credit or similar obligations, in each case, to the extent such surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds, related letters of credit and similar obligations are permitted under this Agreement;
(q)      Investments consisting of indemnification obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees and similar obligations under any Mining Law or Environmental Law or with respect to workers’ compensation benefits, in each case entered into in the ordinary course of business, and pledges or deposits made in the ordinary course of business in support of obligations under existing coal sales contracts (and extensions or renewals thereof on similar terms);
(r)      Investments made by the Borrower in the form of loans pursuant to the Contingent Credit Support Agreement;
(s)      to the extent constituting an Investment, any Guarantee of or the repurchase, repayment, defeasance or retirement of any Indebtedness of the Borrower or any Subsidiary to the extent such Guarantee, repurchase, prepayment or retirement is expressly permitted hereunder;
(t)    Investments by any Loan Party in the Owner Trust;

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(u)    Investments made pursuant to the Reclamation Funding Agreement and all required payments made thereunder; and
(v)    Investments in any Joint Venture in which the Borrower or a Restricted Subsidiary holds or will hold Equity Interests comprised of any combination of the following: (i) any assets or rights owned or held by one or more of the PRB Subsidiaries or (ii) issuances of Equity Interests by any PRB Subsidiary in order to form or develop such Joint Venture; provided , that any such transaction constituting a Disposition shall comply with Section 7.05(i) .
7.03      Indebtedness . Create, incur, assume or suffer to exist any Indebtedness except:
(a)      Indebtedness arising under the Loan Documents (including any Incremental Facility or Refinancing Facility);
(b)      Indebtedness outstanding on the date hereof and (other than any individual obligation with respect to such Indebtedness that is less than $2,000,000) listed on Schedule 7.03 ;
(c)      any Permitted Refinancing Indebtedness of Indebtedness permitted under Section 7.03(b) or of Indebtedness subsequently incurred under this Section 7.03(c) ;
(d)      Guarantees by the Borrower or any Restricted Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrower or any Restricted Subsidiary;
(e)      Indebtedness in respect of (i) Cash Management Obligations incurred in the ordinary course of business and (ii) Hedging Agreements incurred in the ordinary course of business and not for speculative purposes;
(f)      (i) Indebtedness of the Borrower and any Restricted Subsidiary owing to any Restricted Subsidiary and of any Restricted Subsidiary owing to the Borrower and (ii) Disqualified Equity Interests of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided that, (a) any such Indebtedness extended by a non-Loan Party to a Loan Party must be subordinated to the Secured Obligations on customary terms and (b) Indebtedness of a non-Loan Party owing to a Loan Party pursuant to this Section 7.03(f) and any Disqualified Equity Interests of a non-Loan Party issued to a Loan Party, together with Investments in non-Loan Parties made pursuant to Section 7.02(j) , shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets; provided further, that notwithstanding the foregoing, any Indebtedness extended by any Loan Party to any non-Loan Party shall be permitted (and shall not be subject to the cap in the immediately preceding proviso) so long as such Indebtedness is evidenced by a promissory note, in form and substance reasonably satisfactory to the Administrative Agent, and such promissory note shall be pledged to the Collateral Agent as Collateral;
(g)      Guarantees by the Borrower or any Restricted Subsidiary of borrowings by current or former officers, managers, directors, employees or consultants in connection with the purchase of Equity Interests of the Borrower by any such person in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding;

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(h)      Subject to an ABL Intercreditor Agreement, Indebtedness incurred in connection with any ABL Facility in an aggregate principal amount not to exceed the greater of $125,000,000 and 25% of Consolidated Net Tangible Assets;
(i)      Indebtedness incurred or assumed in connection with Permitted Acquisitions and other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or all of the Capital Stock of another Person; provided that, after giving effect to the incurrence thereof on a Pro Forma Basis, (i) if such Indebtedness is (or is intended to be) secured by the Collateral on a pari passu basis, the First Lien Leverage Ratio is equal to or less than 2.00 to 1.00 and (ii) if such Indebtedness is secured by the Collateral on a junior-lien basis or unsecured, the Total Leverage Ratio is equal to or less than 3.00 to 1.00; provided that Indebtedness incurred by any non-Loan Party pursuant to this Section 7.03(i) shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets;
(j)      Indebtedness incurred or assumed in connection with permitted Investments made pursuant to Section 7.02(m) ;
(k)      Indebtedness of non-Loan Party Restricted Subsidiaries in an aggregate amount not to exceed $40,000,000;
(l)      Indebtedness consisting of Capital Lease Obligations not to exceed $50,000,000 in the aggregate at any time outstanding;
(m)      additional Indebtedness of the Loan Parties in an amount not to exceed the greater of $75,000,000 and 15% of Consolidated Net Tangible Assets in the aggregate at any time outstanding;
(n)      Indebtedness of the Borrower or any Restricted Subsidiary in connection with one or more standby or trade-related letters of credit, performance bonds, bid bonds, appeal bonds, bankers acceptances, insurance obligations, reclamation obligations, bank guarantees, surety bonds, completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Borrower or a Restricted Subsidiary, in each case, in the ordinary course of business or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances;
(o)      Indebtedness arising from agreements of the Borrower or any Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or any Subsidiary;
(p)      Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(q)      Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply or other arrangements;

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(r)      any transaction permitted under Section 7.12 ;
(s)      Indebtedness under the Loan and Aircraft Security Agreement (S/N 560- 5802), dated as of July 26, 2016, among Bank of Utah, not in its individual capacity, but solely as owner trustee, as the borrower, Contura Energy Services, LLC, as the operator and Citizens Asset Finance, Inc., as the lender;  
(t)      Indebtedness (the “ UMWA Note ”) incurred pursuant to (A) the contingent seven-year 5.0% note in an aggregate principal amount of $8.75 million to be issued to the UMWA on August 1, 2017, if, prior to such date, federal legislation providing retirement health benefits to the UMWA retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, and (B) the contingent seven-year 5.0% note in an aggregate principal amount of $8.75 million to be issued to the UMWA on December 1, 2017, if, prior to such date, federal legislation providing retirement health benefits to the UMWA retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, in each case pursuant to that certain agreement to fund the VEBA between the Company and UMWA;  
(u)      Indebtedness incurred pursuant to the GUC Distribution Note in an amount not to exceed $5.5 million;  
(v)      Indebtedness under the Reclamation Funding Agreement and all required payments made thereunder; and
(w)      Indebtedness deemed to be outstanding under the Existing Senior Notes, which Indebtedness shall only be deemed permitted if the deposit of cash with the Existing Notes Trustee in accordance with the Existing Senior Notes Indenture, in connection with an irrevocable notice of repurchase or redemption in full issued on or before the Closing Date for repurchase or redemption to occur within 30 days as set forth in the Existing Senior Notes Indenture, has occurred on or prior the Closing Date and the Existing Senior Notes have, in fact, been repaid in full within 30 days after the Closing Date.
7.04      Fundamental Changes . Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, if no Default exists or would immediately result therefrom:
(a)      any Subsidiary may merge or consolidate with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person or (ii) any one or more other Subsidiaries, provided that (A) when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, (B) when any Restricted Subsidiary is merging with any other Subsidiary, the continuing or surviving Person (unless such surviving Person could otherwise be designated an Unrestricted Subsidiary hereunder) shall be a Restricted Subsidiary, (C) when any Foreign Subsidiary is merging with any Domestic Subsidiary, the continuing or surviving Person shall be the Domestic Subsidiary and (D) when

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any Guarantor is merging with any other Subsidiary, the continuing or surviving Person shall be a Guarantor;
(b)      any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that (i) if the transferor in such a transaction is a Restricted Subsidiary, then the transferee must either be the Borrower or another Restricted Subsidiary (unless such Disposition would otherwise be permitted as an Investment in an Unrestricted Subsidiary), (ii) if the transferor is a Domestic Subsidiary, then the transferee must either be the Borrower or another Domestic Subsidiary and (iii) if the transferor is a Guarantor, then the transferee must either be the Borrower or another Guarantor;
(c)      the Borrower and any Restricted Subsidiary may merge or consolidate with any other Person in a transaction (including any Permitted Acquisition) in which the Borrower or the Restricted Subsidiary, as applicable, is the surviving or continuing Person; provided that, (i) the Borrower may not merge or consolidate with a Restricted Subsidiary unless the Borrower is the surviving or continuing Person and (ii) such merger or consolidation is permitted under Section 7.02(m) hereof; and
(d)      any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and not materially disadvantageous to the Lenders and the assets, if any, of any Restricted Subsidiary so liquidated or dissolved are transferred (x) to another Restricted Subsidiary or the Borrower and (y) to a Guarantor or the Borrower if such liquidated or dissolved Restricted Subsidiary is a Guarantor.
7.05      Dispositions . Make any Disposition (other than Dispositions permitted pursuant to Sections 7.01 , 7.04 and 7.06 ), except:
(a)      Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is no longer useful in its business (but excluding any real property);
(b)      Dispositions of inventory, equipment or accounts receivable in the ordinary course of business;
(c)      Dispositions of cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02 ) or otherwise in the ordinary course of business;
(d)      (A) Dispositions of defaulted receivables in the ordinary course of business and (B) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceeding;
(e)      licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary in the ordinary course of business or lapse or abandonment of intellectual property rights in the

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ordinary course of business that, in the reasonable judgment of the Borrower, is no longer useful in its business;
(f)      Permitted Asset Swaps;
(g)      (A) the grant in the ordinary course of business of any non-exclusive easements, permits, licenses, rights of way, surface leases or other surface rights or interests and (B) any lease, sublease or license of assets (with a Loan Party as the lessor, sublessor or licensor) in the ordinary course of business;
(h)      (i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies or (ii) transfers of properties to the extent that such property has been subject to a casualty event for which the Loan Parties or a creditor with a Lien on such property that is permitted hereunder have received (or have not been denied) insurance proceeds or condemnation awards;
(i)      other Dispositions, if (i) the Net Proceeds therefrom are applied in accordance with Section 2.03(b) and (ii) immediately after giving effect to such Disposition, (A) no Event of Default has occurred and is continuing, (B) the consideration received for such Disposition shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Borrower in good faith, and (C) at least 75% of the consideration for such Dispositions undertaken pursuant to this Section 7.05(i) shall be paid in cash or Cash Equivalents, provided that, solely for purposes of this provision, each of the following shall be deemed to be cash:
(1)      any securities, notes, other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(2)      any reclamation, employment related or any other liabilities of the Borrower or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and as a result of which the Borrower or such Restricted Subsidiary is released from further liability; and
(3)      any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such Disposition; provided that (1) the aggregate fair market value of such Designated Non-Cash Consideration, as reasonably determined by the Borrower in good faith, taken together with the fair market value at the time of receipt of all other Designated Non-Cash Consideration received pursuant to this clause (3) minus (2) the amount of Net Proceeds previously realized in cash from prior Designated Non-Cash Consideration shall not exceed $10,000,000;
(j)      any Investment permitted pursuant to Sections 7.02(j) , 7.02(k) or 7.02(l) , which constitutes a Disposition so long as the Net Proceeds therefrom are applied, to the extent required, in accordance with Section 2.03(b) ;
(k)      Dispositions of Excluded Assets and other Dispositions that do not constitute Asset Sales;

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(l)      to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any like kind exchange of property for use in a Similar Business;
(m)      (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of business or (ii) any settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any present or former directors, officers, or employees of the Borrower or` any Restricted Subsidiary or any of their successors or assigns;
(n)      the unwinding or termination of any Hedging Obligations; and
(o)    the sale of assets by the Borrower and its Restricted Subsidiaries consisting of real property solely to the extent that (i) such Real Property is not necessary for the normal conduct of operations of the Borrower and its Restricted Subsidiaries and (ii) the Net Proceeds therefrom are applied in accordance with Section 2.03(b) .
To the extent the Required Lenders waive the provisions of this Section 7.05 with respect to the Disposition of any property or any property is Disposed of as permitted by this Section 7.05 , such property (unless sold, transferred or otherwise disposed of to a Loan Party) shall be Disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and/or the Collateral Agent shall take all actions reasonably requested by the Borrower to effect the foregoing as set forth in Section 10.19(b) .
7.06      Restricted Payments . Declare or make, directly or indirectly, any Restricted Payment except that:
(a)      each Subsidiary may make Restricted Payments to the Borrower, the Subsidiaries and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made or as otherwise required pursuant to its Organizational Documents;
(b)      the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other Equity Interests of such Person or another Subsidiary;
(c)      the Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of new shares of common stock or other Qualified Equity Interests of the Borrower;
(d)      the Borrower or any of its Subsidiaries may purchase (i) Equity Interests issued by any Loan Party or options with respect thereto held by directors, officers or employees of the Borrower or any Restricted Subsidiary (or their estates or authorized representatives) in connection with (A) the death, disability or termination of employment of any such director, officer or employee or (B) any benefit, incentive or equity compensation plans to provide funds for the payment of any Tax or other amounts owing by such directors, officers or employees upon vesting or exercise or settlement of the Equity Interests or options provided under such plans; and (ii) Equity Interests issued by any Loan Party for future issuance under any benefit, incentive or equity compensation plan; provided, that (a) no Event of Default has occurred and is

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continuing at the time of such purchase and (b) for both clauses (i) and (ii), the aggregate cash consideration paid therefor in any twelve-month period after the Closing Date shall not exceed $15,000,000 in the aggregate;
(e)      so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Subsidiaries may make Restricted Payments in an amount not to exceed (i) $20,000,000 plus (ii) the Available Amount; provided that, in the case of clause (ii), the First Lien Leverage Ratio (calculated on a Pro Forma Basis) shall be less than or equal to (A) with respect to any such calculation in respect of a four consecutive quarter period ended on or before December 31, 2017, 1:00:1.00 after giving effect to such Restricted Payment, (B) with respect to any such calculation in respect of a four consecutive quarter period ended after December 31, 2017 and on or before December 31, 2018, 1.25:1.00 after giving effect to such Restricted Payment and (C) with respect to any other such calculation, 1.50:1.00 after giving effect to such Restricted Payment;
(f)      the Borrower may make regularly scheduled payments of principal or interest on any unsecured Indebtedness for borrowed money and any Junior Lien Indebtedness;
(g)      the prepayment, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of unsecured Indebtedness for borrowed money, any Subordinated Indebtedness or any Junior Lien Indebtedness (A) with the net cash proceeds of, or in exchange for, Permitted Refinancing Indebtedness or (B) in exchange for, or out of the proceeds of, a substantially concurrent issue of new shares of common stock or other Qualified Equity Interests of the Borrower;
(h)      the prepayment, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of, to the extent constituting Indebtedness for borrowed money, (i) unsecured Indebtedness incurred pursuant to Sections 7.03(t) , (u) and (v) , (ii) VEBA contributions for non-union retirees in an amount not to exceed $7,000,000 in the aggregate for all such Restricted Payments made pursuant to this Section 7.06(h)(ii) and (iii) other unsecured Indebtedness for borrowed money in an amount not to exceed $5,000,000 in the aggregate for all such Restricted Payments made pursuant to this Section 7.06(h)(iii) ;
(i)      the Borrower may make payments in respect of any Subordinated Indebtedness in accordance with the terms thereof and only to the extent permitted by and subject to the subordination provisions contained therein;
(j)      cash payments in lieu of fractional shares upon exercise of options or warrants or conversion or exchange of convertible securities, repurchases of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such securities represent a portion of the exercise price of such options, warrants or other convertible securities and repurchases of Equity Interests in connection with the withholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the Taxes payable by such director or employee upon such grant or award;
(k)      the Borrower may make Restricted Payments owed upon the exercise of warrants issued by the Borrower;  

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(l)      payments made pursuant to the Reclamation Funding Agreement; and
(m)      notwithstanding the foregoing, if the Borrower declares a dividend or distribution pursuant to any of the foregoing clauses (a) through (k) , the Borrower can pay any such dividend or distribution within 30 days after the date of declaration thereof.
7.07      Accounting Changes; Change in Nature of Business; Foreign Operations . Change the Borrower’s or Restricted Subsidiaries’ accounting and financial reporting practices as in effect as of the Closing Date in any material respect, except for any changes made in accordance with GAAP, without the prior written consent of the Administrative Agent or engage in any material line of business other than a Similar Business or hold a material portion of its Property that would otherwise be required pursuant to the Loan Documents to become subject to a fully perfected Lien in favor of the Collateral Agent in a foreign jurisdiction.
7.08      Transactions with Affiliates . Enter into, renew or extend any transaction or arrangement, including, without limitation, any purchase, sale, lease or exchange of property or assets or the rendering of any service, with any Affiliate of the Borrower or any Restricted Subsidiary (a “ Related Party Transaction ”) involving an aggregate consideration in excess of $10,000,000, unless the Related Party Transaction is (a) not otherwise prohibited by any ABL Facility, and (b) on fair and reasonable terms that are not materially less favorable (as reasonably determined by the Borrower) to the Borrower or any of the relevant Restricted Subsidiaries than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower; provided that (i) any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $20,000,000 must first be approved by a majority of the board of directors of the Borrower who are disinterested in the subject matter of the transaction pursuant to a resolution by the board of directors of the Borrower and (ii) with respect to any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $35,000,000, the Borrower must deliver to the trustee an opinion from an accounting, appraisal, or investment banking firm of national standing in the applicable jurisdiction (x) stating that its terms are not materially less favorable to the Borrower or any of the relevant Restricted Subsidiaries that would have been obtained in a comparable transaction with an unrelated Person or (ii) as to the fairness to the Borrower or any of the relevant Restricted Subsidiaries of such Related Party Transaction from a financial point of view Borrower. Notwithstanding the foregoing, the restrictions contained in this Section 7.08 shall not apply to the following transactions or arrangements:
(A)      transactions between or among the Borrower and any of its Loan Parties or between and among any Loan Parties;
(B)      the payment of reasonable and customary fees and reimbursement of expenses payable to directors of the Borrower or any of its Restricted Subsidiaries or to any Plan, Plan administrator or Plan trustee;
(C)      loans and advances to directors, officers and employees to the extent permitted by Section 7.02 ;

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(D)      the arrangements with respect to the procurement of services of directors, officers, independent contractors, consultants or employees in the ordinary course of business and the payment of customary compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and reasonable reimbursement arrangements in connection therewith;
(E)      payments to directors and officers of the Borrower and its Restricted Subsidiaries in respect of the indemnification of such Persons in such respective capacities from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, as the case may be, pursuant to the Organizational Documents or other corporate action of the Borrower or its Restricted Subsidiaries, respectively, or pursuant to applicable law;
(F)      intercompany Investments permitted pursuant to Section 7.02(j) and intercompany Indebtedness and issuances of Disqualified Equity Interests, in each case, permitted pursuant to Section 7.03(f) ;
(G)      Restricted Payments permitted by Section 7.06 ;
(H)      transactions arising under any contract, agreement, instrument or other arrangement in effect on the Closing Date and set forth on Schedule 7.08 , as amended, modified or replaced form time to time so long as the amended, modified or new arrangements, taken as a whole at the time such arrangements are entered into, are not materially less favorable to the Borrower and its Restricted Subsidiaries than those in effect on the Closing Date; and
(I)      any transactions with DTA.
7.09      Use of Proceeds . Use the proceeds of any Borrowing, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.10      Burdensome Agreements . Enter into any Contractual Obligation that (x) limits the ability of the Borrower or any Guarantor to create, incur, assume or suffer to exist any Lien upon any of its property to secure the Obligations hereunder or (y) limits the ability of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any Guarantor; provided , however , that the foregoing clause shall not apply to Contractual Obligations which:
(a)      solely in the case of clause (y) of this Section 7.10 , exist on the date hereof and (to the extent not otherwise permitted by this Section 7.10 ) are listed on Schedule 7.10 ;
(b)      are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower;

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(c)      arise in connection with covenants in documents creating Liens permitted by Section 7.01 prohibiting further Liens on the properties encumbered thereby;
(d)      arise in connection with any ABL Facility permitted by Section 7.03(h) or any Subordinated Indebtedness permitted by Section 7.03 ;
(e)      arise in connection with any Disposition permitted by Section 7.05 solely with respect to the assets that are the subject of such Disposition;
(f)      are customary provisions in Joint Venture agreements and other similar agreements applicable solely to such Joint Venture or the Equity Interests therein;
(g)      are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;
(h)      are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or any Restricted Subsidiary;
(i)      are customary limitations (including financial maintenance covenants) existing under or by reason of leases entered into in the ordinary course of business;
(j)      are restrictions on cash or other deposits imposed under contracts entered into in the ordinary course of business;
(k)      are customary provisions restricting assignment of any agreements;
(l)      arise in connection with any Contractual Obligations that relate to the Excluded Assets;
(m)      arise in connection with applicable law, rule, regulation, order, approval, license, permit or similar restriction (whether or not existing on the Closing Date) or are mandated by any Governmental Authority;
(n)      customary provisions in Hedging Obligations; or
(o)      are set forth in any agreement evidencing an amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the Contractual Obligations referred to in clauses (a) through (n) above; provided , that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, not materially less favorable to the Loan Party with respect to such limitations than those applicable pursuant to such Contractual Obligations prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
7.11      Fiscal Year . Change its fiscal year-end from December 31.
7.12      Sale and Lease-Backs . Become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or

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mixed), whether now owned or hereafter acquired, which the Borrower or such Restricted Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries), to the extent involving the sale of assets with a fair market value in excess of $70,000,000 in the aggregate and (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection with such lease.
7.13      Amendments or Waivers to Certain Agreements . Agree to any amendment, restatement, supplement or other modification to, or waiver of, (a) any of its Organizational Documents or (b) any document governing Subordinated Indebtedness, after the Closing Date, in each case, to the extent the same would reasonably be expected to be materially adverse to any Secured Party (in the good faith determination of the Borrower), without obtaining the prior written consent of Required Lenders to such amendment, restatement, supplement or other modification or waiver.
7.14      No Further Negative Pledge . Enter into any agreement, instrument, deed or lease which prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its properties or revenues, whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation, except the following: (a) this Agreement, the ABL Credit Documents and the other Loan Documents; (b) covenants in documents creating Liens permitted by Section 7.01 prohibiting further Liens on the properties encumbered thereby; and (c) any prohibition or limitation that (i) exists pursuant to applicable Laws, (ii) consists of customary restrictions and conditions contained in any agreement relating to the sale of any property pending the consummation of such sale; provided that (1) such restrictions apply only to the property to be sold and such sale is permitted hereunder, and (2) such sale is permitted hereunder, (iii) restricts subletting or assignment of any lease governing a leasehold interest of Borrower or one of its Subsidiaries, or (iv) is a restriction on Liens otherwise permitted by the terms of Section 7.10 of this Agreement.
7.15      Anti-Corruption; Sanctions; Terrorism Laws .    (a)    Directly or indirectly, (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person subject to any Sanctions, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the PATRIOT Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, any Sanctions Laws or any Anti-Corruption Laws or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the PATRIOT Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, any Sanctions Laws or any Anti-Corruption Laws.

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(b)      Cause or permit any of the funds of such Loan Party that are used to repay the Loans to be derived from any unlawful activity with the result that the making of the Loans would be in violation of Laws.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01      Events of Default . Any of the following shall constitute an Event of Default:
(a)      Non-Payment . The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within five Business Days after the same becomes due, any interest on any Loan, or any fee due hereunder, any other amount payable hereunder or under any other Loan Document; or
(b)      Specific Covenants . The Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01(a), 6.01(b), 6.02(a), 6.03(a) , 6.05 , 6.11 , 6.20 or Article VII ; or
(c)      Other Defaults . Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier of (i) written notice from the Administrative Agent to the Borrower or (ii) knowledge of a Responsible Officer of the Borrower; or
(d)      Representations and Warranties . Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)      Cross-Default . The Borrower or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder) in each case having an aggregate principal amount of more than the Threshold Amount, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee was created, (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable, or (C) fails to observe or perform any agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, as a result of which default or other event, the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on

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behalf of such holder or holders or beneficiary or beneficiaries) shall have caused, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable; or
(f)      Insolvency Proceedings, Etc. Subject to Section 8.03 , any Loan Party or any of its Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any substantial part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any substantial part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g)      Inability to Pay Debts; Attachment . Subject to Section 8.03 , (i) the Borrower or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any substantial part of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue or levy; or
(h)      Judgments . There is entered against the Borrower or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third party insurance), and such judgments or orders shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i)      ERISA . The occurrence of any of the following events that would reasonably be expected to result in a Material Adverse Effect: (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in an actual obligation to pay money of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or
(j)      Invalidity of Material Loan Documents . Any material Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or Payment In Full, ceases to be in full force and effect; or any Loan Party contests the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any Security Document ceases to create a valid Lien on a material portion of the Collateral (other than as expressly permitted thereunder or solely as a result of the acts or omissions of the Administrative Agent or Collateral Agent (including failure to maintain possession of any stock certificates, or other instruments delivered to it under any Security Document)); or

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(k)      Change of Control . There occurs any Change of Control; or
(l)      Subordinated Indebtedness . Any Subordinated Indebtedness or any Junior Lien Indebtedness permitted hereunder or the guarantees thereof or, in the case of Junior Lien Indebtedness, the Liens securing such Junior Lien Indebtedness, shall cease, for any reason, to be validly subordinated to the Obligations of the Loan Parties hereunder, as provided in any Intercreditor Agreement or the indenture governing such Subordinated Indebtedness or Junior Lien Indebtedness, or any Loan Party, any Affiliate of any Loan Party, the trustee in respect of Subordinated Indebtedness or Junior Lien Indebtedness or the holders of at least 25% in aggregate principal amount of Subordinated Indebtedness or Junior Lien Indebtedness shall so assert.
8.02      Remedies Upon Event of Default . If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a)      declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated;
(b)      declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and
(c)      exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;
provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under Debtor Relief Laws of the United States or any other Event of Default under Section 8.01(f) or (g) hereof, the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender.
8.03      Exclusion of Immaterial Subsidiaries . Solely for the purposes of determining whether an Event of Default has occurred under clause (f) or (g) of Section 8.01 , any reference in any such clause to any Restricted Subsidiary shall be deemed not to include any Restricted Subsidiary affected by any event or circumstance referred to in any such clause that did not, as of the last day of the fiscal quarter of the Borrower most recently ended, have assets with a value in excess of 5% of the Tangible Assets or 5% of consolidated total revenues, in each case, of the Borrower and the Restricted Subsidiaries as of such date; provided that if it is necessary to exclude more than one Restricted Subsidiary from clause (f) or (g) of Section 8.01 pursuant to this Section 8.03 in order to avoid an Event of Default thereunder, all excluded Restricted Subsidiaries shall be considered to be a single consolidated Restricted Subsidiary for purposes of determining whether the condition specified above is satisfied.
8.04      Application of Funds . Subject to any Intercreditor Agreement, after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become

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immediately due and payable), any amounts received on account of the Secured Obligations (including proceeds of Collateral) shall be applied by the Administrative Agent in the following order:
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;
Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders and amounts payable under Article III ), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third , to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;
Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans and to payment of the unpaid Secured Hedging Obligations, ratably among the Hedge Banks to the Secured Hedging Agreements giving rise to such Secured Hedging Obligations in proportion to the respective amounts described in this clause Fourth held by them; and
Last , the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE IX.
ADMINISTRATIVE AGENT AND OTHER AGENTS
9.01      Appointment and Authority . Each of the Lenders hereby irrevocably appoints Jefferies Finance LLC to act on its behalf as the Administrative Agent and the Collateral Agent hereunder and under the other Loan Documents and irrevocably authorizes the Administrative Agent and the Collateral Agent to take such actions on its behalf and to exercise such powers, rights and remedies as are delegated or granted to the Administrative Agent and/or the Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to Sections 9.06 , 9.10 and 9.12 , the provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent and the Lenders, and neither the Borrower, nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. In performing its functions and duties hereunder, each of the Administrative Agent and the Collateral Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Borrower or any of its Subsidiaries.
9.02      Rights as a Lender . The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, either the Administrative Agent or the Collateral Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans, the Person serving as the Administrative Agent

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

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Neither the Administrative Agent, the Collateral Agent nor any of their respective officers, partners, directors, employees or agents shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent and/or the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own bad faith, gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each of the Administrative Agent and the Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default is given to the Administrative Agent and/or the Collateral Agent by the Borrower or a Lender.
Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Loan Document or made in any written or oral statements made in connection with the Loan Documents and the transactions contemplated thereby, (ii) the contents of any financial or other statements, instruments, certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, whether made by the Administrative Agent or the Collateral Agent to the Lenders or by or on behalf of any Loan Party to the Administrative Agent, the Collateral Agent or any Lender in connection with the Loan Documents and the transactions contemplated thereby, (iii) the financial condition or business affairs of any Loan Party or any other Person liable for the payment of any Obligations, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the use of proceeds of the Loans or the occurrence or possible occurrence of any Default or Event of Default or to make any disclosures with respect to the foregoing, (iv) the execution, validity, enforceability, effectiveness, genuineness, collectability or sufficiency of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent and/or the Collateral Agent. Anything contained herein to the contrary notwithstanding, neither the Administrative Agent nor the Collateral Agent shall have any liability arising from confirmation of the amount of outstanding Loans or the component amounts thereof.
9.04      Reliance by Administrative Agent and the Collateral Agent . Each of the Administrative Agent and the Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each of the Administrative Agent and the Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, each of the Administrative Agent and the Collateral Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent or the Collateral Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Each of the Administrative Agent and the

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

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under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through such Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as an Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). Upon the acceptance of a successor’s appointment as such Agent, hereunder, and upon the execution and filing or recording of such financing statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as such Agent.
9.07      Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders .
(a)      Each Lender represents and warrants that it has, independently and without reliance upon any Agent, the Arrangers or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b)      No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such analysis on behalf of the Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders. Each Lender, by delivering its signature page to this Agreement or an Assignment and Assumption and funding its Term Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by each Agent, Required Lenders or Lenders, as applicable on the Closing Date.

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(c)      Each Lender acknowledges that Borrower and certain Affiliates of the Loan Parties are Eligible Assignees hereunder and may purchase Term Loans hereunder from Lenders from time to time, subject to the restrictions set forth in the definition of “Eligible Assignee.”
9.08      No Other Duties, Etc. Except as expressly set forth herein, none of the bookrunners, Arrangers or other titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as an Agent or a Lender hereunder. Each Agent shall have only those duties and responsibilities that are expressly specified herein and the other Loan Documents. Each Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the other Loan Documents, a fiduciary relationship in respect of any Lender or any other Person; and nothing herein or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or any of the other Loan Documents except as expressly set forth herein or therein.
9.09      Administrative Agent May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)      to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;
(b)      to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.06 and 10.04 ) allowed in such judicial proceeding; and
(c)      to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.06 and 10.04 . To the extent that the payment of any such compensation, expenses, disbursements and advances of the Administrative Agent, its agents and counsel, and any other

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amounts due the Administrative Agent under Sections 2.06 and 10.04 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10      Guaranty and Collateral Matters .
(a)      Each Secured Party hereby authorizes the Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to the Guaranty, the Collateral and the Security Documents, as applicable; provided that neither the Administrative Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Secured Obligations with respect to any Secured Hedging Agreement. Subject to Section 10.01 , without further written consent or authorization from any Secured Party, the Administrative Agent or Collateral Agent, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Liens encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 10.01 ) have otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to Section 10.19 or with respect to which Required Lenders (or such other Lenders as may be required to give such consent under Section 10.01) have otherwise consented.
(b)      Subject to Section 2.10 of the Guaranty, the Lenders irrevocably authorize the Administrative Agent or Collateral Agent, as applicable, to release any Guarantor from its obligations under the Guaranty in accordance with the terms of Section 10.19 . Upon request by the Administrative Agent or Collateral Agent, as applicable, at any time, the Required Lenders will confirm in writing the Administrative Agent’s or Collateral Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10 .
(c)      The Lenders irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document in accordance with the terms of Section 10.19 . Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property in accordance with this Section.
9.11      Withholding Tax . To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax and shall timely pay the full amount deducted or withheld to the

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relevant Governmental Authority in accordance with applicable law. Without limiting the provisions of Section 3.01 , each Lender shall, and does hereby, indemnify the Administrative Agent, and shall make payable in respect thereof within 30 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.11 . The agreements in this Section 9.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of all other obligations.
9.12      Intercreditor Agreements, Collateral Matters and Specified Amendments .
(a)      Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 10.06 ) hereby authorizes and directs the Administrative Agent and the Collateral Agent to enter into any Intercreditor Agreement, as applicable, on behalf of such Lender needed to effectuate the transactions permitted by this Agreement and agrees that the Administrative Agent and the Collateral Agent may take such actions on its behalf as is contemplated by the terms of such applicable Intercreditor Agreement. Without limiting the provisions of Sections 9.03 and 10.04 , each Lender hereby consents to (i) Jefferies Finance LLC and any successor serving in the capacity of Administrative Agent and agrees not to assert any claim (including as a result of any conflict of interest) against Jefferies Finance LLC, or any such successor, arising from the role of the Administrative Agent or other agent under the Security Documents or any such Intercreditor Agreement so long as it is either acting in accordance with the terms of such documents or otherwise has not engaged in bad faith, gross negligence or willful misconduct and (ii) Jefferies Finance LLC or any such successor, arising from its role as the Collateral Agent under the Security Documents or any such Intercreditor Agreement so long as it is either acting in accordance with the terms of such documents or otherwise has not engaged in bad faith, gross negligence or willful misconduct. In addition, Jefferies Finance LLC or any such successors, shall be authorized, without the consent of any Lender, to execute or to enter into amendments of, and amendments and restatements of, the Security Documents, any such Intercreditor Agreement and any additional and replacement intercreditor agreements, in each case, in order to effect the subordination of and to provide for certain additional rights, obligations and limitations in respect of, any Liens required by the terms of this Agreement to be Liens junior to, or pari passu with, the Secured Obligations, that are incurred as permitted by this Agreement, and to establish certain relative rights as between the holders of the Secured Obligations and the holders of the Indebtedness secured by such Liens junior or pari passu with the Secured Obligations, including as contemplated by Section 6.16(f) and Section 7.01 .

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(b)      The Lenders irrevocably authorize the Administrative Agent and the Collateral Agent to enter into any amendment contemplated by Sections 2.11(f) , 2.12(e) , and 6.16(f) .
ARTICLE X.
MISCELLANEOUS
10.01      Amendments, Etc. Except as set forth in Sections 2.11 and 2.12 , no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower, or any other Loan Party therefrom, shall be effective unless in writing signed by (1) the Required Lenders and the Borrower, or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (except, in each case, as set forth in clauses (2), (3) and (4) below), (2) the Required Facility Lenders and the Borrower and acknowledged by the Administrative Agent in the case of clause (h) below and (3) the parties to the Fee Letter in the case of the proviso after clause (h) below, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no such amendment, waiver or consent shall:
(a)      extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender;
(b)      postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) (it being understood that the waiver of, or amendment to the terms of, any mandatory prepayment shall not constitute such a postponement) or any mandatory reduction of the Aggregate Commitments hereunder without the written consent of each Lender directly affected thereby;
(c)      waive, reduce or postpone the principal of, or the stated rate of interest specified herein on, any Loan, or (subject to clause (z) of the second proviso to this Section 10.01 ) any fees or premiums or other amounts payable hereunder without the written consent of each Lender directly affected thereby; provided , however , that, without limiting the effect of clauses (h) and (i) below or the proviso directly below, only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate, (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or to reduce any fee payable hereunder or (iii) to waive, reduce or postpone any scheduled prepayment;
(d)      change Section 2.10 or Section 8.04 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender adversely affected thereby;
(e)      change any provision of this Section 10.01 or the definitions of “Required Lenders” or “Applicable Percentage” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender under the applicable Facility affected thereby; provided, with the consent of the Required Lenders, additional extensions of credit pursuant hereto may be included in the determination of

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‘Required Lenders” or “Applicable Percentage” on substantially the same basis as the Commitments and the Term Loans are included on the Closing Date;
(f)      other than as permitted by Section 9.10 and Section 10.19 , release (i) all or substantially all of the Guarantors from the Guaranty except as expressly provided in the Loan Documents and except in connection with a “credit bid” undertaken by the Administrative Agent or Collateral Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release) or (ii) all or substantially all of the collateral covered by the Security Documents without the written consent of each Lender;
(g)      consent to the assignment or transfer by any Loan Party of any of its rights and obligations under any Loan Documents without the written consent of each Lender adversely affected thereby; or
(h)      amend, waive or otherwise modify any term or provision of a particular Facility in each case with only the consent of the Required Facility Lenders under such Facility, so long as such amendment, waiver or modification does not directly affect the Lenders under any other Facility;
provided that, for the avoidance of doubt, all Lenders shall be deemed directly affected thereby with respect to any amendment described in clauses (f) , (g) and (h) ;
and, provided further , that (x) no amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall amend, modify or waive this Agreement or the Security Agreement so as to alter the ratable treatment of Obligations and Secured Hedging Obligations (including pursuant to Section 8.04 ) or the definition of “Hedging Obligations,” “Hedging Agreement,” “Obligations,” “Secured Hedging Agreement”, “Secured Hedging Obligations” or “Secured Obligations” (as defined herein or in any applicable Security Documents) in each case in a manner adverse to any Hedge Bank with Secured Hedging Obligations then outstanding without the written consent of any such party; (y) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (z) each Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties to the applicable Fee Letter. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (i) the Commitment of such Lender may not be increased or extended and (ii) the principal of any Loan owed to such Lender may not be reduced without the consent of such Lender.
Notwithstanding the foregoing, the Borrower and the Administrative Agent may amend (and may authorize the Collateral Agent to amend) this Agreement and the other Loan Documents without the consent of any Lender (a) to cure any ambiguity, omission, mistake, error, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as

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such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, (b) to add a Guarantor with respect to the Loans or collateral to secure the Loans or (c) to make administrative changes that do not adversely affect the rights of any Lender (including as contemplated by Section 2.11(d)(iv) , and 2.12(d)(vi) ). In addition, the Administrative Agent, without the consent of any Lender, shall be permitted to enter into (and direct the Collateral Agent, as applicable, to enter into) any amendments, waivers, modifications or supplements to any Intercreditor Agreement, if the Administrative Agent would have been permitted hereunder to enter into a new Intercreditor Agreement which contained the terms set forth in such amendment, waiver, modification or supplement, at the time when such amendment, waiver, modification or supplement is entered into.
In addition, notwithstanding the foregoing, in situations not otherwise governed by Sections 2.11 and 2.12 , this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof (collectively, the “ Additional Extensions of Credit ”) to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; provided , however , that no such amendment shall permit the Additional Extensions of Credit to share in preference to the Term Loans in the application of any mandatory prepayments without the consent of Required Lenders (without giving effect to such Extensions of Credit).
The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
Any such waiver and any such amendment or modification pursuant to this Section 10.01 shall be binding upon the Borrower, the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default that is waived pursuant to this Section 10.01 shall be deemed to be cured and not continuing during the period of such waiver.
10.02      Notices; Effectiveness; Electronic Communication .
(a)      Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by telecopier (except for any notices sent to the Administrative Agent) as follows or sent by electronic communication as provided in subsection (b) below, and

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all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)      if to the Borrower or the Administrative Agent, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02 ; and
(ii)      if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified on Schedule 10.02 or in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when received (except that, if not received during normal business hours for the recipient, shall be deemed to have been received at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). Notwithstanding the foregoing, (a) no notice to the Administrative Agent shall be effective until received by the Administrative Agent and (b) any such notice or other communication shall at the request of the Administrative Agent be provided to any sub agent appointed pursuant to Section 9.05 as designated by the Administrative Agent from time to time.
(b)      Electronic Communications . Notices and other communications to the Administrative Agent or the Lenders may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in their discretion, agree to accept notices and other communications to the Administrative Agent or the Borrower hereunder by electronic communications pursuant to procedures approved by the Administrative Agent or the Borrower, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c)      The Platform . THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE

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ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. Each Loan Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses have resulted from the gross negligence or willful misconduct of such Agent Party, as determined by a final non-appealable judgment of a court of competent jurisdiction; provided , however , that in no event shall the Borrower or any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages); provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 10.04(a) or 10.04(b) , respectively. Each Loan Party, each Lender, and the Administrative Agent agrees that the Administrative Agent may, but shall not be obligated to, store any electronic communication on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.
(d)      Defaults . Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof.
(e)      Change of Address, Etc. The Borrower and the Administrative Agent may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(f)      Reliance by Administrative Agent and Lenders . The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Borrower, even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

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(g)      Private Side Information Contacts . Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public-Side Information” portion of the Platform and that may contain Private-Side Information. In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither the Borrower nor the Administrative Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.
10.03      No Waiver; Cumulative Remedies . No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall impair such right, remedy, power or privilege or be construed to be a waiver of any default or acquiescence therein; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided and in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
10.04      Expenses; Indemnity; Damage Waiver .
(a)      Costs and Expenses . The Borrower shall pay (i) all reasonable and documented out-of-pocket legal and other expenses incurred by the Agents and their respective Affiliates and the Collateral Agent (including the reasonable and documented fees, charges and disbursements of a single counsel for the Agents and the Arrangers, a single local counsel in each relevant jurisdiction and any special counsel reasonably deemed necessary by the Administrative Agent and a separate counsel for the Collateral Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, due diligence, negotiation, execution, delivery, administration and enforcement of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable and documented out-of-pocket legal and other expenses (including the cost of any investigation or preparation) incurred by any Agent or any Lender or Collateral Agent (including the reasonable fees, charges and disbursements of any counsel for any Agent or any Lender, limited to one firm of counsel for all Indemnitees (as defined below), taken as a whole, and if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the indemnified party affected by such conflict notifies the Borrower of the existence of such conflict, of another firm of counsel for such affected Indemnitees and local counsel for the conflicted party and a separate counsel for the Collateral Agent), in connection with the enforcement or protection of its rights

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(A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans; provided , that your reimbursement obligations in respect of legal fees and expenses under clause (i) above (other than with respect to costs, fees and expenses related to (1) real estate collateral-related matters (including, for the avoidance of doubt, diligence with respect thereto) and (2) solely in the event of an actual or perceived conflict of interest in respect of any local counsel engaged by you, local counsel/special mining counsel in any relevant jurisdiction) shall be limited to $500,000 through the Closing Date.
(b)      Indemnification by the Borrower . The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the Arrangers and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities (including any Environmental Liability) and related reasonable and documented out-of-pocket fees and expenses (including the reasonable documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee (whether or not such investigation, litigation, claim or proceeding is brought by the Borrower, the Borrower’s equity holders, affiliates or creditors or an Indemnitee and whether or not any such Indemnitee is otherwise a party thereto) or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom and (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to (x) have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing), (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document or (z) have arisen out of or in connection with any claim, litigation, loss or proceeding not involving an act or omission of the Borrower or any of its Related Parties and that is brought by an Indemnitee against another Indemnitee (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under this Agreement or any claims arising out of any act or omission of the Borrower or any of its Affiliates). The Borrower also agrees that no Indemnitee shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower for or in connection with this Agreement or the other Loan Documents, any transactions contemplated hereby or thereby or such Indemnitees’ role or services in connection herewith or therewith, except to the extent that any liability for losses, claims, demands, damages, liabilities or expenses

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incurred by the Borrower (i) resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (ii) resulted from a material breach by such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing) of the terms of this Agreement or the other Loan Documents (in the case of clauses (i) and (ii), as determined by a court of competent jurisdiction in a final, non-appealable judgment). This Section 10.04(b) shall not apply with respect to Taxes other than any taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c)      Reimbursement by Lenders . To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the Arrangers or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Arrangers or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the Arrangers, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or the Arrangers in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.09(d) .
(d)      Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no party hereto shall assert, and each hereby waives, any claim against the Borrower and its Affiliates or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof; provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 10.04(a) or 10.04(b) , respectively. No Indemnitee referred to in subsection (b) above or the Borrower and its Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to the extent such damages result from the gross negligence or willful misconduct of such Indemnitee.
(e)      Payments . All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f)      Survival . The agreements in this Section shall survive the resignation of the Administrative Agent and the Arrangers, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations and Secured Hedging Obligations. The reimbursement, indemnity and contribution obligations of the Borrower under this Section 10.04 will be in addition to any liability which the Borrower may otherwise have, will extend upon the same terms and conditions to any affiliate of any Indemnitee and the partners, members, directors, agents, employees, and controlling persons (if

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any), as the case may be, of any Indemnitee and any such affiliate, and will be binding upon and inure to the benefit of any successors and assigns of the Borrower, any Indemnitee, any such affiliate, and any such Person.
10.05      Marshalling; Payments Set Aside . Neither any Agent nor any Lender or Collateral Agent shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of the Borrower is made to the Agents, the Arrangers or any Lender, or the Agents, the Arrangers, any Lender or the Collateral Agent enforces any security interests or exercises its right of setoff, and such payment or the proceeds of such enforcement or setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agents, the Arrangers or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders under clause (b) of the preceding sentence shall survive Payment in Full and the termination of this Agreement.
10.06      Successors and Assigns .
(a)      Successors and Assigns Generally . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder, except through a transaction permitted hereunder, without the prior written consent of the Administrative Agent and the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section, provided that the Borrower shall be deemed to have consented to such assignment if the Borrower has not otherwise rejected in writing such assignment within ten (10) Business Days of the date on which such assignment is requested. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Arrangers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)      Assignments by Lenders . Any Lender may at any time sell, assign or transfer to one or more Eligible Assignees, upon the giving of notice to the Borrower and the

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Administrative Agent, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it or other Obligations); provided that:
(i)      except (a) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it, which such amount is less than the applicable minimum transfer amount set forth below, or (b) in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $1,000,000, unless each of the Administrative Agent and, so long as no Event of Default under Section 8.01(a) , (f) or (g) has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided , that the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided however , that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;
(ii)      each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned;
(iii)      the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500 ( provided however , that the Administrative Agent may in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment) and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and such forms, certificate or other evidence, if any, as the assignee under such Assignment and Assumption may be required to deliver pursuant to Section 3.01 ; and
(iv)      pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and related Commitments.
Subject to acceptance and recording thereof in the Register by the Administrative Agent pursuant to subsection (c) of this Section, from and after the closing date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its

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

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Register (and each Note shall expressly so provide). The Register shall be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice.
(d)      Participations . Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender, to the extent that it has a consent right hereunder, will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a), (b), (c), (g) and (h) of the first proviso to Section 10.01 that affects such Participant (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof). Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Section 3.01 , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment, provided , that in the case of Section 3.01 , such Participant shall have complied with the requirements of such section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the participating Lender). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; such Participant agrees to be subject to Section 2.10 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as a non- fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest on) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender and each Loan Party shall treat each Person whose name is

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recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(e)      Limitation upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Section 3.01 , 3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. No Participant shall be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f)      Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto; provided further, that in no event shall the applicable Federal Reserve Bank, pledgee or trustee, be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.
(g)      Electronic Execution of Assignments . The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.
10.07      Treatment of Certain Information; Confidentiality . Each of the Agents, Arrangers and the Lenders agrees that it will treat as confidential all information provided to it hereunder or under any other Loan Document by or on behalf of the Borrower or any of its Subsidiaries or Affiliates, except to the extent such information (a) is publicly available or becomes publicly available other than by reason of disclosure by the Agents, Arrangers or the Lenders, any of their respective affiliates or representatives in violation of this Agreement or the other Loan Documents, (b) was received by the Agents, Arrangers and the Lenders from a source (other than the Borrower or any of its affiliates, advisors, members, directors, employees, agents or other representatives) not known by the Agents, Arrangers and the Lenders to be prohibited from disclosing such information to such Person by a legal, contractual or fiduciary obligation to the Borrower and (c) to the extent that such information was already in the Agents’, Arrangers’ and the Lenders’ possession from a source other than the Borrower or any of its affiliates, advisors, members, directors, employees, agents or other representatives or is independently developed by such Person without the use of or reference to any such confidential information; provided, however, that nothing herein will prevent the Agents, Arrangers and the Lenders from disclosing any such information (including information regarding Disqualified Institutions) (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable Law or compulsory legal

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process (in which case such Person agrees to inform the Borrower promptly thereof to the extent not prohibited by law), (b) upon the request or demand of any regulatory authority or any self- regulatory authority having jurisdiction over such Person or any of its affiliates, (c) to such Person’s affiliates and their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other experts or agents who need to know such information and on a confidential basis and who have been advised of their obligation to keep information of this type confidential or are bound by an agreement to keep information of this type confidential (with such Agent, Arranger or Lender being responsible for such person’s compliance with this Section 10.07 ), (d) to potential and prospective Lenders, assignees, participants and any direct or indirect contractual counterparties to any Hedging Agreement relating to the Borrower or its obligations under this Agreement (other than Disqualified Institutions), in each case, subject to such recipient’s agreement (which agreement may be in writing or by “click through” agreement or other affirmative action on the part of the recipient to access such information and acknowledge its confidentiality obligations in respect thereof pursuant to customary syndication practice) to keep such information confidential on substantially the terms set forth in this Section 10.07 , (e) to ratings agencies who have agreed to keep such information confidential on terms no less restrictive than this Section 10.07 in any material respect or otherwise on terms acceptable to the Borrower in connection with obtaining ratings of the Term Loans, (f) for purposes of establishing a “due diligence” defense, (g) on a confidential basis, to (i) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans and (ii) market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent or the Collateral Agent in connection with the administration, settlement and management of this Agreement and the Loan Documents or (h) disclosures in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder. In addition, the Administrative Agent, in consultation with the Borrower, may place the customary “tombstone” advertisement in publications of its choice at its expense; provided , that, no “tombstone” advertisement may be used or submitted for publication without the prior written consent of the Borrower and, thereafter, the Administrative Agent may, from time to time, publish such information until such time that the Company shall have requested in writing that the Arrangers cease any such further publication.
Each of the Agents, the Arrangers and the Lenders acknowledges that (a) the information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non- public information and (c) it will handle such material non-public information in accordance with applicable Laws, including Federal and state securities laws.
10.08      Right of Setoff . In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default or at maturity each Lender is hereby authorized by each Loan Party at any time or from time to time subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Loan Party or to any other Person (other than the Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust

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accounts) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Loan Party against and on account of the obligations and liabilities of any Loan Party to such Lender hereunder, including all claims of any nature or description arising out of or connected hereto, irrespective of whether or not (a) such Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to Article II and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Sections 2.13 and 8.04 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
10.09      Usury Savings Clause . Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrower.
10.10      Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof; provided that the

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provisions contained in each of that certain Engagement Letter dated February 21, 2017, by and between Jefferies Finance LLC and Contura Energy, Inc. and that certain Fee Letter dated February 21, 2017, by and between Jefferies Finance LLC and Contura Energy, Inc., which by their terms survive the execution and effectiveness of this Agreement and the other Loan Documents shall survive and not be superseded by this Agreement and the other Loan Documents. Except as provided in Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11      Survival of Representations, Warranties and Agreements . All representations, warranties and agreements made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof and the funding of any Borrowing. Such representations, warranties and agreements have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied. Notwithstanding anything herein or implied by law to the contrary, the agreements of each Loan Party set forth in Sections 3.01, 3.04, 3.05, 10.04(a), 10.04(b) and 10.08 and the agreements of Lenders set forth in Sections 2.10, 9.03 and 10.04(c) shall survive the payment of the Loans and the termination hereof.
10.12      Severability . If any provision of this Agreement or the other Loan Documents or any obligation hereunder or under any other Loan Document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions or obligations of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions or obligations with valid provisions or obligations the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions or obligations. The invalidity of a provision or obligation in a particular jurisdiction shall not invalidate or render unenforceable such provision or obligation in any other jurisdiction.
10.13      Replacement of Lenders . If (a) any Lender requests compensation under Section 3.04 , (b) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , (c) any Lender is at such time a Defaulting Lender or has given notice pursuant to Section 3.02 or (d) any Lender becomes a “ Nonconsenting Lender ” (hereinafter defined), then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to (and such Lender shall) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 ), all of its interest, rights and obligations under this Agreement and the related Loan Documents to an assignee selected by the Borrower that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

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(a)      the Administrative Agent shall have received the assignment fee specified in Section 10.06(b) ( provided however , that the Administrative Agent may in its sole discretion elect to waive such processing and recordation fee in the case of any assignment);
(b)      such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c)      in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter;
(d)      such assignment does not conflict with applicable Laws, and
(e)      neither the Administrative Agent nor any Lender shall be obligated to be or to find the assignee.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. In the event that (x) the Borrower or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto and (y) the Required Lenders or Required Facility Lenders, as applicable, have agreed to such consent, waiver or amendment, then any such Lender, who does not agree to such consent, waiver or amendment and whose consent would otherwise be required for such departure, waiver or amendment, shall be deemed a “ Nonconsenting Lender .” Any such replacement shall not be deemed a waiver of any rights that the Borrower shall have against the replaced Lender.
Each Lender agrees that if the Borrower exercises its option hereunder to cause an assignment by such Lender as a Nonconsenting Lender or otherwise pursuant to this Section 10.13 , such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.06 . In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.06 on behalf of a Nonconsenting Lender or Lender replaced pursuant to this Section 10.13 , and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.06 .
10.14      Governing Law; Jurisdiction; Etc.
(a)      GOVERNING LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-

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JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b)      CONSENT TO JURISDICTION . SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH LOAN PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE LOAN PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.02 ; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE LOAN PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, ARRANGERS, COLLATERAL AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
10.15      Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER

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WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.15 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.16      USA PATRIOT Act Notice . Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Act.
10.17      Time of the Essence . Time is of the essence of the Loan Documents.
10.18    No Advisory or Fiduciary Responsibility Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Agent, Arranger or Lender, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Agents and the Arrangers and the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Borrower and their Affiliates, on the one hand, and the Agents and the Arrangers, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each Agent, each Arranger and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party, its management, stockholders, creditors or any of its affiliates or any other Person with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (B) neither any of the Agents nor any of the Arrangers nor any Lender has any obligation to the Borrower or any of its respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the

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other Loan Documents; and (iii) the Agents and the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that conflict with those of the Borrower and its respective Affiliates, and neither any of the Agents nor any of the Arrangers has any obligation to disclose any of such interests to the Borrower or its respective Affiliates. Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Agents and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
10.19      Release of Liens and Release from Guaranty .
(a)      Subject to the terms of the Intercreditor Agreements, the Lenders hereby authorize and direct the Collateral Agent to release any Lien granted to or held by the Collateral Agent upon any Collateral (A) after Payment in Full and the termination or expiration of all Secured Hedging Agreements (other than obligations and liabilities under Secured Hedging Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedging Agreements, (B) upon any sale or other transfer by any Loan Party of any Collateral that is permitted under this Agreement (other than a sale or other transfer to a Loan Party) or upon effectiveness of any written direction by the consent to the release of the security interest created under any Security Document in any Collateral pursuant to Section 10.01 , (C) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, with respect to the Collateral owned by such Unrestricted Subsidiary, (D) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 10.01 ) with respect to the release of such Collateral and (E) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, with respect to the Collateral owned by such Guarantor. After either (v) Payment in Full and the termination or expiration of all Secured Hedging Agreements (other than obligations and liabilities under Secured Hedging Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedging Agreements, (w) upon any sale or other transfer of a Loan Parry that is permitted under this Agreement (other than a sale or other transfer to a Loan Party), (x) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, (y) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 10.01 ) with respect to the release of any Guarantor under the terms of the Guaranty or (z) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, each applicable Guarantor (or, in the case of clause (w) above, the applicable Guarantor so sold or transferred) shall automatically be released from the Guaranty, all without delivery of any instrument or performance of any act by any Person; provided that any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any

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Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(b)      Notwithstanding anything to the contrary contained herein or in any other Loan Document, in connection with any termination or release pursuant to this Section 10.19 , the Administrative Agent and/or Collateral Agent shall be, and are hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender) to execute and deliver, and shall promptly execute and deliver to the applicable Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release (including (1) UCC termination statements and (2) in the case of a release of Mortgages, a partial release) and return to the Borrower, the possessory Collateral that is in the possession of the Collateral Agent and is the subject of such release.
(c)      Any execution and delivery of documents, or the taking of any other action, by the Administrative Agent and/or Collateral Agent pursuant to this Section 10.19 shall be without recourse to or warranty by the Administrative Agent or Collateral Agent.
10.20      Independence of Covenants . All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
10.21      Independent Nature of Lenders’ Rights . Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a Joint Venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
10.22      Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)      the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)      the effects of any Bail-in Action on any such liability, including, if applicable:
(i)      a reduction in full or in part or cancellation of any such liability;

131
    


(ii)      a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)      the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
10.23      Original Issue Discount . THE TERM LOANS MAY BE TREATED AS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY OF THE LOANS MAY BE OBTAINED BY WRITING TO THE BORROWER AT ITS ADDRESS SPECIFIED HEREIN.

[Signature pages follow]



132
    


IN WITNESS WHEREOF, each of the undersigned has caused this Credit Agreement to be duly executed and delivered as of the date first above written.
BORROWER
 
 
CONTURA ENERGY, INC.
By:
/s/ C. Andrew Eidson
Name: C. Andrew Eidson
Title: Executive Vice President, Chief Financial Officer and Treasurer

ADMINISTRATIVE AGENT,
COLLATERAL AGENT AND A LEANDER
 
 
JEFFERIES FINANCE LLC
By:
/s/ John Koehler
Name: John Koehler
Title: Senior Vice President

Signature Page to Credit Agreement - Contura
Exhibit 10.2

EXECUTION VERSION

FIRST AMENDMENT TO CREDIT AGREEMENT

THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “ Amendment ”) is made and entered into as of June 13, 2017, by and among CONTURA ENERGY, INC., a Delaware corporation (the “ Borrower ”), each of the Guarantors (as defined in the Credit Agreement referred to below), the Lenders (as defined below) that are parties hereto, and JEFFERIES FINANCE LLC, in its capacity as administrative agent (the “ Administrative Agent ”) and collateral agent (the “ Collateral Agent ”) for the Lenders.

W I T N E S S E T H :

WHEREAS, the Borrower, the several banks and other financial institutions party thereto (collectively, the “ Lenders ”), the Administrative Agent and the Collateral Agent are parties to that certain Credit Agreement, dated as of March 17, 2017 (as amended, supplemented and modified from time to time and in effect immediately prior to the date hereof, the “ Credit Agreement ”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement as amended hereby), pursuant to which the Lenders have made certain financial accommodations available to the Borrower; and

WHEREAS, the Borrower has requested that the Lenders, the Administrative Agent and the Collateral Agent amend certain provisions of the Credit Agreement in order to permit the Borrower to make a one-time dividend, and subject to the terms and conditions hereof, the Lenders executing this Amendment are willing to do so;

NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of which are acknowledged, the Borrower, the Lenders executing this Amendment, the Administrative Agent and the Collateral Agent agree as follows:

1. Amendments to Credit Agreement .

(a)    Section 1.01 of the Credit Agreement is hereby amended by amending the definition of “Available Amount” to (i) delete the period at the end of clause (iii) thereof and replacing it with “; minus ” and (ii) inserting a new clause (iv) at the end thereof as follows:

“(iv) to the extent any Restricted Payment is made pursuant to Section 7.06(n) , the remainder (if positive) of (A) the aggregate amount of such Restricted Payment less (B) $20,000,000.”

(b)    Section 1.01 of the Credit Agreement is hereby further amended by inserting the following defined terms therein in appropriate alphabetical order:

“‘ First Amendment Effective Date ’ means June 13, 2017.”

(c)    Section 2.03(d) of the Credit Agreement is hereby amended and restated in its entirety as follows:

“(d)         Excess Cash Flow . In the event that there shall be Excess Cash Flow for any fiscal year (commencing with the fiscal year ending December 31, 2017 for the portion of such fiscal year occurring after the Closing Date), Borrower shall, no later than one hundred thirty (130) days after the end of such fiscal year, prepay the Term Loans in an aggregate amount equal to (i) 75% of such Excess Cash Flow minus (ii) voluntary repayments of the Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, repayments of Loans made with the cash proceeds of any Permitted Refinancing Indebtedness); provided , that if, as of the last day of the most



recently ended fiscal year, the Total Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 6.02(a) calculating the Total Leverage Ratio as of the last day of such fiscal year) shall be (1) less than 2.50:1.00 and greater than or equal to 1.25:1.00, Borrower shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 50% of such Excess Cash Flow minus (ii) voluntary repayments of the Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, repayments of Loans made with the cash proceeds of any Permitted Refinancing Indebtedness) and (2) less than 1.25:1.00, Borrower shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 25% of such Excess Cash Flow minus (ii) voluntary repayments of the Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, repayments of Loans made with the cash proceeds of any Permitted Refinancing Indebtedness).”

(d)    Section 7.06 of the Credit Agreement is hereby amended by amending and restating clause (e) in its entirety as follows:

“(e) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Subsidiaries may make Restricted Payments in an amount not to exceed (i) the remainder (if positive) of (1) $20,000,000 less (2) the aggregate amount of any Restricted Payment made pursuant to Section 7.06(n) , plus (ii) the Available Amount; provided that, the First Lien Leverage Ratio (calculated on a Pro Forma Basis) shall be less than or equal to (A) with respect to any such calculation in respect of a four consecutive quarter period ended on or before December 31, 2017, 1.00:1.00 after giving effect to such Restricted Payment, (B) with respect to any such calculation in respect of a four consecutive quarter period ended after December 31, 2017 and on or before December 31, 2018, 1.25:1.00 after giving effect to such Restricted Payment and (C) with respect to any other such calculation, 1.50:1.00 after giving effect to such Restricted Payment;”

(e)    Section 7.06 of the Credit Agreement is hereby further amended by (i) deleting the word “and” at the end of clause (l) thereof; (ii) deleting the period at the end of clause (m) thereof and replacing it with “; and”; and (iii) inserting a new clause (n) at the end thereof as follows:

“(n) the Borrower may (i) no later than 45 days after the First Amendment Effective Date, declare and pay a one-time cash dividend or distribution from unencumbered cash on hand to its shareholder, (ii) no later than December 31, 2017, purchase, redeem or otherwise acquire Equity Interests issued by it, or (iii) any combination of the foregoing, in an aggregate amount for all such transactions not to exceed $150,000,000 so long as (A) no Event of Default shall have occurred and be continuing or would result therefrom, (B) the First Lien Leverage Ratio (calculated on a Pro Forma Basis) shall be less than or equal to 1.00:1.00 after giving effect to such Restricted Payment, and (C) at least three Business Days prior to the first of any such Restricted Payment the Borrower shall make an offer to all Lenders to repay the Term Loans at par concurrently with the payment of such Restricted Payment in an aggregate principal amount equal to $10,000,000; provided that, notwithstanding anything to the contrary in this Agreement, each Lender may notify the Administrative Agent by no later than 5:00 p.m., New York City time on the second Business Day after the delivery of such prepayment offer to the extent it does not wish to accept all or any portion of its Applicable Percentage of such offer. Any Lender whose response is not received by the Administrative Agent by 5:00 p.m., New York City time on the second Business Day after the delivery of the prepayment offer or does not specify the amount of its share of the prepayment that it is declining shall be deemed an acceptance of the total amount of such Lender’s share of the

2

prepayment offer. Concurrently with the payment of the first of any Restricted Payment pursuant to this clause (n), the Borrower shall make a prepayment at par of outstanding Term Loans to each Lender who accepted (or has been deemed to accept) the prepayment offer in a principal amount equal to such Lender’s Applicable Percentage of $10,000,000 which shall be applied (or deemed applied) to the remaining scheduled installments of principal owed to such Lender in inverse order of maturity. Any portion of the prepayment properly rejected pursuant to the above terms shall be retained by the Borrower.”

2. Effectiveness of Amendment . Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that the amendment contained herein shall not become effective, and the Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received:

(a)      this Amendment duly executed by the Borrower, each Guarantor, the Required Lenders, the Administrative Agent and the Collateral Agent;

(b)      a certificate signed by a Responsible Officer of the Borrower certifying that as of the effective date of this Amendment, (i) after giving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;

(c)      a fee equal to 0.25% of the Term Loans payable to the Administrative Agent for the ratable benefit of the Lenders executing this Amendment based upon their respective Applicable Percentages; and

(d)      reimbursement or payment of the costs and expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment or otherwise outstanding under the Credit Agreement, including, without limitation, the reasonable fees and out-of-pocket expenses of outside counsel for the Administrative Agent.

3. Representations and Warranties . To induce the Lenders, the Administrative Agent and the Collateral Agent to enter into this Amendment, each of the Loan Parties represents and warrants to the Lenders, the Administrative Agent and the Collateral Agent that:

(a)    The execution, delivery and performance by such Loan Party of this Amendment are within its organizational powers and have been duly authorized by all necessary organizational and, if required, shareholder, partner or member action. This Amendment has been duly executed and delivered by such Loan Party and constitutes a valid and binding obligation of such Loan Party, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

(b)    The execution, delivery and performance by such Loan Party of this Amendment (a) do not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect, (b) will not violate any Requirement of Law or any judgment, order or ruling of any Governmental Authority, in each case, applicable to such Loan Party, (c) will not violate the terms of such Loan Party’s Organizational Documents, (d) will not violate or result in a default under any Contractual Obligation of such Loan Party or any of its assets or give rise to a right thereunder to require any payment to be made by such Loan Party and (e) will not result in the creation or imposition of any Lien on any asset of such Loan Party, except Liens (if any) created under the Loan Documents.

3


(c)    After giving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and no Default or Event of Default has occurred and is continuing as of the date hereof.

4. Reaffirmations and Acknowledgments . Each Loan Party does hereby adopt, ratify, and confirm the Credit Agreement and the other Loan Documents, as amended hereby and its obligations thereunder. Each of the Loan Parties hereby acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect, except as expressly amended hereby, notwithstanding the amendments contained herein.
    
5. Effect of Amendment . Except as set forth expressly herein, all terms of the Credit Agreement, as amended hereby, and the other Loan Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the Borrower to the Lenders and the Administrative Agent. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement. Any reference in any Loan Document to the Credit Agreement (including “thereunder”, “thereof” or other words of like import referring to the Credit Agreement) shall be a reference to the Credit Agreement as amended by this Amendment. This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement.

6. Governing Law . This Amendment and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York (without giving effect to the conflict of law principles thereof except for Sections 5-1401 and 5-1402 of the New York General Obligations Law) and all applicable federal laws of the United States of America.

7. No Novation . This Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard thereto.

8. Counterparts . This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof.

9. Costs and Expenses . The Borrower agrees to pay all costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment which are payable pursuant to Section 10.04 of the Credit Agreement.

10. Binding Nature . This Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and assigns.

11. Entire Understanding . This Amendment sets forth the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto.

[ Signature Pages Follow ]


4




IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.


BORROWER:
 
 
 
CONTURA ENERGY, INC.
 
 
 
 
 
 
By
/s/ C. Andrew Eidson
 
Name:
C. Andrew Eidson
 
Title:
Executive Vice President, Chief Financial Officer and Treasurer



[Signature Page to First Amendment to Credit Agreement (Contura)]



GUARANTORS:
 
 
 
CONTURA ENERGY, LLC
 
 
 
 
 
 
By
/s/ C. Andrew Eidson
 
Name:
C. Andrew Eidson
 
Title:
Manager and President
 
 
 
 
 
 
CONTURA ENERGY SERVICES, LLC
 
 
 
 
 
 
By
/s/ C. Andrew Eidson
 
Name:
C. Andrew Eidson
 
Title:
Executive Vice President and Chief Financial Officer
 
 
 
 
 
 
CONTURA MINING HOLDING, LLC
 
 
 
 
 
 
By
/s/ C. Andrew Eidson
 
Name:
C. Andrew Eidson
 
Title:
Executive Vice President, Chief Financial Officer and Treasurer
 
 
 
EMERALD CONTURA, LLC
DICKENSON-RUSSELL CONTURA, LLC
NICHOLAS CONTURA, LLC
CONTURA COAL RESOURCES, LLC
CONTURA WYOMING LAND, LLC
CONTURA COAL SALES, LLC
POWER MOUNTAIN CONTURA, LLC
CUMBERLAND CONTURA, LLC
CONTURA PENNSYLVANIA LAND, LLC
CONTURA FREEPORT, LLC
CONTURA EUROPEAN MARKETING, LLC
PARAMONT CONTURA, LLC
CONTURA PENNSYLVANIA TERMINAL, LLC
CONTURA CAPP LAND, LLC
CONTURA COAL WEST, LLC
CONTURA TERMINAL, LLC
 
 
 
 
 
 
By
/s/ C. Andrew Eidson
 
Name:
C. Andrew Eidson
 
Title:
Vice President and Treasurer

[Signature Page to First Amendment to Credit Agreement (Contura)]

JEFFERIES FINANCE LLC
as Administrative Agent, Collateral Agent and Lender
 
 
 
 
 
 
By
/s/ J. Paul McDonnell
 
Name:
J. Paul McDonnell
 
Title:
Managing Director



[Signature Page to First Amendment to Credit Agreement (Contura)]

Arch Street CLO, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Scott D'Orsi
 
Name:
Scott D'Orsi
 
Title:
Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




BDCA-CB FUNDING, LLC
as a Lender
 
 
 
 
 
 
By:
/s/ Corinne Pankovcin
 
Name:
Corinne Pankovcin
 
Title:
Director




Benefit Street Partners Capital Opportunity Fund SPV LLC
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO IV, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO IX, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO V, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO VI, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO VII, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO VIII, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO X, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO XI, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners CLO XII, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




BSP Senior Secured Debt Fund (Non-US) SPV-1 L.P.
as a Lender
By: BSP Senior Secured Debt Fund (Non-US) SPV GP L.L.C., its general partner
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Benefit Street Partners SMA-C SPV L.P.
as a Lender
 
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Blue Cross of Idaho Health Service, Inc.
as a Lender
By: Seix Investment Advisors LLC, as Investment Manager
 
 
 
 
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




BlueMountain CLO 2012-2 Ltd
as a Lender
BY: BLUEMOUNTAIN CAPITAL MANAGEMENT, LLC,
Its Collateral Manager
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 




BlueMountain CLO 2013-1 LTD.
as a Lender
BY: BLUEMOUNTAIN CAPITAL MANAGEMENT, LLC.
ITS COLLATERAL MANAGER
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 




BlueMountain CLO 2013-4 Ltd.
as a Lender
BY: BLUEMOUNTAIN CAPITAL MANAGEMENT, LLC.
ITS COLLATERAL MANAGER
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2014-1 Ltd
as a Lender
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2014-2 Ltd
as a Lender
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2014-3 Ltd.
as a Lender
By: BlueMountain Capital Management, LLC
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2014-4 Ltd
as a Lender
BY: BlueMountain Capital Management
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2015-1 Ltd
as a Lender
BlueMountain Capital Management, its Collateral Manager
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2015-2, Ltd.
as a Lender
By: BlueMountain Capital Management, LLC
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2015-3 Ltd
as a Lender
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2015-4, Ltd.
as a Lender
By: BlueMountain Capital Management, LLC
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2016-1, Ltd.
as a Lender
BlueMountain Capital Management, LLC
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2016-2, Ltd.
as a Lender
BlueMountain Capital Management, LLC
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BlueMountain CLO 2016-3 Ltd
as a Lender
 
 
 
 
 
 
By:
/s/ Meghan Fornshell
 
Name:
Meghan Fornshell
 
Title:
Operations Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





BOWERY FUNDING ULC
as a Lender
 
 
 
 
 
 
By:
/s/ Madonna Sequeira
 
Name:
Madonna Sequeira
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 




Cent CLO 23 Limited
as a Lender
By: Columbia Management Investment Advisers, LLC
As Collateral Manager
 
 
 
 
 
 
By:
/s/ Steven B. Staver
 
Name:
Steven B. Staver
 
Title:
Assistant Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 




Citi Loan Funding BM 2017 LLC
as a Lender
By: Citigroup Financial Products Inc.
 
 
 
 
 
 
By:
/s/ Jennifer Guinn
 
Name:
Jennifer Guinn
 
Title:
Associate Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




City National Rochdale Fixed Income Opportunities Fund
as a Lender
By: Seix Investment Advisors LLC, as Subadviser
 
 
 
 
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




CONTINENTAL CASUALTY COMPANY
as a Lender
 
 
 
 
 
 
 
 
 
 
By:
/s/ Lynne Gugenheim
 
Name:
Lynne Gugenheim
 
Title:
Senior Vice President and Deputy General Counsel
 
 
 
 
 
 
 
 
 
 
 
 
 
Approved by Law Dept.
 
 
 
By:
/s/ Law Dept.
 
 
 
Date:
6-6-17




Crown Point CLO III, Ltd.
as a Lender
by Valcour Capital Management LLC, as its Collateral Manager
 
 
 
 
 
 
By:
/s/ John D'Angelo
 
Name:
John D'Angelo
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Dunham Floating Rate Bond Fund
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




FCCI Insurance Company
as a Lender
 
 
 
 
 
 
By:
/s/ Kathy News
 
Name:
Kathy News
 
Title:
Senior Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Figueroa CLO 2014-1, Ltd.
as a Lender
BY: TCW Asset Management Company as Investment Manager
 
 
 
 
 
 
By:
/s/ Nora Olan
 
Name:
Nora Olan
 
Title:
Senior Vice President
 
 
 
By:
/s/ Bibi Khan
 
Name:
Bibi Khan
 
Title:
Managing Director




Hastings Mutual Insurance Company
as a Lender
 
 
 
 
 
 
By:
/s/ Kathy News
 
Name:
Kathy News
 
Title:
Senior Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Honeywell International Inc Master Retirement Trust
as a Lender
 
 
 
 
 
 
By:
/s/ Kathy News
 
Name:
Kathy News
 
Title:
Senior Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 





JFIN CLO 2014-II LTD.
as a Lender
By: Apex Credit Partners LLC, as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 




JFIN CLO 2015 LTD.
as a Lender
By: Apex Credit Partners LLC, as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 




JFIN Fund V 2017 LLC
as a Lender
By: Apex Credit Partners LLC, as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 





JFIN MM CLO 2014 LTD.
as a Lender
By: Apex Credit Partners LLC, as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 





JFIN CLO 2014 LTD
as a Lender
By: Apex Credit Partners LLC, as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 





JFIN CLO 2015-II LTD.
as a Lender
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 





JFIN CLO 2016 LTD.
as a Lender
By: Apex Credit Partners LLC, as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 





JFIN CLO 2017 LTD.
as a Lender
By: Apex Credit Partners LLC, as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Morris Cohen
 
Name:
Morris Cohen
 
Title:
Vice President
 
 
 
By:
 
 
Name:
 
 
Title:
 





JEFFERIES LEVERAGED CREDIT PRODUCTS, LLC
as a Lender
 
 
 
 
 
 
By:
/s/ Paul Loomis
 
Name:
Paul Loomis
 
Title:
Managing Director




MAM CORPORATE LOAN ICAV
as a Lender
By: MARATHON ASSET MANAGEMENT, L.P.
Its Investment Manager
 
 
 
 
 
 
By:
/s/ Louis Hanover
 
Name:
Louis Hanover
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 




MARATHON CLO IX LTD.
as a Lender
By: MARATHON ASSET MANAGEMENT, L.P.
as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Louis Hanover
 
Name:
Louis Hanover
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 





Marathon CLO VI, Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Louis Hanover
 
Name:
Louis Hanover
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 





MARATHON CLO VII Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Louis Hanover
 
Name:
Louis Hanover
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 





Marathon CLO VIII Ltd.
as a Lender
 
 
 
 
 
 
By:
/s/ Louis Hanover
 
Name:
Louis Hanover
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 





Metropolitan West Floating Rate Income Fund
as a Lender
BY: Metropolitan West Asset Management as Investment
Manager
 
 
 
 
 
 
By:
/s/ Nora Olan
 
Name:
Nora Olan
 
Title:
Senior Vice President
 
 
 
By:
/s/ Bibi Khan
 
Name:
Bibi Khan
 
Title:
Managing Director




MIDTOWN ACQUISITIONS, L.P.,
as a Lender
By: Midtown Acquisitions GP LLC, its General Partner
 
 
 
 
 
 
By:
/s/ Morgan Blackwell
 
Name:
Morgan Blackwell
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 




Mountain View CLO 2014-1 Ltd.
as a Lender
By: Seix Investment Advisors LLC, as Collateral Manager
 
 
 
 
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Mountain View CLO 2016-1 Ltd.
as a Lender
By: Seix Investment Advisors LLC, as Collateral Manager
 
 
 
 
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 





Mountain View CLO 2017-1 Ltd.
as a Lender
By: Seix Investment Advisors LLC, as Collateral Manager
 
 
 
 
 
 
By:
/s/ Joseph Carucci
 
Name:
Joseph Carucci
 
Title:
Vice President & Compliance Analyst
 
 
 
By:
 
 
Name:
 
 
Title:
 





Mountain View CLO IX Ltd.
as a Lender
By; Seix Investment Advisors LLC, as Collateral Manager
 
 
 
 
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 





Mountain View CLO X Ltd.
as a Lender
By:
Seix Investment Advisors LLC, as Collateral Manager
 
 
 
 
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Newfleet CLO 2016-1, Ltd.
as a Lender
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Providence Debt Fund III L.P.
as a Lender
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Providence Debt Fund III Master (Non-US) L.P.
as a Lender
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




QUAMVIS SCA SICAV-FIS: CMAB - SIF - Credit Multi Asset Pool B
as a Lender
By:
Marathon Asset Management, L.P.
Its:
Sub-Investment Manager
 
 
 
 
By:
/s/ Louis Hanover
 
Name:
Louis Hanover
 
Title:
Authorized Signatory
 
 
 
By:
 
 
Name:
 
 
Title:
 




RidgeWorth Funds - Seix Floating Rate High Income Fund
as a Lender
By:
Seix Investment Advisors LLC, as Subadviser
 
 
 
 
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Safe Auto Insurance Company
as a Lender
 
 
 
 
 
By:
/s/ Kathy News
 
Name:
Kathy News
 
Title:
Senior Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




SEI Energy Debt Fund, LP.
as a Lender
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




SEI Institutional Investments Trust - High Yield Bond Fund
as a Lender
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




SEI Institutional Managed Trust - High Yield Bond Fund
as a Lender
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




Seix Multi-Sector Absolute Return Fund L.P.
as a Lender
By:
Seix Multi-Sector Absolute Return Fund GP LLC, in its capacity as sole general partner
By:
Seix Investment Advisors LLC, its sole member
 
 
By:
/s/ George Goudelias
 
Name:
George Goudelias
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




AIG Flexible Credit Fund
as a Lender
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 





Thrivent Balanced Income Plus Fund
as a Lender
By:
Thrivent Asset Management, LLC
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Balanced Income Plus Portfolio
as a Lender
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Diversified Income Plus Fund
as a Lender
By:
Thrivent Asset Management, LLC
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Diversified Income Plus Portfolio
as a Lender
By:
Thrivent Financial for Lutherans
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Financial Defined Benefit Plan Trust
as a Lender
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Financial For Lutherans
as a Lender
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Growth and Income Plus Fund
as a Lender
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Growth and Income Plus Portfolio
as a Lender
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Moderate Allocation Fund
as a Lender
By:
Thrivent Asset Management, LLC
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Moderate Allocation Portfolio
as a Lender
By:
Thrivent Financial for Lutherans
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Moderately Aggressive Allocation Fund
as a Lender
By:
Thrivent Asset Management, LLC
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Moderately Aggressive Allocation Portfolio
as a Lender
By:
Thrivent Financial for Lutherans
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Moderately Conservative Allocation Fund
as a Lender
By:
Thrivent Asset Management, LLC
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 





Thrivent Moderately Conservative Allocation Portfolio
as a Lender
By:
Thrivent Financial for Lutherans
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




THRIVENT MULTIDIMENSIONAL INCOME FUND
as a Lender
By:
Thrivent Asset Management, LLC
Its Investment Adviser
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 



Thrivent Opportunity Income Plus Fund
as a Lender
By:
Thrivent Asset Management, LLC
 
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Thrivent Opportunity Income Plus Portfolio
as a Lender
 
 
 
 
 
By:
/s/ Conrad Smith
 
Name:
Conrad Smith
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




U.S. High Yield Bond Fund
as a Lender
 
 
 
 
 
By:
/s/ Todd Marsh
 
Name:
Todd Marsh
 
Title:
Authorized Signer
 
 
 
By:
 
 
Name:
 
 
Title:
 




United Ohio Insurance Company
as a Lender
 
 
 
 
 
By:
/s/ Kathy News
 
Name:
Kathy News
 
Title:
Senior Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Valcour Opportunities Master Fund, Ltd.
as a Lender
 
 
 
 
 
By:
/s/ John D'Angelo
 
Name:
John D'Angelo
 
Title:
Sr. Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 




Vermont Pension Investment Committee
as a Lender
 
 
 
 
 
By:
/s/ Kathy News
 
Name:
Kathy News
 
Title:
Senior Portfolio Manager
 
 
 
By:
 
 
Name:
 
 
Title:
 



Vibrant CLO II, Ltd.
as a Lender
By:
DFG Investment Advisers, Inc., as Portfolio Manager
 
 
 
 
 
 
By:
/s/ Roberta Goss
 
Name:
Roberta Goss
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 



Vibrant CLO III, Ltd.
as a Lender
By:
DFG Investment Advisers, Inc.
 
 
 
 
 
 
By:
/s/ Roberta Goss
 
Name:
Roberta Goss
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Vibrant CLO IV, Ltd.
as a Lender
By:
DFG Investment Advisers, Inc., as Collateral Manager
 
 
 
 
 
 
By:
/s/ Roberta Goss
 
Name:
Roberta Goss
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Vibrant CLO V, Ltd.
as a Lender
By:
DFG Investment Advisers, Inc., as Collateral Manager
 
 
 
 
 
 
By:
/s/ Roberta Goss
 
Name:
Roberta Goss
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Vibrant CLO VI, Ltd.
as a Lender
By:
DFG Investment Advisers, Inc., as Collateral Manager
 
 
 
 
 
 
By:
/s/ Roberta Goss
 
Name:
Roberta Goss
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 





Vibrant CLO VII, Ltd.
as a Lender
By:
DFG Investment Advisers, Inc., as Collateral Manager
 
 
 
 
 
 
By:
/s/ Roberta Goss
 
Name:
Roberta Goss
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 



Virtus Global Multi Sector Income Fund
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 



Virtus Newfleet High Yield Fund
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Virtus Newfleet Multi-Sector Intermediate Bond Fund
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 





Virtus Newfleet Dynamic Credit ETF
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 





Virtus Newfleet Multi-Sector Unconstrained Bond ETF
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Virtus Newfleet Senior Floating Rate Fund
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Virtus Tactical Allocation Fund
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




Virtus Total Return Fund Inc.
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 






VVIT: Virtus Newfleet Multi-Sector Intermediate Bond Series
as a Lender
 
 
 
 
 
 
By:
/s/ Kyle Jennings
 
Name:
Kyle Jennings
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




ZAIS CLO 1, Limited
as a Lender
ZAIS CLO 1, Limited
 
 
 
 
By:
/s/ Vincent Ingato
 
Name:
Vincent Ingato
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




ZAIS CLO 2, Limited
as a Lender
ZAIS CLO 2, Limited
 
 
 
 
By:
/s/ Vincent Ingato
 
Name:
Vincent Ingato
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 





ZAIS CLO 3, Limited
as a Lender
ZAIS CLO 3, Limited
 
 
 
 
By:
/s/ Vincent Ingato
 
Name:
Vincent Ingato
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 




ZAIS CLO 5, Limited
as a Lender
By Zais Leveraged Loan Master Manager, LLC its collateral manager
By:
Zais Group, LLC, its sole member
By:
/s/ Vincent Ingato
 
Name:
Vincent Ingato
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 



ZAIS CLO 6, Limited
as a Lender
By Zais Leveraged Loan Master Manager, LLC its collateral manager
By:
Zais Group, LLC, its sole member
By:
/s/ Vincent Ingato
 
Name:
Vincent Ingato
 
Title:
Managing Director
 
 
 
By:
 
 
Name:
 
 
Title:
 



Exhibit 10.3
EXECUTION VERSION

 


ASSET-BASED REVOLVING CREDIT AGREEMENT
Dated as of April 3, 2017
among
CONTURA ENERGY, INC.
and certain of its Subsidiaries,
as the Borrowers
THE GUARANTORS PARTY HERETO
CITIBANK, N.A.,
as Administrative Agent
CITIBANK, N.A.,
as Swingline Lender
CITIBANK, N.A.,
BMO HARRIS BANK N.A.
and
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as L/C Issuers
The Other Lenders Party Hereto
and
CITIGROUP GLOBAL MARKETS INC.,
BMO CAPITAL MARKETS CORP. and
CREDIT SUISSE SECURITIES (USA) LLC,
as Joint Lead Arrangers and Joint Bookrunners


 




TABLE OF CONTENTS

_____________
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms
2
Section 1.02. Other Interpretive Provisions
52
Section 1.03. Accounting Terms
52
Section 1.04. Times of Day
53
Section 1.05. Timing of Payment or Performance
53
Section 1.06. Letter of Credit Amounts
53
Section 1.07. Reserves
53
Section 1.08. Pro Forma Calculations
53
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. Loans
54
Section 2.02. Borrowings, Conversions and Continuations of Loans
54
Section 2.03. Protective Advances
56
Section 2.04. Letters of Credit
56
Section 2.05. Swingline Loans
64
Section 2.06. Prepayments
66
Section 2.07. Termination or Reduction of Commitments
68
Section 2.08. Repayment of Loans
68
Section 2.09. Interest
68
Section 2.10. Fees
69
Section 2.11. Computation of Interest and Fees
69
Section 2.12. Evidence of Debt
69
Section 2.13. Payments Generally; Administrative Agent’s Clawback
70
Section 2.14. Sharing of Payments by Lenders
71
Section 2.15. Increase in Facility
72
Section 2.16. Defaulting Lender
73
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes
75
Section 3.02. Illegality
78
Section 3.03. Inability to Determine Rates
79
Section 3.04. Increased Costs; Reserves on Eurocurrency Rate Loans
79
Section 3.05. Compensation for Losses
81
Section 3.06. Mitigation Obligations; Replacement of Lenders
82

i
    


Section 3.07. Survival
82
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01. Conditions of Effectiveness
82
Section 4.02. Conditions to All Credit Extensions
85
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Existence, Qualification and Power
86
Section 5.02. Authorization; No Contravention
86
Section 5.03. Governmental Authorization
86
Section 5.04. Binding Effect
87
Section 5.05. Financial Statements; No Material Adverse Effect
87
Section 5.06. Litigation
87
Section 5.07. No Default
88
Section 5.08. Ownership and Identification of Property
88
Section 5.09. Environmental Compliance
88
Section 5.10. Insurance
89
Section 5.11. Taxes
89
Section 5.12. ERISA Compliance
89
Section 5.13. Subsidiaries
90
Section 5.14. Margin Regulations; Investment Company Act
90
Section 5.15. Disclosure
90
Section 5.16. Compliance with Laws
90
Section 5.17. Anti-Corruption; Sanctions; Terrorism Laws
90
Section 5.18. Intellectual Property; Licenses, Etc
91
Section 5.19. Collateral Documents
91
Section 5.20. Mines
92
Section 5.21. Solvency
92
Section 5.22. Labor Relations
92
Section 5.23. Agreements
92
Section 5.24. Senior Debt
92
Section 5.25. Use of Proceeds
92
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01. Financial Statements
93
Section 6.02. Certificates; Other Information
93
Section 6.03. Notices
96
Section 6.04. Payment of Obligations
96
Section 6.05. Preservation of Existence
96
Section 6.06. Maintenance of Properties
96

ii
    


Section 6.07. Maintenance of Insurance
97
Section 6.08. Compliance with Laws
97
Section 6.09. Books and Records
98
Section 6.10. Inspection Rights; Field Exams; Appraisals
98
Section 6.11. Use of Proceeds
99
Section 6.12. Additional Guarantors
99
Section 6.13. Unrestricted Subsidiaries
99
Section 6.14. Preparation of Environmental Reports
99
Section 6.15. Certain Long Term Liabilities and Environmental Reserves
99
Section 6.16. Covenant to Give Security
100
Section 6.17. Information Regarding Collateral
102
Section 6.18. Senior Debt
102
Section 6.19. Administration of Accounts
102
Section 6.20. Cash Management System
102
Section 6.21. Post-Closing Covenants
103
ARTICLE VII
NEGATIVE COVENANTS
Section 7.01. Liens
103
Section 7.02. Investments
106
Section 7.03. Indebtedness
108
Section 7.04. Fundamental Changes
111
Section 7.05. Dispositions
111
Section 7.06. Restricted Payments
113
Section 7.07. Accounting Changes; Change in Nature of Business; Foreign Operations
115
Section 7.08. Transactions With Affiliates
115
Section 7.09. Use of Proceeds
116
Section 7.10. Burdensome Agreements
116
Section 7.11. Fiscal Year
117
Section 7.12. Sale and Lease-Backs
117
Section 7.13. Amendments or Waivers to Certain Agreements
117
Section 7.14. No Further Negative Pledge
118
Section 7.15. Anti-Corruption; Sanctions; Terrorism Laws
118
Section 7.16. [Reserved]
118
Section 7.17. Minimum Fixed Charge Coverage Ratio
118
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default
118
Section 8.02. Remedies Upon Event of Default
120
Section 8.03. Exclusion of Immaterial Subsidiaries
121
Section 8.04. Application of Funds
121

iii
    


ARTICLE IX
ADMINISTRATIVE AGENT
Section 9.01. Appointment
122
Section 9.02. Delegation of Duties
123
Section 9.03. Liability of Agents
123
Section 9.04. Reliance by the Administrative Agent
124
Section 9.05. Notice of Default
125
Section 9.06. Credit Decision; Disclosure of Information by Agents
125
Section 9.07. Indemnification of the Administrative Agent
126
Section 9.08. Withholding Tax
126
Section 9.09. Administrative Agent in Its Individual Capacity
126
Section 9.10. Resignation by the Administrative Agent
128
Section 9.11. Administrative Agent May File Proofs of Claim
129
Section 9.12. Collateral and Guaranty Matters
129
Section 9.13. Arrangers and Bookrunners
130
Section 9.14. Appointment of Supplemental Collateral Agents
130
Section 9.15. Reports and Financial Statements
131
Section 9.16. Posting of Approved Electronic Communications
132
ARTICLE X
GUARANTEE
Section 10.01. Guarantee
133
Section 10.02. Right of Contribution
134
Section 10.03. No Subrogation
134
Section 10.04. Amendments, etc
134
Section 10.05. Guarantee Absolute and Unconditional
135
Section 10.06. Waiver by Guarantors
136
Section 10.07. Release of Liens and Release of Guaranty
136
Section 10.08. Subordination of Other Obligations
137
Section 10.09. Authority of Guarantors or Borrowers
138
Section 10.10. Financial Condition of Borrowers
138
Section 10.11. Taxes and Payments
138
Section 10.12. Assignments
138
Section 10.13. Reinstatement
138
Section 10.14. Keepwell
138
ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments, Etc
139
Section 11.02. Notices; Effectiveness; Electronic Communications
141
Section 11.03. No Waiver; Cumulative Remedies
142
Section 11.04. Expenses; Indemnity; Damage Waiver
143

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Section 11.05. Payments Set Aside
145
Section 11.06. Successors and Assigns
146
Section 11.07. Treatment of Certain Information; Confidentiality
149
Section 11.08. Right of Setoff
150
Section 11.09. Usury Saving Clause
150
Section 11.10. Counterparts; Integration; Effectiveness
151
Section 11.11. Survival of Representations and Warranties
151
Section 11.12. Severability
151
Section 11.13. Replacement of Lenders
151
Section 11.14. Governing Law; Jurisdiction; Etc
152
Section 11.15. Waiver of Jury Trial
153
Section 11.16. Designation of Secured Agreements
153
Section 11.17. No Advisory or Fiduciary Responsibility
154
Section 11.18. Joint and Several Liability
154
Section 11.19. Contribution and Indemnification Among the Borrowers
155
Section 11.20. Agency of the Borrower Representative for Each Other Borrower
156
Section 11.21. USA Patriot Act Notice
156
Section 11.22. Time of the Essence
156
Section 11.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions
156
Section 11.24. Intercreditor Agreement
157






v
    


SCHEDULES
1.01(a)    Guarantors
1.01(b)    Excluded Wyoming Properties
1.01(d)    Reserve Areas
2.01    Commitments and L/C Sublimit
5.03    Governmental Authorization
5.08(b)    Material Owned Real Property
5.08(c)    Material Leased Real Property
5.09    Environmental Matters
5.13    Subsidiaries
5.18    Intellectual Property
5.20    Mines
6.21    Post Closing Schedule
7.01    Existing Liens
7.02    Existing Investments
7.03    Existing Indebtedness
7.08    Transactions with Affiliates
7.10    Burdensome Agreements
11.02    Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS
Form of
A    Borrowing Notice
B    Notice of Conversion or Continuation
C    Note
D    Swingline Loan Notice
E    Compliance Certificate
F    Assignment and Acceptance
G    Borrowing Base Certificate
H    Security Agreement
I    Collateral Questionnaire
J    Collateral Questionnaire Supplement
K    Assumption Agreement
L    Solvency Certificate
M-1    U.S. Tax Compliance Certificate
M-2    U.S. Tax Compliance Certificate
M-3    U.S. Tax Compliance Certificate
M-4    U.S. Tax Compliance Certificate



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ASSET-BASED REVOLVING CREDIT AGREEMENT
This ASSET-BASED REVOLVING CREDIT AGREEMENT (this “ Agreement ”) is entered into as of April 3, 2017 among each of Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura Capp Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Borrowers ”), each Guarantor party hereto, each lender from time to time party hereto, CITIBANK, N.A., as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”), CITIBANK, N.A., as Swingline Lender, and CITIBANK, N.A., BMO HARRIS BANK N.A. and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as L/C Issuers.
INTRODUCTORY STATEMENT
WHEREAS, the Borrowers have requested that the Lenders and L/C Issuers make available for the purposes specified in this Agreement a revolving credit facility;
WHEREAS, the Lenders have agreed to provide, a senior secured asset-based revolving credit facility in an aggregate principal amount of $125,000,000 (the “ Facility ”) as set forth herein. All of the Borrowers’ obligations under the Facility are to be guaranteed by the Guarantors. The Lenders are willing to extend or continue, as the case may be, such credit to the Borrowers on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01.      Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:
“ ABL Cash Collateral Account ” means the account established by, and under the sole dominion and control of, the Administrative Agent maintained with the Administrative Agent or a bank affiliate of the Administrative Agent or any other bank reasonably acceptable to the Administrative Agent and designated by the Borrowers as the “Contura Collateral Account”.
“ ABL Priority Collateral ” has the meaning assigned to such term in the Term Loan Intercreditor Agreement.
“ Acceptable Credit Support ” means (a) a credit insurance policy satisfactory to the Administrative Agent in its Reasonable Credit Judgment (including, without limitation, as to the creditworthiness of the insurance company issuing such policy, the scope and amount of coverage, any deductibles and any other terms and conditions applicable thereto), so long as the limits and terms of such credit insurance policy are being complied with and for which the Administrative Agent is named as the beneficiary, loss payee or additional insured so as to insure that the Administrative Agent has the right to receive payments thereunder (it being understood that the existing credit insurance policies issued by AIG and XL Specialty Insurance Company are satisfactory to the Administrative Agent) or (b) (i) an irrevocable

2


letter of credit from BMO or U.S. Bank, National Association or (ii) an irrevocable letter of credit satisfactory to the Administrative Agent in its Reasonable Credit Judgment (including, without limitation, as to the issuer or domestic confirming bank with respect thereto, and the form and substance thereof), in each case, that has been delivered to the Administrative Agent.
“ Acceptable Foreign Jurisdiction ” means each of Luxembourg, Italy, Spain, France, Sweden, Austria, Finland, Germany and Switzerland.
“ Accommodation Payment ” has the meaning specified in Section 11.19.
“ Account ” has the meaning specified in the UCC.
“ Account Debtor ” has the meaning given to such term in the UCC.
“ Accounting Change ” means changes in accounting principles adopted or implemented after the Closing Date required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board or, if applicable, the SEC.
“ Acknowledgment Letter ” means an acknowledgment, in form and substance reasonably acceptable to the Administrative Agent from an Account Debtor stating that (a) the applicable Borrower has pledged or assigned to the Collateral Agent a security interest in all of its rights to such Account and the right to receive payments thereunder and (b) the Account Debtor agrees to waive all rights of set-off and recoupment against the applicable Borrower and to make all payments in respect of such Account into a Control Account identified by the Administrative Agent or, following receipt of a written notice from the Administrative Agent that an Event of Default has occurred and is continuing, directly to an account of the Administrative Agent.
“ Acquired Assets ” has the meaning specified in the definition of “Permitted Acquisition.”
“ Acquired Entity ” has the meaning specified in the definition of “Permitted Acquisition.”
“ Activities ” has the meaning specified in Section 9.09(b).
“ Additional Lender ” has the meaning specified in Section 2.15(b).
“ Additional Pari passu Debt ” has the meaning specified in the Term Loan Intercreditor Agreement.
“ Administrative Agent ” has the meaning specified in the preamble hereto.
“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account of the Administrative Agent as the Administrative Agent may from time to time notify in writing to the Borrowers and the Lenders.
“ Administrative Questionnaire ” means an Administrative Questionnaire in a form reasonably acceptable to the Administrative Agent.
“ Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

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“ Agent Affiliate ” has the meaning specified in Section 9.16(c).
“ Agent Parties ” has the meaning specified in Section 11.02(c).
“ Agent’s Group ” has the meaning specified in Section 9.09(b).
“ Agents ” means the Administrative Agent and the Collateral Agent.
“ Agreement ” has the meaning assigned in the preamble hereto.
“ Anti-Corruption Laws ” has the meaning specified in Section 5.17(c).
“ Applicable Commitment Fee Rate ” means (i) on any date on which Availability is less than 50% of the aggregate Commitments, 0.375% times the actual daily amount by which the aggregate Commitments of all Lenders exceed the sum of (A) the Outstanding Amount of Loans (excluding any Outstanding Amount of Swingline Loans) and (B) the Outstanding Amount of L/C Obligations, determined as of the last day of the immediately preceding fiscal quarter, or (ii) on any date on which Availability is equal to greater than or equal to 50% of the aggregate Commitments, 0.25% times the actual daily amount by which the aggregate Commitments of all Lenders exceed the sum of (A) the Outstanding Amount of Loans (excluding any Outstanding Amount of Swingline Loans) and (B) the Outstanding Amount of L/C Obligations, determined as of the last day of the immediately preceding fiscal quarter.
“ Applicable Percentage ” means, with respect to any Lender, the percentage (carried out to the ninth decimal place) of the Facility represented by such Lender’s Commitment at such time (or, if the Commitment of each Lender shall have been terminated or expired, then the percentage of Total Outstandings represented by the aggregate Outstanding Amount of such Lender’s Loans and L/C Obligations). The initial Applicable Percentage of each Lender in respect of the Facility is set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable.
“ Applicable Rate ” means, as of any date of determination, a per annum rate equal to (a) for the period commencing on the Closing Date through the last day of the first full fiscal quarter ending after the Closing Date, (i) for Eurocurrency Rate Loans, 2.50% and (ii) for Base Rate Loans, 1.50% and (b) thereafter, the rate set forth below under the applicable Type of Loan and opposite the applicable Availability, based on the average daily Availability during the fiscal quarter most recently ended immediately preceding such date, as a percentage of the Maximum Revolving Credit:
Category
Average Quarterly Availability
(% Of Maximum Revolving Credit)
Eurocurrency Loans
Base Rate Loans
I
Greater than or equal to 66%
2.00%
1.00%
II
Less than 66% and greater than or equal to 33%
2.25%
1.25%
III
Less than 33%
2.50%
1.50%

Any increase or decrease in the Applicable Rate resulting from a change in Availability shall become effective as of the first calendar day of each fiscal quarter. Availability shall be calculated by the Administrative Agent based on the Borrowing Base Certificates of the Borrowers delivered pursuant to Section 6.02(f) in respect of the calendar month ending on the last day of such fiscal quarter. Notwithstanding anything to the contrary set forth in this Agreement (including the then effective Availability), if the Borrowers shall fail to deliver such Borrowing Base Certificate within any of the time

4
    


periods specified in Section 6.02(f), the Applicable Rate from and including the 20th day after the end of the applicable month or, during a Liquidity Period, the 3rd Business Day after the end of the applicable week, as the case may be, to but not including the date the Borrowers deliver to the Administrative Agent such Borrowing Base Certificate shall equal the highest possible Applicable Rate provided for by this definition.
“ Appraisal ” means, as applicable, (i) the appraisal delivered to the Administrative Agent on or prior to the Closing Date, or (ii) any appraisal in form and substance reasonably satisfactory to the Administrative Agent in its Reasonable Credit Judgment delivered to the Administrative Agent pursuant to Section 6.10(b).
“ Approved Appraiser ” means Hilco or any other appraiser reasonably acceptable to the Administrative Agent in consultation with the Company.
“ Approved Electronic Communications ” means each notice, demand, communication, information, document and other material that any Loan Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, including (a) any supplement to the Agreement, any joinder to any Collateral Document and any other written Contractual Obligation delivered or required to be delivered in respect of any Loan Document or the transactions contemplated therein and (b) any Financial Statement, financial and other report, notice, request, certificate and other information material; provided, however, that, “Approved Electronic Communication” shall exclude (i) any notice of Borrowing, conversion or continuation, and any other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing, Borrowing, (ii) any notice pursuant to Section 2.06 and any other notice relating to the payment of any principal or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Article IV or any other condition to any Borrowing hereunder or any condition precedent to the effectiveness of this Agreement.
“ Approved Electronic Platform ” has the meaning specified in Section 9.16(a).
“ Approved Field Examiner ” means the Administrative Agent (or any of its Affiliates), KPMG, FTI or any other field examiner reasonably acceptable to the Administrative Agent in consultation with the Company.
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“ Arrangers ” means Citigroup Global Markets Inc., BMO Capital Markets Corp. and Credit Suisse Securities (USA) LLC each in its capacity as joint lead arranger and joint bookrunner.
“ Asset Sale ” means any Disposition or series of related Dispositions of property by the Company or any of its Restricted Subsidiaries to any Person; provided that “Asset Sale” shall exclude any Disposition or series of related Dispositions with a fair market value of less than $5,000,000; provided, further, that “Asset Sale” shall exclude the sale or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof.
“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)),

5
    


and accepted by the Administrative Agent, substantially in the form of Exhibit F or any other form approved by the Administrative Agent.
“ Assumption Agreement ” means an assumption agreement substantially in the form of Exhibit K.
“ Attributable Indebtedness ” means, on any date, in respect of any Capital Lease Obligations of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“ Audited Financial Statements ” means the audited consolidated balance sheet of the Company and its Subsidiaries for the period from July 26, 2016 through December 31, 2016 and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such period in respect of the Company and its Subsidiaries.
“ Auto-Extension Letter of Credit ” has the meaning specified in Section 2.04(c)(iii).
“ Auto-Reinstatement Letter of Credit ” has the meaning specified in Section 2.04(c)(iv).
“ Availability ” means, at any time of determination, the Maximum Revolving Credit at such time minus the Total Outstandings at such time.
“ Availability Period ” means the period from and including the Closing Date to but not including the Termination Date.
“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“ Bankruptcy Code ” means The Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
“ Base Rate ” means, for any day, in relation to a Loan in Dollars, a rate per annum equal to, the highest of (a) the rate of interest in effect for such day publicly announced from time to time by the Administrative Agent as its base rate in effect in New York, New York; each change in such prime rate shall be effective on the date such change is publicly announced as effective, (b) the Federal Funds Rate for such day plus 0.50% and (c) the Eurocurrency Rate applicable for an Interest Period of one month plus 1.00%.
“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.
“ Beneficiary ” means the Administrative Agent and the Arrangers, Lender and L/C Issuer.
“ Blocked Account Agreement ” means, with respect to any Deposit Account, Securities Account, Commodities Contract or Commodities Account of any Loan Party, an agreement among the Administrative Agent, the Term Loan Agent, such Loan Party (other than, in each case, any Excluded Account) and such depository bank, securities intermediary or commodity intermediary, as applicable, sufficient to grant “control” to the Administrative Agent (a) under 9-104 of the UCC with respect to any Deposit Account,

6
    


(b) under 9-106 of the UCC with respect to any Commodities Contract or Commodities Account or (c) under 8-106 of the UCC with respect to any Securities Account, in each case, subject to the Term Loan Intercreditor Agreement.
“ Borrower Materials ” has the meaning specified in Section 9.16(e).
“ Borrower Obligations ” means the Obligations of the Borrowers.
“ Borrower Representative ” has the meaning specified in Section 11.20.
“ Borrowers ” has the meaning specified in the preamble hereto.
“ Borrowing ” means any (a) borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders, (b) Swingline Loan or (c) Protective Advance.
“ Borrowing Base ” means, at any time:
(a)    the sum of:
(i)    eighty-five percent (85%) of the Eligible Billed Accounts of the Borrowers, plus
(ii)    seventy-five percent (75%) of the Eligible Unbilled Accounts of the Borrowers; provided, in no event shall the aggregate amount included in the Borrowing Base under this clause (ii) exceed the lesser of (A) $20,000,000 and (B) an amount equal to 50.0% of the aggregate amount of Eligible Billed Accounts and Eligible Unbilled Accounts included in the Borrowing Base under clauses (i) and (ii), respectively, at such time plus
(iii)    the lesser of (A) eighty-five percent (85%) of the remainder of Inventory Value of the Eligible Coal Inventory of the Borrowers and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of the Eligible Coal Inventory of the Borrowers; provided, in no event shall the aggregate amount included in the Borrowing Base under this clause (iii) exceed 50.0% of the aggregate amount of the Borrowing Base in effect at such time, plus
(iv)    one hundred percent (100%) of Qualified Cash of the Borrowers, minus
(b)    to the extent not included in the calculation of clauses (a)(i) through (a)(iv) above, inclusive, any Reserves then in effect.
For the avoidance of doubt, the specified percentage set forth in this definition of “Borrowing Base” will not be reduced without the consent of the Borrowers.
“ Borrowing Base Certificate ” means a certificate substantially in the form of Exhibit G (with such changes therein as may be required in writing by the Administrative Agent, in its Reasonable Credit Judgment, to reflect the components of, and Reserves against, the Borrowing Base from time to time), executed and certified as accurate and complete in all material respects by a Responsible Officer of the Company, which shall include detailed calculations as to the Borrowing Base as reasonably requested by the Administrative Agent.

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“ Borrowing Base Collateral ” means the Collateral of the Borrowers of the type included in clauses (a)(i) through (a)(v), inclusive, of the definition of “Borrowing Base”.
“ Borrowing Notice ” means a notice of a Borrowing, pursuant Section 2.02, which, if in writing, shall be substantially in the form of Exhibit A.
“ Building ” means a Building as defined in 12 CFR Chapter III, Section 339.2.
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.
“ Capital Expenditures ” means any expenditure that, in accordance with GAAP, is or should be included in “purchase of property and equipment” or similar items, or which should otherwise be capitalized, reflected in the consolidated statement of cash flows of the Company and its Restricted Subsidiaries; provided that Capital Expenditure shall not include any expenditure (i) for replacements and substitutions for fixed assets, capital assets or equipment to the extent made with “Extraordinary Receipts” (as defined in the Term Loan Credit Agreement) invested pursuant to Section 2.06(b) of the Term Loan Credit Agreement or with “Net Proceeds” (as defined in the Term Loan Credit Agreement) invested pursuant to Section 2.03(b) of the Term Loan Credit Agreement or (ii) which constitute a Permitted Acquisition.
“ Capital Lease Obligations ” means of any Person as of the date of determination, the aggregate liability of such Person under Financing Leases reflected as liability on a balance sheet of such Person prepared in accordance with GAAP.
“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing, but excluding any securities convertible into or exchangeable for shares of Capital Stock.
“ Cash Collateralize ” or “ Cash Collateralization ” means (a) to pledge to the Administrative Agent and deposit in a L/C Cash Collateral Account, for the benefit of the applicable L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances in an amount equal to 103% of the L/C Obligations pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer (which documents are hereby consented to by the Lenders), or (b) to deliver to the applicable L/C Issuer a backstop letter of credit (in form and substance reasonably satisfactory to the L/C Issuer and the Administrative Agent, and issued by a U.S. commercial bank acceptable to each of such L/C Issuer and the Administrative Agent, in their commercially reasonable discretion). Derivatives of such term have corresponding meanings.
“ Cash Equivalents ” means
(a)
U.S. Government Obligations or certificates representing an ownership interest in U.S. Government Obligations with maturities not exceeding two years from the date of acquisition,
(b)
(i) demand deposits, (ii) time deposits and certificates of deposit with maturities of two years or less from the date of acquisition, (iii) bankers’ acceptances with maturities not

8
    


exceeding two years from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank or trust company organized or licensed under the laws of the United States or any state thereof (including any branch of a foreign bank licensed under any such laws) having capital, sur plus and undivided profits in excess of $250,000,000 (or the foreign currency equivalent thereof) whose short-term debt is rated A-2 or higher by S&P or P-2 or higher by Moody’s,
(c)
commercial paper maturing within 364 days from the date of acquisition thereof and having, at such date of acquisition, ratings of at least A-1 by S&P or P-1 by Moody’s,
(d)
readily marketable direct obligations issued by any state, commonwealth or territory of the U.S. or any political subdivision thereof, in each case rated at least A-1 by S&P or P‑1 by Moody’s with maturities not exceeding one year from the date of acquisition,
(e)
bonds, debentures, notes or other obligations with maturities not exceeding two years from the date of acquisition issued by any corporation, partnership, limited liability company or similar entity whose long-term unsecured debt has a credit rate of A2 or better by Moody’s and A or better by S&P;
(f)
investment funds at least 95% of the assets of which consist of investments of the type described in clauses (a) through (e) above (determined without regard to the maturity and duration limits for such investments set forth in such clauses, provided that the weighted average maturity of all investments held by any such fund is two years or less),
(g)
fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (b) above and
(h)
in the case of a Restricted Subsidiary that is a Foreign Subsidiary, substantially similar investments, of comparable credit quality, denominated in the currency of any jurisdiction in which such Person conducts business.
“ Cash Management Agreement ” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“ Cash Management Bank ” means (a) a Lender or an Affiliate of a Lender that is a party to a Cash Management Agreement on the Closing Date or (b) any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in each case, in its capacity as a party to such Secured Cash Management Agreement.
“ Cash Management Obligations ” means any and all obligations of the Company or any Restricted Subsidiary arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from the deposit accounts of the Company and/or any Restricted Subsidiary, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, (c) any other treasury, deposit, disbursement, overdraft, and cash management services afforded to the Company or any Restricted Subsidiary, and (d) stored value card, commercial credit card and merchant card services.

9
    


“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request or directive (whether or not having the force of law) by any Governmental Authority required to be complied with by any Lender. For purposes of this definition, (x) the Dodd-Frank Act and any rules, regulations, orders, requests, guidelines and directives adopted, promulgated or implemented in connection therewith, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to have been adopted, issued, promulgated or implemented after the Closing Date, but shall be included as a Change in Law only to the extent a Lender is imposing applicable increased costs or costs in connection with capital adequacy and other requirements similar to those described in Sections 3.04(a) and (b) generally on other similarly situated borrowers of loans under United States credit facilities.
“ Change of Control ” means:
(a)    prior to a Qualifying IPO, an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of a majority or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Borrower;
(b)    after a Qualifying IPO, an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis; or
(c)    a “Change of Control” as defined in the Term Loan Credit Documents, in each case, as amended, restated, modified, replaced, or refinanced from time to time.
“ Chattel Paper ” has the meaning specified in the UCC.
“ Chesapeake Bay Piers ” is located at Curtis Bay Piers, 1910 Benhill Avenue, Baltimore, Maryland 21226.
“ Clean Coal ” means Coal having been extracted from a Mine and having been put through the washing process.
“ Closing Date ” means the first date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01.
“ Coal ” means (i) coal owned by the Company or any of its Subsidiaries, or coal that the Company or any of its Subsidiaries has the right to extract, in each case located on, under or within, or produced or

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severed from the real property owned by, or leased or licensed to, the Company or any of its Subsidiaries and (ii) coal purchased by the Company or any of its Subsidiaries from a third party.
“ Coal Act ” means the Coal Industry Retiree Health Benefit Act of 1992, 26 U.S.C. §§ 9701, et seq., as amended.
“ Coal Inventory ” means any Inventory consisting of Coal.
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.
“ Collateral ” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for all or any part of the Obligations (subject to exceptions contained in the Collateral Documents), in each case excluding any Excluded Assets.
“ Collateral Agent ” means Citibank, N.A., in its capacity as the collateral agent.
“ Collateral Documents ” means, collectively, the Security Agreement, the Mortgages and each of the mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties as security for the Obligations.
“ Collateral Questionnaire ” means a Collateral Questionnaire substantially in the form of Exhibit I or any other form approved by the Administrative Agent, as such Collateral Questionnaire may be amended, restated, supplemented or otherwise modified from time to time.
“ Collateral Questionnaire Supplement ” means a supplement to the Collateral Questionnaire substantially in the form of Exhibit J.
“ Commercial Tort Claim ” has the meaning specified in the UCC.
“ Commitment ” means, as to each Lender, the amount set forth under the caption “Commitment” opposite such Lender’s name on Schedule 2.01, or, as the case may be, opposite such caption in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Commitments as of the Closing Date is $125,000,000.
“ Commitment Fee ” has the meaning specified in Section 2.10(a).
“ Commodities Account ” has the meaning specified in the UCC.
“ Commodities Contact ” has the meaning specified in the UCC.
“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“ Company ” means Contura Energy, Inc., a Delaware corporation.
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit E.

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“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“ Consolidated EBITDA ” means, as of the last day of any period, Consolidated Net Income for such period plus , without duplication (i) consolidated interest expense, determined in accordance with GAAP; (ii) to the extent deducted in computing such Consolidated Net Income, the sum of all income, franchise or similar taxes (and less income tax benefits); (iii) depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of acquisition accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period); (iv) non-recurring restructuring costs, expenses and charges, including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and professional fees and stay and retention bonuses; provided that the amount of non-recurring restructuring costs, expenses and charges permitted to be added back pursuant to this clause (iv) for a four-quarter period shall not exceed 20% of Consolidated EBITDA for such period (calculated before giving effect to such add-back); (v) any expenses, costs or charges related to any equity offering, Investment permitted under Section 7.02, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful); (vi) all non- recurring or unusual losses, charges and expenses (and less all non-recurring or unusual gains); (vii) all non-cash charges and expenses; (viii) any debt extinguishment costs; (ix) any amount of asset retirement obligations expenses; (x) all Transaction Costs incurred in connection with the Transactions contemplated hereby; (xi) transaction costs, fees and expenses incurred during such period in connection with any acquisition or disposition not prohibited hereunder or any issuance of debt or equity securities by the Company or any of its Restricted Subsidiaries, in each case, for such expenses; and (xii) commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income. Notwithstanding the foregoing, Consolidated EBITDA for the fiscal quarters ended March 31, 2016 , June 30, 2016, September 30, 2016 and December 31, 2016 shall be deemed to be $24,500,000, $24,500,000, $39,400,000 and $103,500,000, respectively.
“ Consolidated Net Income ” means, for any period, the net income (or loss) attributable to the Company and its Restricted Subsidiaries (unless another Person is expressly indicated) for that period, determined in accordance with GAAP, excluding, without duplication, (a) noncash compensation expenses related to common stock and other equity securities issued to employees, (b) extraordinary or non-recurring gains and losses, (c) income or losses from discontinued operations or disposal of discontinued operations or costs and expenses associated with the closure of any mines (including any reclamation or disposal obligations), (d) any non-cash impairment charges or asset write-off resulting from the application of ASC 320 Investments-Debt and Equity Securities, ASC 323 Investments-Equity Method and Joint Ventures, ASC 350 Intangibles—Goodwill and Other and ASC 360 Property, Plant and Equipment and any future or similar ASC standards relating to impairment, (e) net unrealized gains or losses resulting in such period from non-cash foreign currency remeasurement gains or losses, (f) net unrealized gains or losses resulting in such period from the application ASC 815 Derivatives and Hedging, in each case, for such period, (g) non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles, (h) any net income (or loss) for such period of any Person that is not a Restricted Subsidiary or is otherwise not a Subsidiary of such Person or that is accounted for by the equity method of accounting except to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person, and (i) the net income (but not loss) of any Restricted Subsidiary to the extent

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that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders (other than any restriction that has been waived or released); plus , without duplication, any cash dividends and/or distributions actually received by the Company or a Restricted Subsidiary from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein.
“ Consolidated Net Tangible Assets ” means, as of any particular time, the total of all the assets appearing on the most recent consolidated balance sheet prepared in accordance with GAAP of the Company and the Restricted Subsidiaries as of the end of the last fiscal quarter for which financial information is available (less applicable reserves and other properly deductible items) after deducting from such amount (i) all current liabilities, including current maturities of long-term debt and current maturities of obligations under Financing Leases (other than any portion thereof maturing after, or renewable or extendable at the option of the Company or the relevant Restricted Subsidiary beyond, twelve months from the date of determination); and (ii) the total of the net book values of all assets of the Company and its Restricted Subsidiaries properly classified as intangible assets under GAAP (including goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets).
“ Contingent Credit Support Agreement ” means that certain loan agreement, dated as of July 26, 2016, by and between ANR, Inc., as borrower, and the Company, as lender (as amended, restated supplemented or otherwise modified from time to time).
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
“ Control Account ” has the meaning specified in Section 6.20(a).
“ Controlled Subsidiary ” means, with respect to any consent, waiver or right to terminate or accelerate the obligations under a Contractual Obligation, any Subsidiary that the Company directly or indirectly Controls for purposes of the provision of such consent, waiver or exercise of such right to terminate or accelerate the obligations under such Contractual Obligation.
“ Copyright Security Agreement ” means the Copyright Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent and the Company, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.
“ Credit Extension ” means each of the following: (a) a Borrowing or (b) an L/C Credit Extension.
“ Debt Rating ” means, as of any date of determination, the monitored rating as determined by S&P and Moody’s of a Person’s non-credit-enhanced, senior unsecured long-term debt.
“ Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,

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reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“ Default Rate ” means, at any time:
(a)    when used with respect to any of the Obligations (other than Eurocurrency Rate Loans and Letter of Credit Fees), an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans (whether or not any Base Rate Loans are outstanding at such time) plus (iii) 2.00% per annum;
(b)    when used with respect to any Eurocurrency Rate Loan, an interest rate equal to (i) the interest rate (including any Applicable Rate) otherwise applicable to such Eurocurrency Rate Loan plus (ii) 2.00% per annum; and
(c)    when used with respect to Letter of Credit Fees, a rate equal to (i) the Applicable Rate applicable to Base Rate Loans (whether or not any Base Rate Loans are outstanding at such time) plus (ii) 2.00% per annum.
“ Defaulting Lender ” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified any of the Borrowers, the Administrative Agent, any L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or any of the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a

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Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrowers, each L/C Issuer, the Swingline Lender and each Lender.
“ Delivery at Possession Inventory ” means all Eligible Coal Inventory in transit for delivery to a customer of the Borrowers for which title remains in such Borrower until delivery has occurred under the applicable customer contract, regardless of whether the Coal is physically located in the United States.
“ Deposit Account ” has the meaning specified in the UCC.
“ Designated Amount ” has the meaning specified Section 11.16(a).
“ Designated Letters of Credit ” means letters of credit issued with respect to Mine reclamation, workers’ compensation and other employee benefit liabilities.
“ Designated Non-Cash Consideration ” means the fair market value (as reasonably determined by the Company in good faith) of non-cash consideration received by the Company or any of its Restricted Subsidiaries in connection with a Disposition that is so designated as “Designated Non-Cash Consideration” minus the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
“ Designation Notice ” has the meaning specified in Section 11.16(a).
“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any real property leases, notes or accounts receivable or any rights and claims associated therewith.
“ Disqualified Equity Interest ” means Equity Interests that by their terms (or by the terms of any security into which such Equity Interests are convertible, or for which such Equity Interests are exchangeable, in each case at the option of the holder thereof) or upon the happening of any event (i) mature or are mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or are required to be redeemed or redeemable at the option of the holder for consideration other than Qualified Equity Interests, or (ii) are convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Indebtedness, in each case of clauses (i) and (ii) prior to the date that is 91 days after the final Maturity Date hereunder, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations.
“ Disqualified Institution ” means (i) any competitors of the Company identified by the Company to the Administrative Agent by name in writing from time to time and (ii) affiliates of the foregoing that are readily identifiable solely on the basis of similarity of their names; provided that (x) in the case of clauses (i) and (ii) herein, “Disqualified Institutions” shall not include any bona fide diversified debt fund or a diversified investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course; (y) neither Administrative Agent nor any Arranger shall have any responsibility for monitoring compliance with any provisions of this Agreement with respect to Disqualified Institutions and (z) updates to the Disqualified Institution schedule shall not retroactively invalidate or otherwise affect any (A) assignments or participations made to, (B) any trades entered into with or (C) information provided to any Person before

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it was designated as a Disqualified Institution. It is acknowledged and agreed by the Company that the identity of Disqualified Institutions will be made available to the Lenders.
“ Document ” has the meaning specified in the UCC.
“ Dodd-Frank Act ” means the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) signed into law on July 21, 2010, as amended from time to time.
“ Dollar ” and “ $ ” mean lawful money of the United States.
“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of the United States or any State thereof or the District of Columbia; provided that in no event shall any such Subsidiary that is a Subsidiary of a Foreign Subsidiary be considered a “ Domestic Subsidiary ” for purposes of the Loan Documents.
“ DTA ” means Dominion Terminal Associates, a Virginia partnership.
“ DTA Coal Export Terminal ” is located at Dominion Terminal Associates, 600 Harbor Rd, Pier 11, Newport News, Virginia 23607.
“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ Eligible Accounts ” means, at any time of determination, the aggregate amount of all Accounts due to any of the Borrowers; provided that unless otherwise approved from time to time in writing by the Administrative Agent in its Reasonable Credit Judgment, no Account shall constitute an Eligible Account if, without duplication:
(a)    except as provided in clause (w) of this definition, such Account does not arise from the sale of goods or the performance of services by any of the Borrowers in the ordinary course of its business;
(b)    such Account is contingent in any respect or for any reason, or the applicable Borrower’s right to receive payment with respect to such Account is subject to or contingent upon the satisfaction of any condition whatsoever (other than the preparation and delivery of an invoice);
(c)    the Account Debtor with respect to such Account (i) has or has asserted a right of set-off, offset, deduction, defense, dispute, or counterclaim against any of the Borrowers (unless such Account Debtor has entered into a written agreement reasonably satisfactory to the Administrative Agent to waive such set-off, offset, deduction, defense, dispute, or counterclaim

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rights), (ii) has disputed its liability (whether by chargeback or otherwise) or made any claim with respect to the Account or any other Account of any of the Borrowers which has not been resolved, in each case of clause (i) and (ii), without duplication, only to the extent of the amount of such actual or asserted right of set-off, or the amount of such dispute or claim, as the case may be or (iii) is also a creditor or supplier of any of the Borrowers or any of its respective Subsidiaries (but only to the extent of such Borrower’s or such Subsidiary’s obligations to such Account Debtor from time to time), in each case, unless such Account Debtor has executed any non-offset agreement in form and substance reasonably satisfactory to the Administrative Agent;
(d)    such Account is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for the sale of goods to or services rendered for the applicable Account Debtor;
(e)    except in the case of any Unbilled Accounts, an invoice, in form and substance consistent with such Borrower’s credit and collection policies, or otherwise reasonably acceptable to the Administrative Agent, has not been sent to the applicable Account Debtor in respect of such Account within 30 days of such sale of Coal or provision of services (including Accounts identified as inactive, warranty or otherwise not attributable to an Account Debtor);
(f)    such Account (i) is not owned by a Borrower or (ii) is not subject to the first priority, valid and perfected security interest and Lien of Administrative Agent, for and on behalf of itself and the Lenders;
(g)    such Account is the obligation of an Account Debtor that is (i) a Borrower or any of its Affiliates, or any of their respective directors, officers, employees or agents or (ii) a natural Person;
(h)    such Account (i) is subject to a partial payment plan (other than a Permitted Partial Payment Plan), (ii) was not paid in full, and any Borrower created a new receivable for the unpaid portion of such Account or (iii) constitutes or is subject to chargebacks, debit memos and other adjustments for unauthorized deductions, without duplication, only to the extent of the amount of such actual or asserted chargeback, debit memo and other adjustment for unauthorized deductions;
(i)    such Account is created on “cash on delivery” terms, or on extended terms and is due and payable more than 90 days from the invoice date thereof;
(j)    such Account (i) is not paid within 60 days following the original due date or 90 days following the original invoice date or (ii) has been written off the books of any of the Borrowers or has otherwise been designated on such books as uncollectible;
(k)    the Account Debtor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due;
(l)    any Account Debtor obligated upon such Account is a debtor or a debtor in possession under any bankruptcy law or any other federal, state or foreign (including any provincial or territorial) receivership, insolvency relief or any other Debtor Relief Law, unless the payment with respect to such Account is supported by Acceptable Credit Support;
(m)    with respect to such Account (or any other Account due from the applicable Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance, or other

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instrument for the payment of money has been received, presented for payment and returned uncollected for any reason;
(n)    such Account is the obligation of an Account Debtor from whom 50% or more of the face amount of all Accounts owing by such Account Debtor are ineligible under clause (i) of this definition;
(o)    such Account is one as to which the Collateral Agent’s Lien attached thereon, for the benefit of itself and the other Secured Parties, is not a valid first priority perfected Lien;
(p)    Accounts as to which any of the representations or warranties in the Loan Documents with respect to such Accounts are untrue or inaccurate in any material respect (or, with respect to representations or warranties that are qualified by materiality, any of such representations and warranties are untrue or inaccurate);
(q)    such Account is evidenced by a judgment, Instrument or Chattel Paper, other than Instruments or Chattel Paper that are held by any of the Borrowers or that have been delivered to the Administrative Agent;
(r)    such Account is payable in any currency other than Dollars;
(s)    the Account Debtor with respect to such Account (i) is not organized under laws of the United States, any state thereof, the District of Columbia, Canada or any state or province thereof or the United Kingdom or (ii) is not located, resident or domiciled in, or does not maintain its chief executive office in, the United States, Canada or the United Kingdom; unless, in each case,
(i)    (x) the jurisdiction of organization of such Account Debtor and its location, residence, domicile and jurisdiction of its chief executive office is an Acceptable Foreign Jurisdiction, (y) the Account Debtor has an Investment Grade Rating and (z) the Administrative Agent has received an Acknowledgment Letter from the Account Debtor with respect to such Account; or
(ii)    payment with respect to such Account is supported by Acceptable Credit Support; or
(iii)    (x) the jurisdiction of organization of such Account Debtor and its location, residence, domicile and jurisdiction of its chief executive office is an Acceptable Foreign Jurisdiction and (y) the Account Debtor has an Investment Grade Rating; provided that the aggregate amount of all Accounts which may be Eligible Accounts pursuant to clause (iii) of this clause (s) shall not exceed $7,500,000 in the aggregate;
(t)    such Account is the obligation of an Account Debtor that is the United States government or a political subdivision thereof, or department, agency or instrumentality thereof, unless the applicable Borrower has duly assigned its rights to payments of such Account to the Administrative Agent pursuant to, and has other complied with, the Federal Assignment of Claims Act of 1940, as amended, and any other applicable state, county or municipal Law restricting assignment thereof, which assignments and any related documents and filings, shall be satisfactory to the Administrative Agent in its Reasonable Credit Judgment;

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(u)    such Account has been redated, extended, compromised, settled, adjusted or otherwise modified or discounted, except discounts or modifications that are granted by a Borrower in the ordinary course of business and that are reflected in the calculation of the Borrowing Base;
(v)    the Account Debtor with respect to such Account is located in a state of the United States of America requiring the filing of a notice of business activities report or similar report in order to permit a Borrower to seek judicial enforcement in such state of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a notice of business activities report or equivalent report for the then-current year or if such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost;
(w)    such Account was acquired or originated by a Person acquired in a Permitted Acquisition or other Investment (until such time as the Administrative Agent has completed a customary due diligence investigation as to such Accounts and such Person, which investigation may, in the Reasonable Credit Judgment of the Administrative Agent, include an appraisal and/or field examination, and the Administrative Agent is satisfied with the results thereof in its Reasonable Credit Judgment);
(x)    such Account (i) represents a sale on a bill-and-hold, guaranteed sale, sale and return, ship-and-return, sale on approval, consignment or other similar basis or (ii) was made pursuant to any other agreement providing for repurchases or return of any merchandise which has been claimed to be defective or otherwise unsatisfactory;
(y)    any such Account that is the obligation of an Account Debtor that is, to the knowledge of a Responsible Officer of the Company or the Administrative Agent, a Sanctioned Person;
(z)    any such Account that is subject to a restriction on assignment that is enforceable against third parties and that impairs the Collateral Agent’s Lien on such Account or the Administrative Agent’s ability to enforce the Account;
(aa) such Account is subject to any security deposit (to the extent received from the applicable Account Debtor), progress payment (other than pursuant to a Permitted Partial Payment Plan), retainage or other similar advance made by or for the benefit of the applicable Account Debtor, in each case to the extent thereof;
(bb) (i) any portion of an Account that was invoiced in advance of goods or services provided, (ii) such Account was invoiced twice or more, or (iii) the associated revenue has not been earned; or
(cc) except in the case of any Unbilled Accounts, the goods giving rise to such Account have not been shipped and/or title has not been transferred to the Account Debtor, or the Account represents a progress-billing or otherwise does not represent a complete sale; for purposes hereof, “progress-billing” means any invoice for goods sold or leased or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon the completion by a Borrower of any further performance under the contract or agreement;
In determining the amount of any Account, the face amount of such Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (A) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments,

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finance charges or other allowances (including any amount that any of the Borrowers may be obligated to rebate to a customer pursuant to the terms of any written agreement or understanding), (B) the aggregate amount of all limits and deductions provided for in this definition and elsewhere in the Loan Documents, if any, and (C) the aggregate amount of all cash received in respect of such Account but not yet applied by a Borrower to reduce the amount of such Account.
Notwithstanding the foregoing, if at any time the aggregate amount of all Accounts of any single Account Debtor and its Affiliates exceeds 25.0% of the aggregate amount of all Eligible Accounts, then the Accounts of such Account Debtor in excess of such percentage shall not be deemed “Eligible Accounts,” unless such Account is fully or partially supported by Acceptable Credit Support, except that any excess amounts will be Eligible Accounts to the extent such excess is supported by Acceptable Credit Support.
“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund that is, in the case of this clause (c), approved by each L/C Issuer; and (d) any other Person (other than a natural person) that is, in the case of this clause (d), approved by (i) the Administrative Agent, (ii) the Swingline Lender, (iii) each L/C Issuer and (iv) unless an Event of Default under Section 8.01(a), (f) or (g)    has occurred and is continuing, the Borrowers (each such approval not to be unreasonably withheld or delayed, provided that the Borrowers shall be deemed to have consented to the assignment to such Person if the Borrowers have not responded within 10 Business Days of a request for such approval); provided, further, that (i) in each case, unless an Event of Default has occurred and is continuing, an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending to the Borrower, without the imposition of any additional Indemnified Taxes and would not, at the time of such assignment, result in the Borrower becoming liable to pay any additional amount to such Person or any Governmental Authority pursuant to Section 3.01 or Section 3.04 and (ii) in no event shall any Borrower or its Subsidiaries, Defaulting Lender or Disqualified Institution be an “Eligible Assignee”.
“ Eligible Billed Account ” means, at any time of determination, each Eligible Account of the Borrowers for which an invoice has been sent to the applicable Account Debtor with respect to such Eligible Account.
“ Eligible Coal Inventory ” means any Coal Inventory of the Borrowers that constitutes Eligible Inventory.
“ Eligible Inventory ” means, at any time of determination, without duplication, the Inventory Value of all Coal Inventory of the Borrowers at such time; provided that unless otherwise from time to time approved in writing by the Administrative Agent in its Reasonable Credit Judgment, no Inventory shall constitute Eligible Inventory if, without duplication:
(a)    the applicable Borrower does not have good and valid title to such Inventory, free and clear of any Lien (other than Permitted Liens);
(b)    the Administrative Agent’s Lien on such Inventory, for the benefit of itself and the other Secured Parties, is not a valid first priority perfected Lien;
(c)    any of the representations or warranties in the Loan Documents with respect to such Inventory are untrue or inaccurate in any material respect (or, with respect to representations or warranties that are qualified by materiality, any of such representations and warranties are untrue or inaccurate);

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(d)    such Inventory (i) is either not finished goods (other than raw or unprocessed coal) or which constitutes work-in-process, packaging and shipping material or bill-and-hold goods, (ii) constitutes goods held on consignment (including any goods consigned at the location of a customer, supplier or contractor, but that are accounted for in the Inventory balance of the Borrowers) or (iii) constitutes goods which are not of a type held for sale in the ordinary course of business;
(e)    other than Delivery at Possession Inventory, such Inventory is in-transit to or from a location not leased or owned by a Borrower (it being understood that the Borrowers shall provide their best estimate of the value of all such Inventory, which estimate is to be reflected in the Borrowing Base Certificate), other than any Coal Inventory that is physically within the United States and in-transit between the applicable coal mine and (A) DTA Coal Export Terminal, (B) the Lamberts Point Terminal, (C) Chesapeake Bay Piers or (D) Three Rivers;
(f)    such Inventory is not located in the United States of America, other than Delivery at Possession Inventory;
(g)    except for Inventory located at any of the locations listed in clauses (A)-(D) of clause (e) above, such Inventory is located at any location leased by any of the Borrowers, unless
(i)    the lessor has delivered to the Administrative Agent a Landlord Lien Waiver as to such location or (ii) a Rent Reserve has been established by the Administrative Agent in its Reasonable Credit Judgment (measured as of the most recent practicable date);
(h)    except for Inventory located at any of the locations listed in clauses (A)-(D) of clause (e) above, such Inventory is located in any third-party storage facility or is otherwise in the possession of a warehouseman or bailee (including any repairman) and is not evidenced by a Document, unless (i) such third party, warehouseman or bailee has delivered to the Administrative Agent a Landlord Lien Waiver and such other documentation as the Administrative Agent may reasonably require or (ii) a Rent Reserve has been established by the Administrative Agent in its Reasonable Credit Judgment;
(i)    such Inventory is being processed or manufactured offsite (unless such processor or manufacturer has delivered to the Administrative Agent a Landlord Lien Waiver and such other documentation as the Administrative Agent may reasonably require);
(j)    such Inventory was acquired or originated by a Person acquired in a Permitted Acquisition or other Investment (until such time as the Administrative Agent has completed a customary due diligence investigation as to such Inventory and such person, which investigation may, in the Reasonable Credit Judgment of the Administrative Agent, include an inventory appraisal and/or field examination, and the Administrative Agent is satisfied with the results thereof in its Reasonable Credit Judgment);
(k)    such Inventory consists of assets other than Coal;
(l)    any such Inventory, to the extent of any portion of the Inventory Value thereof that is attributable to intercompany profit among the Borrowers or any of their respective Affiliates (it being understood and agreed that the applicable Borrower shall provide its best estimate of such Inventory Value to the Administrative Agent, which Inventory Value shall be approved by the Administrative Agent and reflected in the most recent Borrowing Base Certificate); or

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(m)    any such Inventory as to which any of the Borrowers takes an unrecorded book to physical inventory reduction based on the average of the most recent 12 months of physical inventory adjustments.
“ Eligible Unbilled Account ” means, at any time of determination, without duplication, each Unbilled Account of the Borrowers which constitutes an Eligible Account at such time; provided that unless otherwise approved from time to time in writing by the Administrative Agent in its Reasonable Credit Judgment, no Unbilled Account shall constitute an Eligible Unbilled Account unless the entire amount of the relevant Coal Inventory pertaining to such Unbilled Account has been loaded into the Account Debtor’s mode of transportation or has departed, in the case of vessels and barges, as applicable, or when delivered to the Account Debtor and when risk of loss or title of such Coal Inventory has transferred to the Account Debtor.
“ Environmental Laws ” means any and all applicable current and future Laws relating to (a) protection of natural resources, wildlife and the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface, water, ground water, or land, (b) human health and safety as affected by Hazardous Materials, and (c) mining operations and activities to the extent relating to environmental protection or reclamation, including the federal Surface Mining Control and Reclamation Act (30 U.S.C. 1201-1328) and all analogous state laws and regulations, provided that “ Environmental Laws ” do not include any laws relating to worker or retiree benefits, including benefits arising out of occupational diseases.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ Environmental Permits ” means any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any applicable Environmental Law.
“ Equity Interests ” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of Capital Stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination (but excluding any debt security that is convertible into, or exchangeable for, Equity Interests).
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, the regulations promulgated thereunder and any successor statute.
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to meet the minimum funding standards of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA

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with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (e) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (g) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (h) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (k) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Pension Plan; or (l) the occurrence of any Foreign Plan Event.
“ Equipment ” has the meaning specified in the UCC.
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“ Eurocurrency Base Rate ” means, (i) with respect to any Interest Period for any Eurocurrency Rate Loan, the rate per annum, determined by the Administrative Agent to be the offered rate for deposits in Dollars for the applicable Interest Period, equal to the ICE Benchmark Administration Limited LIBOR Rate (“ ICE LIBOR ”), as published by Reuters (or another commercially available source providing quotations of ICE LIBOR as designated by Administrative Agent from time to time) as of 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period and (ii) if the rate referenced in the preceding clause (i) is not available at such time for any Interest Period, the rate per annum equal to the Interpolated Screen Rate for delivery on the first day of such Interest Period, determined as of approximately 11:00 a.m. (London time) two (2) London Business Days prior to the first day of such Interest Period, or (iii) if the rates referenced in the preceding clauses (i) and (ii) are not available at such time for such Interest Period, the rate per annum equal to (x) the Screen Rate or (y) if the rate referenced in the preceding clause (x) is not available at such time for such Interest Period, the Interpolated Screen Rate, in each case with a term equivalent to such Interest Period quoted for delivery on the most recent London Business Day preceding the first day of such Interest Period for which such rate is available (which London Business Day shall be no more than seven (7) London Business Days prior to the first day of such Interest Period.
“ Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Federal Reserve Board.
“ Eurocurrency Rate ” means, with respect to any Interest Period for any Eurocurrency Rate Loan, an interest rate per annum equal to the rate per annum obtained by dividing (a) the Eurocurrency Base

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Rate by (b)(i) a percentage equal to 100% minus (ii) the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the Eurocurrency Rate is determined) having a term equal to such Interest Period; provided, if any such rate is less than zero, the Eurocurrency Base Rate shall be deemed to be zero.
“ Eurocurrency Rate Loan ” means a Loan that bears interest at a rate based on the Eurocurrency Rate.
“ Event of Default ” has the meaning specified in Section 8.01.
“ Excluded Accounts ” means a collective reference to (a) any deposit account, securities account, commodities account, cash collateral account or other similar account of any Loan Party (and all cash, cash equivalents and other securities or investments held therein) exclusively used for all or any of the following purposes: (i) payroll, (ii) employee benefits, (iii) worker's compensation, (iv) securing liabilities in respect of bank guarantees, credit card or purchase card facilities or similar merchant account arrangements incurred in the ordinary course of business, (v) taxes, (vi) third party escrow, (vii) customs, (viii)    other fiduciary purposes, or (ix) compliance with legal requirements (including pledges required in favor of Governmental Authorities), to the extent such legal requirements prohibit the granting of a Lien thereon and (b) other deposit accounts, security accounts, commodities accounts, cash collateral accounts or other similar accounts of any Loan Party (and all cash, cash equivalents and other securities or investments held therein) with an average balance for all accounts excluded by this clause (b) not in excess of $100,000 in the aggregate for all such accounts.
“ Excluded Assets ” means
(a)    motor vehicles and other assets subject to certificates of title where the net book value of any such motor vehicle or other such asset individually is less than $500,000,
(b)    commercial tort claims where the amount of the net proceeds claimed is less than $3,000,000,
(c)    (i) any Contractual Obligation and any leased or licensed asset under a Contractual Obligation or asset financed pursuant to a purchase money financing Contractual Obligation or Capital Lease Obligation, in each case that is the direct subject of such Contractual Obligation (so long as such Contractual Obligation is not entered into for purposes of circumventing or avoiding the collateral requirements of this Agreement), in each case only for so long as the granting of a security interest therein (x) would be prohibited by, cause a default under or result in a breach of such Contractual Obligation (unless the Company or any Controlled Subsidiary may unilaterally waive it) or would give another Person (other than the Company or any Controlled Subsidiary) a right to terminate or accelerate the obligations under such Contractual Obligation or to obtain a Lien to secure obligations owing to such Person (other than the Company or any Controlled Subsidiary) under such Contractual Obligation (in each case, except to the extent any such prohibition is unenforceable after giving effect to applicable anti- assignment provisions of the UCC) or (y) would require obtaining the consent of any Person (other than the Company or any Controlled Subsidiary) or applicable Governmental Authority, except to the extent that such consent has already been obtained or (ii) any asset the granting of a security interest therein in favor of the Secured Parties would be prohibited by any applicable Requirement of Law (other

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than any Organizational Document) (except to the extent such prohibition is unenforceable after giving effect to applicable anti-assignment provisions of the UCC, other than proceeds thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibitions),
(d)    those assets with respect to which, in the reasonable judgment of the Administrative Agent and the Company, the costs of obtaining or perfecting such a security interest are excessive in relation to the benefits to be obtained by the Secured Parties therefrom or would result in materially adverse tax consequences to the Company or its Subsidiaries as reasonably determined by the Company in consultation with the Administrative Agent,
(e)    (i) any real property and leasehold rights and interests in real property other than Material Real Property, and (ii) leasehold rights and interests in real property leased from any Governmental Authority,
(f)    any “intent-to-use” application for registration of a Trademark (as defined in the Security Agreement) filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto,
(g)    (i) any Equity Interest that is Voting Stock of a first-tier Foreign Subsidiary or FSHCO in excess of 65% of the Voting Stock of such Subsidiary, (ii) any Equity Interests of captive insurance subsidiaries and not-for-profit subsidiaries, (iii) any Equity Interests in any Joint Venture or any other non-wholly owned Subsidiary, and (iv) any Equity Interests in the direct parent of any Joint Venture or non-wholly owned Subsidiary to the extent that a pledge thereof would be prohibited by, cause a default under or result in a breach of, or would give another Person (other than the Company or any Controlled Subsidiary) a right to terminate, under any Organizational Document, shareholders, Joint Venture or similar agreement applicable to such owned Subsidiary or Joint Venture; and
(h)    the Excluded Accounts;
(i)    the Excluded Wyoming Property; and
(j)    all right, title and interest of Contura Energy Services LLC under (A) the Trust Agreement (N731BP) dated July 26, 2016 between Bank of Utah, as owner trustee, and Contura Energy Services LLC, as Operator and (B) the Aircraft Operating Agreement dated July 26, 2016 between Contura Energy Services, LLC and Bank of Utah, as owner trustee;
provided that the Collateral shall include the replacements, substitutions and proceeds of any of the foregoing unless such replacements, substitutions or proceeds also constitute Excluded Assets.
“ Excluded Hedging Obligations ” means, with respect to any Loan Party, (a) as it relates to all or a portion of the Guarantee of such Loan Party of Hedging Obligations, any Hedging Obligation if, and to the extent that, such Hedging Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Loan Party becomes effective with respect to such Hedging Obligation or (b) as it relates to all or a portion of the grant by such Loan Party of a security interest to secure any Hedging Obligation (or secure any Guarantee in respect thereof), any Hedging

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Obligation if, and to the extent that, the grant by such Loan Party of a security interest to secure such Hedging Obligation (or secure any Guarantee in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the grant of such security interest becomes effective with respect to such Hedging Obligation. If a Hedging Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal. As used in this definition, “Hedging Obligation” shall mean, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) branch profits Taxes or Taxes imposed on or measured by its overall net income (however denominated), and franchise taxes, in each case (i) imposed as a result of the Recipient being organized under the laws of, or having its principal office in or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than in the case of an assignee pursuant to a request by the Borrower Representative under Section 11.13) or (ii) such Lender changes its lending office, except in each case, to the extent that, pursuant to Section 3.01(a), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure or inability to comply with Section 3.01(e) and (d) any Taxes imposed under FATCA.
“ Excluded Wyoming Property ” means, any property rights and interests in real and personal property to the extent that such property is pledged to the State of Wyoming (or any governmental agency thereof) to satisfy bonding obligations under reclamation laws. As of the Closing Date, Schedule 1.01(b) lists all Excluded Wyoming Property.
“ Existing Senior Notes ” means the senior secured first lien notes of Borrower due August 2021 issued pursuant to the Existing Senior Notes Indenture.
“ Existing Senior Notes Indenture ” means the Indenture, dated as of July 26, 2016, among the Company, the guarantors party thereto, the Wilmington Trust, National Association, as Trustee and Collateral Agent (as defined therein) (as amended, restated, supplemented or otherwise modified prior to the Closing Date).
“ Facility ” has the meaning specified in the introductory statement hereto.
“ Facility Increase ” has the meaning specified in Section 2.15.
“ Facility Increase Amount ” has the meaning specified in Section 2.15.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered

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into pursuant to Section 1471(b)(1) of the Code and any laws implementing an intergovernmental agreement with respect to the foregoing.
“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“ Federal Reserve Board ” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
“ Fee Letter ” means the Agency Fee Letter, dated as of the date hereof between the Company, Citibank, N.A. and Citigroup Global Markets Inc.
“ Financial Statements ” means the financial statements of the Company and its Subsidiaries, on a consolidated basis, delivered in accordance with Section 6.01.
“ Financing Lease ” means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee; provided that, any operating lease that is required to be treated as a capital lease in accordance with GAAP as a result of any Accounting Change shall not be deemed a Financing Lease for purposes of this Agreement.
“ First Priority ” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien ranks first in priority to all other Liens, other than Liens permitted under clauses (b), (c), (d), (e), (g), (i), (j), (m), (p), (r), (s) and (u) (solely with respect to any Term Loan Priority Collateral) of Section 7.01.
“ Fixed Charge Coverage Ratio ” shall mean, with respect to any period, the ratio of (a) Consolidated EBITDA of the Company and its Restricted Subsidiaries for such period, minus non- financed Capital Expenditures (including Capital Expenditures financed with the proceeds of any Loans) paid or payable currently in cash by the Company or any of its Subsidiaries for such period to (b) the Fixed Charges of the Company and its Restricted Subsidiaries during such period.
“ Fixed Charges ” shall mean, for any period, the sum of, without duplication: (a) all scheduled amortization payments of principal paid or due and payable during such period by the Company or any of its Restricted Subsidiaries in respect of any Indebtedness under clause (a) of the definition thereof (including scheduled payments of the principal portion of Capital Lease Obligations), plus (b) consolidated interest expense (including the interest component of payments under Capital Lease Obligations) of the Company and its Restricted Subsidiaries for such period, plus (c) the aggregate amount of Federal, state, local and foreign income Taxes and franchise and similar Taxes (net of any benefit or credit) included in the determination of Consolidated Net Income paid in cash during such period, plus (d) all Restricted Payments of type described in clause (a) of the definition of Restricted Payments payable in cash during such period to any Person other than the Company and its Restricted Subsidiaries. For the first three fiscal quarters of the Company ending after the Closing Date, Fixed Charges shall be calculated on an annualized basis for the period commencing on the Closing Date and ending on the last day of the fiscal quarter ending on such date.
“ Fixtures ” has the meaning specified in the UCC.

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“ Foreign Lender ” means, with respect to the Borrowers, any Lender that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia.
“ Foreign Plan ” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Loan Party or any of their respective Subsidiaries with respect to employees employed outside the United States and paid through a non-United States payroll.
“ Foreign Plan Event ” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, within the time permitted by Law for such contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any liability by any Loan Party under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, in each case, which would reasonably be expected to have a Material Adverse Effect, or (e) the occurrence of any transaction with respect to a Foreign Plan that is prohibited under any applicable law and that would reasonably be expected to result in the incurrence of any liability by any Loan Party, or the imposition on any Loan Party of any fine, excise tax or penalty with respect to a Foreign Plan resulting from any noncompliance with any applicable law, in each case which would reasonably be expected to have a Material Adverse Effect.
“ Foreign Subsidiary ” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any State thereof or the District of Columbia and any Subsidiary thereof.
“ FRB ” means the Board of Governors of the Federal Reserve System of the United States. “ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lender’s Ratable Portion of the outstanding L/C Obligations with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof; and (b) with respect to the Swingline Lender, such Defaulting Lender’s Ratable Portion of outstanding Swingline Loans made by the Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“ FSHCO ” means any Domestic Subsidiary formed or acquired on or after the Closing Date substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries.
“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“ GAAP ” means generally accepted accounting principles, which are applicable to the circumstances as of the date of determination. The sources of accounting principles and the framework for selecting the principles used in the preparation of financial statements of nongovernmental entities that are presented in conformity with GAAP in the United States, are set forth in the Financial Accounting Standards Board’s Accounting Standards Codification.
“ General Intangible ” has the meaning set forth in Article 9 of the UCC. “ Goods ” has the meaning specified in the UCC.

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“ Governmental Authority ” means the government of the United States or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).
“ Guarantee ” means, as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to the extent the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation in order to induce the creation of such obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, reimbursement obligations under letters of credit and any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee shall not include (i) ordinary course performance guarantees by any Loan Party of the obligations (other than for the payment of borrowed money) of any other Loan Party, (ii) endorsements of instruments for deposit or collection in the ordinary course of business and (iii) indemnification or reimbursement obligations under or in respect of Surety Bonds or Designated Letters of Credit. The amount of any Guarantee obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrowers in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“ Guarantors ” means any Restricted Subsidiary that is a wholly-owned Domestic Subsidiary; provided that such term shall not include (a) any FSHCO or (b) any Domestic Subsidiary that is a Subsidiary of any Foreign Subsidiary. The Guarantors as of the Closing Date are the Subsidiaries of the Company listed on Schedule 1.01(a). For the avoidance of doubt, no Foreign Subsidiary now owned or hereafter formed or acquired shall be a Guarantor. To the extent the Company desires to include assets of a Guarantor in the Borrowing Base, such Guarantor shall become a Borrower by executing an Assumption Agreement.
“ Hazardous Materials ” means (i) any explosive or radioactive substances or wastes, (ii) any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under, or that would reasonably be expected to give rise to liability under, any applicable Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, and (iii) any coal ash, coal combustion by-products or waste, boiler slag, scrubber residue or flue desulphurization residue (“ CCR ”), except that CCR beneficially re-used shall not be considered a Hazardous Material.
“ Hedge Bank ” means (a) a Lender or an Affiliate of a Lender that is a party to a Secured Hedge Agreement on the Closing Date or (b) any Person that, at the time it enters into a Secured Hedge Agreement,

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is a Lender or an Affiliate of a Lender, in each case, in its capacity as a party to such Secured Hedge Agreement.
“ Hedging Agreement ” means (i) any interest rate swap agreement, interest rate cap agreement, interest rate future agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect against or mitigate interest rate risk, (ii) any foreign exchange forward contract, currency swap agreement, futures contract, option contract, synthetic cap or other agreement or arrangement designed to protect against or mitigate foreign exchange risk or (iii) any commodity or raw material, including coal, futures contract, commodity hedge agreement, option agreement, any actual or synthetic forward sale contract or other similar device or instrument or any other agreement designed to protect against or mitigate raw material price risk (which shall for the avoidance of doubt include any forward purchase and sale of coal for which full or partial payment is required or received).
“ Hedging Obligations ” means all debts, liabilities and obligations of the Company or any Restricted Subsidiary in respect of any Hedging Agreement.
“ Hedging Reserve ” means any reserve established by the Administrative Agent in its Reasonable Credit Judgment in respect of Hedging Obligations based upon the credit exposure of any Hedge Banks to a Borrower in respect of Hedging Obligations, as notified by such Hedge Bank in writing to the Administrative Agent.
“ Hedging Termination Value ” means, in respect of any one or more Hedging Agreement, after taking into account the effect of any valid netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender, the Administrative Agent or any Affiliate of a Lender or the Administrative Agent) (it being understood that any such termination values and marked-to-market values shall take into account any assets posted as collateral or security for the benefit of a party to the Hedging Agreement).
“ Highest Lawful Rate ” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“ Honor Date ” shall have the meaning specified in Section 2.04(d)(i).
“ Increase Effective Date ” has the meaning specified in Section 2.15.
“ Increased Reporting Period ” means any period commencing on any day that (i) any Event of Default shall have occurred and be continuing or (ii) Availability shall be less than the greater of (w) $15,625,000 and (x) 12.5% of the Maximum Revolving Credit, which period shall terminate on the date on which no Event of Default shall be continuing and Availability has exceeded the greater of the greater of (y) $15,625,000 and (z) 12.5% of the Maximum Revolving Credit for a period of 30 consecutive calendar days.
“ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

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(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than any obligations in respect of performance bonds bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees, bank guarantees and similar contingent obligations or with respect to worker’s compensation benefits);
(b)    all obligations of such Person arising under letters of credit, bankers’ acceptances or similar instruments issued for the account of such Person (solely to the extent such letters of credit, bankers’ acceptances or other similar instruments have been drawn and remain unreimbursed);
(c)    net obligations of such Person under any Hedging Agreement;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses incurred in the ordinary course of business, (ii) obligations under federal coal leases, (iii) obligations under coal leases and (iv) obligations for take- or-pay arrangements);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)    Capital Lease Obligations; and
(g)    all Guarantees of such Person in respect of any of the foregoing Indebtedness of any other Person (but excluding any performance and completion Guarantees of such Person);
provided that in no event shall Indebtedness include (i) in connection with the purchase by the Company or any of its Restricted Subsidiaries of any business, post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing unless such payments are required under GAAP to appear as a liability on the balance sheet (excluding the footnotes), provided, that at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; (ii) deferred or prepaid revenues; (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (iv) asset retirement obligations, or (v) obligations (other than obligations with respect to Indebtedness for borrowed money or other Indebtedness evidenced by loan agreements, bonds, notes or debentures or similar instruments or letters of credit (solely to the extent such letters of credit or other similar instruments have been drawn and remain unreimbursed) (or, without duplication, reimbursement agreements in respect thereof)) related to surface rights under an agreement for the acquisition of surface rights for the production of coal reserves in the ordinary course of business in a manner consistent with historical practice of the Company and its Subsidiaries. Indebtedness shall be calculated without giving effect to the effects of Accounting Standards Codification Topic 815 “Derivatives and Hedging” and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Hedging Termination Value thereof as of such date. The amount of any Indebtedness issued with original issue discount shall be deemed to be the face amount of such Indebtedness less the remaining

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unamortized portion of the original issue discount of such Indebtedness. The amount of any Capital Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any indebtedness of a Joint Venture secured by a Lien on property owned or being purchased by the Company or its Restricted Subsidiaries as of any date shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the indebtedness that is secured by such Lien and (b) the maximum amount for which the Company or its Restricted Subsidiaries may be liable (which may be determined with reference to the fair market value of the property securing such indebtedness as reasonably determined by the Company in good faith) pursuant to the terms of such indebtedness. Except as set forth in the sentence immediately above, the amount of indebtedness of any Joint Venture, which is attributable to the Company or any Restricted Subsidiary shall be deemed to equal the amount of indebtedness that would be attributable to the Company or any Restricted Subsidiary in accordance with GAAP.
“ Indemnified Liabilities ” has the meaning specified in Section 11.04.
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes.
“ Indemnitees ” has the meaning specified in Section 11.04(b).
“ Instrument ” has the meaning specified in the UCC.
“ Intellectual Property ” has the meaning specified in the Security Agreement.
“ Intercreditor Agreements ” means each of (a) the Term Loan Intercreditor Agreement and (b) the Junior Lien Intercreditor Agreements.
“ Interest Payment Date ” means, (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan, the Termination Date, and in the case of a Eurocurrency Rate Loan with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Loan; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Termination Date.
“ Interest Period ” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months (or, to the extent agreed to by all of the Lenders, 12 months) thereafter, as selected by a Borrower in its Borrowing Notice or Notice of Conversion or Continuation, as applicable; provided that:
(a)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b)    any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)    no Interest Period shall extend beyond the Maturity Date.

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“ Interpolated Screen Rate ” means, for any Interest Period with respect to any Eurocurrency Rate Loan, the rate which results from interpolating on a linear basis between (a) the applicable Screen Rate for the period next longer than the length of such Interest Period and (b) the applicable Screen Rate for the period next shorter than the length of such Interest Period.
“ Inventory ” has the meaning specified in the UCC.
“ Inventory Value ” means, at any time of determination, with respect to any Coal Inventory of any of the Borrowers, the value reflected in the general ledger of the Company, calculated in accordance with GAAP.
“ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or other securities of another Person, (b) a loan, advance (excluding intercompany liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and its Subsidiaries) or capital contribution to, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or Joint Venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be (i) the amount actually invested, as determined immediately prior to the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents.
“ Investment Grade Rating ” means a Debt Rating of at least BBB- by S&P and Baa3 from Moody’s.
“ Investment Property ” has the meaning specified in the UCC. “ IP Rights ” has the meaning specified in Section 5.18.
“ IP Security Agreements ” means any Copyright Security Agreement, any Trademark Security Agreement and any Patent Security Agreement.
“ ISP ” means, with respect to any Letter of Credit, the “ International Standby Practices 1998 ” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any L/C Issuer and the Borrowers (or any Subsidiary) or in favor of such L/C Issuer and relating to any such Letter of Credit.
“ Joint Venture ” means any Person (a) other than a Subsidiary in which the Company or its Subsidiaries hold an ownership interest or (b) which is an unincorporated joint venture of the Company or any Subsidiary.
“ Junior Collateral Trustee ” means the Person acting as Junior Collateral Trustee pursuant to any Junior Intercreditor Agreement, together with its successors and assigns in such capacity.

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“ Junior Lien Indebtedness ” means any Indebtedness (other than the Term Loan Facility) that is secured by a junior Lien to the Lien securing the Obligations and that was permitted to be incurred and so secured hereunder.
“ Junior Lien Intercreditor Agreement ” means an intercreditor agreement to be entered into between the Term Loan Agent, the Collateral Agent and the Junior Collateral Trustee that sets forth the relative priority of the Priority Liens and the Term Loan Liens (as such term is defined in such Junior Lien Intercreditor Agreement), on the one hand, and the Junior Liens (as such term is defined in such Junior Lien Intercreditor Agreement), on the other hand, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“ L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
“ L/C Cash Collateral Account ” means the account established by, and under the sole dominion and control of, the Administrative Agent maintained with the Administrative Agent and designated as the “ Contura L/C Cash Collateral Account ”.
“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“ L/C Issuer ” means, collectively, each of Citibank, N.A., BMO Harris Bank N.A. and Credit Suisse AG, Cayman Islands Branch in its respective capacity as issuer of Letters of Credit hereunder, and any other Lender or Lenders reasonably acceptable to the Company and the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) that agree to act as L/C Issuer, and any successor issuer of Letters of Credit hereunder.
“ L/C Obligations ” means as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts with respect to Letters of Credit, including all L/C Borrowings plus the aggregate amount of Letter of Credit Fees then due and payable.
“ L/C Sublimit ” means, at any time, (a) with respect to all of the L/C Issuers taken as a whole, $80,000,000 and (b) with respect to each L/C Issuer individually, an amount allocated to such L/C Issuer by the Administrative Agent, at the request of the Borrowers, and accepted by such L/C Issuer in its sole discretion. As of the Closing Date, the L/C Sublimit of each L/C Issuer referred to in clause (b) above shall be the amount set forth opposite such L/C Issuer’s name on Schedule 2.01.
“ Lamberts Point Terminal ” is located at Norfolk Southern Lamberts Point Pier 6 Coal Terminal, 2200 Redgate Avenue, Norfolk, Virginia 23507.
“ Landlord Lien Waiver ” means any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement.
“ Laws ” means, as to any Person, collectively, all international, foreign, Federal, state and local laws, statutes, treaties, rules, regulations, ordinances, codes, and determinations of arbitrators or courts or other Governmental Authorities, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

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“ Lender ” means each financial institution listed on Schedule 2.01, as well as any Person that becomes a “ Lender ” hereunder pursuant to Section 11.06(b). Unless the context requires otherwise, the term “ Lender ” shall include the Swingline Lender.
“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire or Assignment and Acceptance by which it became a Lender or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.
“ Letter of Credit ” means any letter of credit issued pursuant to Section 2.04(a).
“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.
“ Letter of Credit Expiration Date ” means the day that is the earlier of (a) 12 months after its date of issuance (or such longer period as may be agreed by the applicable L/C Issuer and the applicable Borrower) and (b) 5 Business Days prior to the Maturity Date; provided that any Letter of Credit may provide for renewal thereof for additional periods of up to 12 months (which in no event shall extend beyond the date referred to be in clause (b) above, except to the extent Cash Collateralized pursuant to arrangements reasonably acceptable to the relevant L/C Issuer).
“ Letter of Credit Fee ” has the meaning specified in Section 2.04(j).
“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Financing Lease having substantially the same economic effect as any of the foregoing).
“ Liquidity Period ” means any period commencing on any day that (i) any Event of Default shall have occurred and be continuing or (ii) Availability shall be less than the greater of (w) $12,500,000 and (x) 10.0% of the Maximum Revolving Credit, which period shall terminate on the date on which no Event of Default shall be continuing and Availability has exceeded the greater of (y) $12,500,000 and (z) 10.0% of the Maximum Revolving Credit for a period of 30 consecutive calendar days.
“ Loan ” has the meaning specified in Section 2.01.
“ Loan Documents ” means, collectively, (a) this Agreement, (b) the Notes, (c) the Collateral Documents, (d) each Issuer Document, (e) each Secured Hedge Agreement, (f) each Secured Cash Management Agreement and (g) any Intercreditor Agreement.
“ Loan Parties ” means, collectively, the Borrowers and each Guarantor.
“ Material Adverse Effect ” means a material adverse effect upon (a) the business, assets, operations, property or financial condition of the Company and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrowers and the Guarantors, taken as a whole, to perform their obligations under the Loan Documents or (c) the validity or enforceability of the Loan Documents or the material rights or remedies of the Administrative Agent, the Collateral Agent, the Arrangers, the L/C Issuers or the Lenders thereunder.

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“ Material Leased Real Property ” means any Mine or other real property, in each case, subject to a lease with a Loan Party, as lessee, with annual minimum royalties, rents or any similar payment obligations, in excess of $500,000 in the most recently ended fiscal year.
“ Material Owned Real Property ” means any Mine or other real property, in each case, owned or acquired in fee by any Loan Party having a fair market value in excess of $1,000,000.
“ Material Real Property ” means (a) the Material Leased Real Property and (b) the Material Owned Real Property, as the context may require; provided that Material Real Property shall not include (x) the Excluded Wyoming Property, (y) the Excluded Assets or (z) any leasehold interests of a Loan Party in commercial real property constituting offices of the Company and its Subsidiaries.
“ Maturity Date ” means the date that is five (5) years after the Closing Date; provided that individual Lenders may agree in their sole discretion to extend the maturity of their Commitments under the Facility upon the request of the Borrowers and without the consent of any other Lender; provided, further, that if such date is not a Business Day, the Maturity Date shall be the next succeeding Business Day.
“ Maximum Revolving Credit ” means, at any time, the lesser of (i) the Borrowing Base at such time and (ii) the aggregate amount of Commitments in effect at such time.
“ Mine ” means any mining complex and its associated Reserve Area in respect of any of the real properties in the United States in which any Loan Party holds an ownership, leasehold or other interest, including any excavation or opening into the earth now or hereafter made from which coal or other minerals are or can be extracted.
“ Mining Laws ” means any and all applicable federal, state, local and foreign statutes, laws, regulations, guidance, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions or common law causes of action relating to mining operations and activities.
“ Mining Laws ” shall include but not be limited to, the MSHA, the Mineral Lands Leasing Act of 1920, the Federal Coal Leasing Amendments Act, the Surface Mining Control and Reclamation Act, all other land reclamation and use statutes and regulations relating to Coal mining, the Federal Coal Mine Health and Safety Act, the Black Lung Act and the Coal Act, the Mine Safety and Health Act and the Occupational Safety and Health Act, each as amended, and their state and local counterparts or equivalents.
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
“ Money ” has the meaning specified in the UCC.
“ Mortgage ” means a deed of trust, trust deed, deed to secure debt, mortgage, leasehold mortgage and leasehold deed of trust in form and substance reasonably satisfactory to the Administrative Agent, in each case as amended, restated, supplemented or otherwise modified from time to time.
“ MSHA ” means the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq., as amended.
“ Multiemployer Plan ” means any employee pension benefit plan (as defined in Section 3(2) of ERISA) of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA

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Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“ Net Cash Proceeds ” means, with respect to any Disposition by the Borrowers or any of their respective Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest, breakage costs and other amounts on any Indebtedness that is secured by the asset subject to such Disposition and that is required to be repaid or paid in connection with such transaction (other than Indebtedness under, or that is secured by, the Loan Documents), (B) the reasonable out-of-pocket fees and expenses (including reasonable out-of-pocket attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums and related search and recording charges, transfer Taxes, other customary expenses and brokerage, consultant and other customary fees) incurred by the Borrowers or such Subsidiary in connection with such transaction, (C) Taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided that if the amount of any estimated Taxes pursuant to subclause (C) exceeds the amount of Taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds and (D) any reserve for adjustment in respect of (x) the sale price of such asset established in accordance with GAAP and (y) any liabilities associated with such asset and retained by the Borrowers after such Disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.
“ Net Insurance/Condemnation Proceeds ” means an amount equal to: (a) any cash payments or proceeds (including Cash Equivalents) received by the Company or any of its Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder of any assets of the Company or any of its Subsidiaries or (ii) as a result of the taking of any assets of the Company or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) (i) any actual out- of-pocket costs incurred by the Company or any of its Subsidiaries in connection with the adjustment, settlement or collection of any claims of the Company or any of its Subsidiaries in respect thereof, (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the assets in question and that is required to be repaid under the terms thereof as a result of such loss, taking or sale, (iii) in the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar Taxes and the Company’s good faith estimate of income Taxes paid or payable) in connection with any sale or taking of such assets as referred to in clause (a)(ii) of this definition and (v) any amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustments associated with any sale or taking of such assets as referred to in clause (a)(ii) of this definition (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Insurance/Condemnation Proceeds).
“ Net Orderly Liquidation Value ” means an amount, expressed as a percentage of the cash proceeds of Inventory that could be obtained in an orderly liquidation (net of all liquidation expenses, costs of sale, operating expenses and retrieval and related costs), as determined pursuant to the most recent Appraisal delivered to the Administrative Agent.

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“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.
“ Non-Extension Notice Date ” has the meaning specified in Section 2.04(c)(iii).
“ Non-Recourse Debt ” means Indebtedness (a) as to which neither the Company nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) other than a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, (ii) is directly or indirectly liable (as a guarantor or otherwise) other than by virtue of a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, or (iii) constitutes the lender; (b) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against any Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the Obligations) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders thereunder will not have any recourse to the Equity Interests or assets of the Company or any of its Restricted Subsidiaries (other than solely the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral).
“ Non-Reinstatement Deadline ” has the meaning specified in Section 2.04(c)(iv).
“ Nonconsenting Lender ” has the meaning specified in Section 11.13.
“ Note ” means a promissory note made by the Borrowers in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C.
“ Notice of Conversion or Continuation ” means a notice by the Borrowers to (i) convert Base Rate Loans or any portion thereof to Eurocurrency Rate Loans or (ii) at the end of any applicable Interest Period, convert Eurocurrency Rate Loans or any portion thereof into Base Rate Loans or to continue such Eurocurrency Rate Loans or any portion thereof for an additional Interest Period, in each case, substantially in the form of Exhibit B.
“ Notification ” shall have the meaning given to such term in clause (s) of the definition of “Eligible Accounts.”
“ Obligations ” means all advances to, and debts, liabilities and obligations of, any Loan Party arising under any Secured Cash Management Agreement, Secured Hedge Agreement, Loan Document or otherwise with respect to any Loan, Letter of Credit, Swingline Loan or Protective Advance whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, including interest and fees that accrue after the commencement by or
against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Notwithstanding anything to the contrary herein, the “Obligations” shall not include any Excluded Hedging Obligations.
“ Obligee Guarantor ” shall have the meaning given to such term in Section 10.08.
“ Organizational Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any

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non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, Joint Venture, trust or other form of business entity, the partnership, Joint Venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“ Other Connection Taxes ” means with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing, or similar Taxes that arise from any payment made under, from the execution, delivery, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment at the request of the Borrower Representative pursuant to Section 11.13).
“ Outstanding Amount ” means (i) with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date; (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts, (iii) with respect to Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments of such Swingline Loans occurring on such date and (iv) with respect to Protective Advances on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments of such Protective Advances on such date.
“ Overnight Rate ” means, for any day, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by the Administrative Agent or any L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
“ Owner Trust ” means Bank of Utah, not in its individual capacity but solely as owner trustee under the Trust Agreement N731BP dated July 26, 2016.
“ Parent Entity ” means any Person that is a direct or indirect parent company (which may be organized as a partnership) of the Company.
“ Participant ” has the meaning specified in Section 11.06(d).
“ Participant Register ” has the meaning specified in Section 11.06(d).
“ Patent Security Agreement ” means the Patent Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent and the Company, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.

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“ PATRIOT Act ” has the meaning specified in Section 5.17.
“ Payment Conditions ” mean, at any time of determination, with respect to any applicable Indebtedness, Investment (including any Permitted Acquisition), Restricted Payment or Restricted Debt Payment (each such event or transaction, a “ Permitted Transaction ”), the satisfaction of each of the following conditions:
(a)    no Event of Default has occurred and is continuing or would immediately result from the consummation of such Permitted Transaction; and
(b)    the Borrowers shall have demonstrated compliance at the time of consummation of such Permitted Transaction with either clause (i) or clause (ii) below, in each case, as set forth in the most recent Borrowing Base Certificate delivered pursuant to Section 6.02(f):
(i)    (x) pro forma Availability immediately after giving effect to such Permitted Transaction (taking into account any Credit Extensions made to finance such Permitted Transaction) and (y) pro forma average Availability for the 30-day period immediately preceding the consummation of such Permitted Transaction (assuming such Permitted Transaction (and any Credit Extensions made to finance such Permitted Transaction) shall have occurred on the first day of such period), shall be, in each case, no less than the greater of (1) 12.5% of the Maximum Revolving Credit and (2) $15,625,000 and (z) the Fixed Charge Coverage Ratio, on a Pro Forma Basis, as of the last day of the most recently ended Test Period (after giving pro forma effect to such Permitted Transaction and each other Permitted Transaction that has occurred since the beginning of such Test Period) shall not be less than 1.00 to 1.00, or
(ii)    both (x)(1) pro forma Availability immediately after giving effect to such Permitted Transaction (taking into account any Credit Extensions made to finance such Permitted Transaction) and (2) pro forma average Availability for the 30-day period immediately preceding the consummation of such Permitted Transaction (assuming such Permitted Transaction (and any Credit Extensions made to finance such Permitted Transaction) shall have occurred on the first day of such period), shall be, in each case, no less than the greater of (x) 17.5% of the Maximum Revolving Credit and (y) $21,875,000.
“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
“ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
“ Permitted Acquisition ” means any transaction or series of related transactions for the direct or indirect acquisition by the Company or any of its Restricted Subsidiaries of all or substantially all the assets of a Person or line of business or division of such person (referred to herein as the “ Acquired Assets ”), or all of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “ Acquired Entity ”) or merger or consolidation of any other combination with any other Person; provided that

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(a)    the Acquired Entity or the Acquired Assets, as applicable, shall be engaged in a Similar Business;
(b)    both before and after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(c)    the Payment Conditions shall have been satisfied at the time of closing of such Permitted Acquisition on a Pro Forma Basis (after giving effect to any Credit Extensions and other Indebtedness incurred to finance such Permitted Acquisitions);
(d)    the Company shall comply, and shall cause the Acquired Entity, if any, to comply, with the applicable provisions of Section 6.12 and Section 6.16; provided that, in respect of Acquired Entities that are organized outside of the United States or will otherwise not become Loan Parties or Acquired Assets located outside of the United States or that will not be acquired by Loan Parties, the aggregate amount of such Investments, when taken together with Indebtedness of a non-Loan Party owing to a Loan Party pursuant to Section 7.03(f) (other than Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Loan Party to a Loan Party pursuant to Section 7.03(f) and Investments in non- Loan Parties made pursuant to Section 7.02(j), shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets;
(e)    such Permitted Acquisition is not consummated in connection with a “hostile takeover” or proxy fight or similar transaction; and
(f)    such Permitted Acquisition and all transactions related thereto are consummated in all material respects in accordance with applicable Laws.
“ Permitted Asset Swap ” means the substantially concurrent purchase and sale, trade-in or exchange of equipment, real property or any other property of a nature or type that is used or useful in a Similar Business or a combination of such equipment, real property or any other property and cash or Cash Equivalents between the Company or any of its Restricted Subsidiaries and another Person; provided that the fair market value of the equipment, real property or any other property received is at least as great as the fair market value of the equipment, real property or other property being traded-in or exchanged as determined by the Company reasonably and in good faith; provided that any shortfall may be treated as an Investment and shall constitute an Investment for purposes of calculating compliance with Section 7.02.
“ Permitted Liens ” has the meaning specified in Section 7.01.
“ Permitted Partial Payment Plan ” means a partial payment plan whereby (a) an Account Debtor is required to pre-pay a portion of the total sale amount prior to shipment, with the remaining sale amount billed following shipment; (b) an Account Debtor that is using a letter of credit as Acceptable Credit Support for a shipment makes an initial partial payment, followed by a subsequent payment for the remaining balance due on the shipment; or (c) an Account Debtor is billed for a shipment at a provisional selling price, and a subsequent billing is made after the final selling price has been determined.
“ Permitted Real Estate Encumbrances ” means the following encumbrances which do not, in any case, individually or in the aggregate, materially detract from the value of any Mine subject thereto or interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted on, at or with respect to such Mine and as to be conducted following the Closing Date: (a) encumbrances customarily found upon real property used for mining purposes in the applicable jurisdiction in which the applicable real property is located to the extent such encumbrances would be permitted or granted by a

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prudent operator of mining property similar in use and configuration to such real property (e.g., surface rights agreements, wheelage agreements and reconveyance agreements); (b) rights and easements of (i) owners of undivided interests in any of the real property where the applicable Loan Party or Subsidiary owns less than 100% of the fee interest, (ii) owners of interests in the surface of any real property where the applicable Loan Party or Subsidiary does not own or lease such surface interest, (iii) lessees, if any, of coal or other minerals (including oil, gas and coal bed methane) where the applicable Loan Party or Subsidiary does not own such coal or other minerals, and (iv) lessees of other coal seams and other minerals (including oil, gas and coal bed methane) not owned or leased by such Loan Party or Subsidiary; (c) with respect to any real property in which the Company or any Restricted Subsidiary holds a leasehold interest, terms, agreements, provisions, conditions, and limitations (other than royalty and other payment obligations which are otherwise permitted hereunder) contained in the leases granting such leasehold interest and the rights of lessors thereunder (and their heirs, executors, administrators, successors, and assigns), subject to any amendments or modifications set forth in any landlord consent delivered in connection with a Mortgage; (d) farm, grazing, hunting, recreational and residential leases with respect to which the Company or any Restricted Subsidiary is the lessor encumbering portions of the real properties to the extent such leases would be granted or permitted by, and contain terms and provisions that would be acceptable to, a prudent operator of mining properties similar in use and configuration to such real properties; (e) royalty and other payment obligations to sellers or transferors of fee coal or lease properties to the extent such obligations constitute a lien not yet delinquent; (f) rights of others to subjacent or lateral support and absence of subsidence rights or to the maintenance of barrier pillars or restrictions on mining within certain areas as provided by any mining lease, unless in each case waived by such other person; (g) rights of repurchase or reversion when mining and reclamation are completed, (h) zoning, building, land use and other similar laws and all Liens (other than monetary Liens) that do not materially interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted, (i) Liens on the property of the Company or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord and (j) leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose.
“ Permitted Refinancing Increase ” means, with respect to the Refinancing of any Indebtedness, an amount equal to (a) any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing, (b) any unpaid accrued interest on the Indebtedness being Refinanced, and (c) any existing commitments unutilized under the Indebtedness being Refinanced.
“ Permitted Refinancing Indebtedness ” mean any Indebtedness issued in exchange for, or the net proceeds of which are used to, extend, refinance, renew, replace, defease or refund (collectively, to “ Refinance ”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced ( plus any Permitted Refinancing Increase in respect of such Refinancing), (b) such Permitted Refinancing Indebtedness shall have the same obligors and same guarantees as, and be secured on a pari passu basis with, the Indebtedness so Refinanced (provided that the Permitted Refinancing Indebtedness may be subject to lesser guarantees or be unsecured or the Liens securing the Permitted Refinancing Indebtedness may rank junior to the Liens securing the Indebtedness so Refinanced) and, to the extent applicable, the Company shall have satisfied the requirements of Section 5.3(b) and Section 5.5(b) of the Term Loan Intercreditor Agreement with respect to such Permitted Refinancing Indebtedness, (c) the maturity date is later than or equal to, and the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to, that of the Indebtedness

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being Refinanced, (d) if the Indebtedness so Refinanced is subordinated in right of payment to the Obligations, then such Permitted Refinancing Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Obligations at least to the extent that the Indebtedness so Refinanced is subordinated to the Obligations and (e) the terms and conditions of any Permitted Refinancing Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties than the terms and conditions of the Indebtedness that is being Refinanced.
“ Permitted Transactions ” has the meaning specified in the definition of “ Payment Conditions ”.
“ Person ” means any natural person, corporation, limited liability company, trust, Joint Venture, association, company, partnership, Governmental Authority or other entity.
“ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, by any ERISA Affiliate.
“ PRB Subsidiary ” means each of Contura Coal West, LLC and Contura Wyoming Land, LLC.
“ Pro Forma Basis ” means, for purposes of calculating Consolidated Net Tangible Assets, the Fixed Charge Coverage Ratio or any other test that is based on satisfying a financial ratio or metric, that with respect to any acquisition or disposition (in each case, that would be included in a Pro Forma Basis calculation pursuant to Section 1.08), such acquisition or disposition shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such acquisition or disposition for which the Company has delivered financial statements pursuant to Section 6.01. In connection with the foregoing, (a) with respect to any such acquisition, income statement items attributable to the Person or property or assets acquired shall be included to the extent relating to any period applicable in such calculations to the extent (i) such items are not otherwise included in such income statement items for the Company and its Restricted Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01, (ii) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent and (iii) any Indebtedness incurred or assumed by the Company or any Subsidiary (including the Person, property or assets acquired) in connection with such acquisition and any Indebtedness of the Person, property or assets acquired which is not retired in connection with such acquisition (A) shall be deemed to have been incurred as of the first day of the most recent four fiscal quarter period preceding the date for such acquisition and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the most recent four fiscal quarter period preceding the date of such acquisition for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; and (b) with respect to any such disposition, income statement items attributable to the Person or property or assets being disposed of shall be excluded to the extent relating to any period applicable in such calculations in accordance with the foregoing principles applicable to acquisitions, mutatis mutandis .
“ Proceeds ” has the meaning specified in the UCC and, in any event, shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Administrative Agent or the Company or any of its Subsidiaries from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to the Company or any of its Subsidiaries from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person

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acting under color of Governmental Authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“ Production Payments ” means with respect to any Person, all production payment obligations and other similar obligations with respect to coal and other natural resources of such Person that are recorded as a liability or deferred revenue on the financial statements of such Person in accordance with GAAP.
“ Properties ” has the meaning specified in Section 2.03(a).
“ Protective Advances ” has the meaning specified in Section 2.03.
“ Public Lender ” has the meaning specified in Section 9.16(e).
“ Qualified Cash ” means unrestricted cash of the Borrowers that is (i) deposited in a cash Deposit Account established and maintained at, and in the name of, the Administrative Agent, and subject to a Control Agreement and (ii) subject to the valid, enforceable and first priority perfected security interest of the Administrative Agent; provided that, for purposes of the amount of Qualified Cash included in the calculation of Borrowing Base, such amount may be reduced, at the Administrative Agent’s option, by any obligations owing to it as a depository bank).
“ Qualified ECP Guarantor ” means, in respect of any Hedging Agreement, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Hedging Agreement or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“ Qualified Equity Interests ” means all Equity Interests of a Person other than Disqualified Equity Interests.
“ Qualifying IPO ” means the issuance by the Company or any Parent Entity of its Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“ Ratable Portion ” or (other than in the expression “equally and ratably”) “ ratably ” means, with respect to any Lender, the percentage obtained by dividing (a) the Commitment of such Lender by (b) the aggregate Commitments of all Lenders (or, at any time after the Termination Date, the percentage obtained by dividing the aggregate outstanding principal balance of the Total Outstandings owing to such Lender by the aggregate outstanding principal balance of the Total Outstandings owing to all Lenders).
“ Raw Coal ” means Coal having been extracted from a Mine but not yet put through the washing process.
“ Reasonable Credit Judgment ” means the Administrative Agent’s commercially reasonable credit judgment (from the perspective of a secured asset-based lender), in accordance with customary business practices for comparable asset-based lending transactions exercised in good faith; provided that as it relates to the establishment of Reserves or the adjustment or imposition of exclusionary criteria, Reasonable Credit Judgment will require that (a) such establishment, adjustment or imposition after the Closing Date be based on the analysis of facts, events, conditions or contingencies first occurring or first

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discovered by the Administrative Agent after the Closing Date or that are materially different from facts, events, conditions or contingencies known to the Administrative Agent on the Closing Date, (b) the imposition or increase of any Reserve shall not duplicate (x) the exclusionary criteria set forth in the definitions of “Eligible Account,” “Eligible Unbilled Account” and “Eligible Inventory,” as applicable (and vice versa), or (y) any Reserves deducted in computing book value or Net Orderly Liquidation Value and (c) the amount of any such Reserve so established or the effect of any adjustment or imposition of exclusionary criteria shall bear a reasonable relationship to the effects that form the basis thereunder.
“ Recipient ” means (a) the Administrative Agent, (b) any Lender, (c) any L/C Issuer or (d) any other recipient of any payment to be made by or on account of any obligation of the Borrowers, as applicable.
“ Reclamation Funding Agreement ” means that certain Reclamation Funding Agreement, dated July 12, 2016, by and among: (a) Alpha Natural Resources, Inc., on behalf of itself and its debtor- affiliates; (b) Contura Energy, Inc.; (c) the Illinois Department of Natural Resources; (d) the Kentucky Energy and Environment Cabinet, Department for Natural Resources; (e) the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee; (f) the Commonwealth of Virginia, Department of Mines, Minerals and Energy; and (g) the West Virginia Department of Environmental Protection.
“ Refinance ” has the meaning specified in the definition of Permitted Refinancing Indebtedness. “ Register ” has the meaning specified in Section 11.06(c).
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and such Person’s and such Person’s Affiliates’ respective managers, administrators, trustees, members, partners, directors, officers, employees, agents, attorneys, fund managers, advisors and representatives.
“ Rent Reserve ” means each of (a) any reserve established by the Administrative Agent in its Reasonable Credit Judgment in respect of all past due rent and other amounts owing by any Borrower to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person who possesses any Inventory of the Borrowers or could assert a Lien on such Inventory or (b) in the case of any property, except for the Lamberts Point Terminal, where the value of any Inventory of the Borrowers is located, stored, used or held at such property exceeds $1,500,000 and with respect to which no Landlord Lien Waiver has been obtained, a three-month reserve against the Eligible Inventory held at such location established by the Administrative Agent.
“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“ Reports ” has the meaning specified in Section 9.15.
“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Borrowing Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swingline Loan, a Swingline Loan Notice.
“ Required Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Commitments; provided, (i) that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders and (ii) to the extent there are more than two Lenders

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(excluding Affiliates), “Required Lenders” shall also require the consent of at least two Lenders (excluding Affiliates).
“ Requirement of Law ” means as to any Person, the Organizational Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“ Reserve Area ” means (a) the real property owned in fee by any Loan Party or in which a Loan Party has a leasehold interest that is part of the areas listed on Schedule 1.01(d) and (b) any real property constituting coal reserves or access to coal reserves owned in fee by any Loan Party or in which a Loan Party has a leasehold interest, acquired after the Closing Date, that is not an active Mine.
“ Reserves ” means, without duplication, (i) the Rent Reserve, (ii) Shipping Reserves, (iii) the Hedging Reserve and (iv) other reserves established or maintained by the Administrative Agent in its Reasonable Credit Judgment to the extent such reserves relate to facts, events, conditions or contingencies first occurring or first discovered by the Administrative Agent after the Closing Date (or that are materially different from facts, events, conditions or contingencies known to the Administrative Agent on the Closing Date), and for which no reserves were imposed on the Closing Date, and which have, or could reasonably be expected to have, an adverse effect on the value of the Borrowing Base Collateral or the Liens of the Administrative Agent thereon.
“ Residual Mechanic's Liens ” means the mechanic's Liens existing on the Closing Date securing the payment of unpaid liabilities in respect of supplied labor or materials filed against certain properties of the Loan Parties located in Pennsylvania for so long as such Liens (a) are being satisfied in accordance with that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as modified, for Alpha Natural Resources, Inc., as confirmed on July 12, 2016 and (b) do not secure obligations in excess of $1,000,000 in the aggregate at any time outstanding.
“ Residual Property Tax Liens ” means the Liens existing on the Closing Date securing the payment of unpaid Taxes in respect of real property interests filed against certain properties of the Loan Parties located in Pennsylvania, West Virginia, Virginia and Wyoming for so long as such Liens (a) are being satisfied in accordance with that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as modified, for Alpha Natural Resources, Inc., as confirmed on July 12, 2016 and (b) do not secure obligations in excess of $10,000,000 in the aggregate at any time outstanding.
“ Responsible Officer ” of any person shall mean any executive officer, president, chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement and with respect to financial and tax matters, the chief financial officer, treasurer or assistant treasurer of any Borrower.
“ Restricted Payment ” means (a) any dividend or other distribution (whether in cash, securities or other property) by the Company or any Restricted Subsidiary with respect to its Capital Stock, or any payment (whether in cash, securities or other property) by the Company or any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any of its Capital Stock, or on account of any return of capital to its stockholders, partners or members (or the equivalent Person thereof) and (b) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any unsecured

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Indebtedness for borrowed money, Subordinated Indebtedness, Junior Lien Indebtedness or any voluntary prepayments made under the Term Loan Facility.
“ Restricted Subsidiary ” means any Subsidiary that is not an Unrestricted Subsidiary.
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.
“ Sanctioned Person ” means, at any time, any Person with which dealings are prohibited by Sanctions.
“ Sanctions ” has the meaning specified in Section 5.17(a).
“ Sanctions Laws ” has the meaning specified in Section 5.17(a).
“ Screen Rate ” means the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as shall be selected by the Administrative Agent in its reasonable discretion.
“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“ Secured Agreement ” means any Secured Cash Management Agreement or Secured Hedge Agreement.
“ Secured Cash Management Agreement ” means (i) any Cash Management Agreement that is entered into by and between the Borrowers and any Cash Management Bank to the extent designated as such by the Borrowers and such Cash Management Bank in writing to the Administrative Agent from time to time in accordance with Section 11.16 and (ii) each Existing Secured Agreement listed on Schedule 7.03 as an “ Existing Secured Cash Management Agreement ”.
“ Secured Hedge Agreement ” means any Hedging Agreement permitted under Article VII that is entered into by and between the Borrowers and any Hedge Bank to the extent designated as such by the Borrowers and such Hedge Bank in writing to the Administrative Agent from time to time in accordance with Section 11.16 and (ii) each Existing Secured Agreement listed on Schedule 7.03 as an “ Existing Secured Hedge Agreement ”.
“ Secured Parties ” means, collectively, (i) the Lenders, (ii) each L/C Issuer, (iii) the Administrative Agent and Collateral Agent, (iv) each Hedge Bank that is a counterparty to a Secured Hedge Agreement with a Loan Party, (v) each Cash Management Bank that is party to a Secured Cash Management Agreement with a Loan Party, (vi) the Arrangers, and (vii) beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.
“ Securities Account ” has the meaning specified in the UCC.
“ Security ” has the meaning specified in the UCC.

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“ Security Agreement ” means that certain Pledge and Security Agreement, dated as of the date hereof, by and among the Administrative Agent and each of the Loan Parties party thereto, substantially in the form of Exhibit H, as amended, restated, amended and restated supplemented or otherwise modified from time to time.
“ Shipping Reserves ” means any reserve established by the Administrative Agent in its Reasonable Credit Judgment for amounts payable to (a) Norfolk Southern Railway or its Affiliates (or any successor owner or operator of Lamberts Point Terminal, (b) CSX Transportation or its Affiliates (or any successor owner or operator of Chesapeake Bay Piers or (c) any additional rail carrier or rail forwarder utilized by the Borrowers from time to time.
“ Similar Business ” means any of the following, whether domestic or foreign: the mining, production, marketing, sale, trading and transportation (including, without limitation, any business related to terminals) of natural resources including coal, ancillary natural resources and mineral products, exploration of natural resources, any acquired business activity so long as a material portion of such acquired business was otherwise a Similar Business, and any business that is ancillary or complementary to the foregoing.
“ Solvent ” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date and reflected in the projections delivered pursuant to Section 4.01(a)(xi) or with respect to any transaction contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).
“ Specified Transaction ” has the meaning specified in Section 1.08.
“ Subordinated Indebtedness ” means any Indebtedness of the Company and its Restricted Subsidiaries that is contractually subordinated to the Indebtedness under the Loan Documents on terms reasonably satisfactory to the Administrative Agent.
“ Subsidiary ” of a Person means a corporation, partnership, Joint Venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly, or indirectly through one or more intermediaries, or both, by such Person; provided that, notwithstanding the foregoing, DTA will not be a “Subsidiary” for purposes of this Agreement (other than solely for purposes of Section 6.01 of this Agreement and with respect to any financial ratios and other financial calculations); provided further, that the Owner Trust shall not be considered a Subsidiary of any Loan Party. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“ Supermajority Lenders ” means, as of any date of determination, Lenders holding more than 66.67% of the sum of (a) the Total Outstandings (with the aggregate amount of each Lender’s risk

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participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Commitments; provided, that (i) the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders and (ii) to the extent there are more than two Lenders (excluding Affiliates), “Supermajority Lenders” shall also require the consent of at least two Lenders (excluding Affiliates).
“ Supplemental Administrative Agent ” has the meaning specified in Section 9.14(a).
“ Supporting Obligation ” has the meaning specified in the UCC.
“ Surety Bonds ” means surety bonds obtained by the Company or any Restricted Subsidiary in the ordinary course of business and the indemnification or reimbursement obligations of the Company or such Restricted Subsidiary in connection therewith.
“ Swingline ” means the revolving credit facility made available by the Swingline Lender pursuant to Section 2.045.
“ Swingline Borrowing ” means a borrowing of a Swingline Loan pursuant to Section 2.05.
“ Swingline Lender ” means Citibank, N.A. or any other Lender that agrees, with the approval of the Administrative Agent and the Borrowers, to act as the Swingline Lender hereunder.
“ Swingline Loan ” has the meaning specified in Section 2.05(a).
“ Swingline Loan Notice ” means a notice of a Swingline Borrowing pursuant to Section 2.05(b), which, if in writing, shall be substantially in the form of Exhibit D.
“ Swingline Sublimit ” means an amount equal to $10,000,000. The Swingline Sublimit is part of, and not in addition to, the aggregate Commitments.
“ Tangible Assets ” means at any date, with respect to any Person, (a) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of such Person at such date minus (b) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the captions “goodwill” or other intangible categories (or any like caption) on a consolidated balance sheet of such Person on such date.
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“ Term Loan Agent ” means Jefferies Finance LLC, in its capacities as administrative agent and collateral agent under the Term Loan Credit Agreement or any successor agent.
“ Term Loan Credit Agreement ” means that certain Credit Agreement, dated as of March 17, 2017, by and among, inter alios, the Company, as borrower, Jefferies Finance LLC, as administrative agent and collateral agent, and the other lenders party thereto from time to time.
“ Term Loan Credit Documents ” means the “Loan Documents” as defined in the Term Loan Credit Agreement.

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“ Term Loan Facility ” means the “Facility” as defined in the Term Loan Credit Agreement.
“ Term Loan Intercreditor Agreement ” means an intercreditor agreement to be entered into
between the Term Loan Agent and the Collateral Agent that sets forth the relative priority of the Priority Liens and the Junior Liens (as each such term is defined in such Term Loan Intercreditor Agreement), on the one hand, compared to the Liens on the Term Loan Priority Collateral, on the other hand, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“ Term Loan Obligations ” means the “Obligations” as defined in the Term Loan Credit Agreement.
“ Term Loan Priority Collateral ” has the meaning assigned to such term in the Term Loan Intercreditor Agreement.
“ Termination Date ” means the earliest of (i) the Maturity Date, (ii) the date of termination of the Commitments pursuant to Section 2.07 and (iii) the date of termination of the Commitment of each Lender and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.
“ Test Period ” means, at any time, the most recently ended period of four consecutive fiscal quarters of the Company ended on or prior to such time in respect of which financial statements for each quarter or fiscal year in such period have been or are required to be delivered pursuant to Section 6.01; provided that, prior to the first date that financial statements have been or are required to be delivered pursuant to Section 6.01, the Test Period in effect shall be the period from July 26, 2016 through December 31, 2016. For purposes of Section 7.17, Test Period means, at any time, the most recently ended period of four consecutive fiscal quarters of the Company ended on or prior to such time.
“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans and L/C Obligations.
“ Trademark Security Agreement ” means the Trademark Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.
“ Transaction Costs ” means, collectively, the costs, fees and expenses payable by the Company or any of its Subsidiaries in connection with the Facility and the Transactions.
“ Transactions ” means, collectively, (a) the entering into by the Loan Parties of the Loan Documents to which they are a party and (b) the payment of the Transaction Costs.
“ Three Rivers ” is located at Three Rivers Marine and Rail Terminals, 2124 Pennsylvania Route 906, Belle Vernon, Pennsylvania 15012
“ Threshold Amount ” means $25,000,000.
“ Type ” means, with respect to any Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
“ U.S. Government Obligations ” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agency or instrumentality thereof, provided that the full faith and credit of the United States of America is pledged in support thereof.

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“ UCC ” means the Uniform Commercial Code as in effect in the State of New York; provided that if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “ UCC ” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non- perfection or priority.
“ UFCA ” has the meaning specified in Section 11.19.
“ UFTA ” has the meaning specified in Section 11.19.
“ UMWA ” means United Mine Workers of America.
“ UMWA Note ” has the meaning specified in Section 7.03(t).
“ Unbilled Account ” means, on any date of determination, each Account of the Borrowers for which (a) the sale represented by such Account was made not more than 30 days prior to such date and (b) an invoice has not yet been sent to the applicable Account Debtor with respect to such Account.
“ Unfunded Pension Liability ” means the excess of a Pension Plan’s accrued benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“ United States ” and “ U.S. ” mean the United States of America.
“ Unreimbursed Amount ” has the meaning specified in Section 2.04(d)(i).
“ Unrestricted Subsidiary ” means any Subsidiary of the Company that becomes an Unrestricted Subsidiary in accordance with Section 6.13.
“ VEBA ” means the Voluntary Employee Beneficiary Association.
“ Voting Stock ” means, with respect to any Person, such Person’s Equity Interest having the right to vote for the election of directors of such Person under ordinary circumstances.
“ Wholly Owned Subsidiary ” of any Person shall mean a direct or indirect Subsidiary of such Person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such Person or another Wholly Owned Subsidiary or are owned together with another Person that is also a Wholly Owned Subsidiary or are owned together by more than one other Wholly Owned Subsidiary.
“ Withholding Agent ” means any Loan Party and Administrative Agent.
“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Section 1.02.      Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

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(a)      The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organizational Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof”, “hereto” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)      In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c)      Section headings herein and in the other Loan Documents are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Agreement or any other Loan Document.
Section 1.03.      Accounting Terms . (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b)      Changes in GAAP. If at any time any Accounting Change would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower Representative or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change as if such Accounting Change has not been made (subject to the approval of the Required Lenders); provided that, until so amended, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred. Notwithstanding the foregoing or anything to the contrary contained herein (including in the definitions of “ Financing Lease ” and/or “ Capital Lease Obligations ”), in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Leases in conformity with GAAP on the Closing Date shall be considered Financing Leases, and all calculations and determinations under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith.

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Section 1.04.      Times of Day . Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
Section 1.05.      Timing of Payment or Performance . In the event that any payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day that is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
Section 1.06.      Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Section 1.07.      Reserves . When any Reserve is to be established or a change in any amount, reserve, eligibility criteria or other item in the definitions of the terms “Borrowing Base” and “Eligible Accounts” is to be determined in each case in the Administrative Agent’s Reasonable Credit Judgment, such Reserve shall be implemented or such change shall become effective 3 Business Days following delivery of a written notice thereof to the Borrowers (such notice to include a reasonably detailed description of the Reserve being established), or immediately, without prior written notice, if such change is a result of a mathematical calculation and any Default or Event of Default has occurred and is continuing. During such 3 Business Day period, if applicable, the Administrative Agent will, if requested, discuss any such reserve or change with the Borrowers, and the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or change no longer exists or exists in a manner that would result in the establishment of a lower Reserve or result in a lesser change, in each case, in a manner and to the extent reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the specified percentages set forth in the definition of “Borrowing Base” will not be reduced without the consent of the Borrowers.
Section 1.08.      Pro Forma Calculations . Notwithstanding anything herein to the contrary, for purposes of calculating the Fixed Charge Coverage Ratio, any Investment or other acquisition (including any Permitted Acquisition), Disposition, Restricted Payment or Restricted Debt Payment (each, a “ Specified Transaction ”) the parties hereto acknowledge and agree that all calculations of (i) the Fixed Charge Coverage Ratio and the Payment Conditions, (ii) Consolidated Net Tangible Assets or (iii) any other test that is based on satisfying a financial ratio or metric, shall be made on a Pro Forma Basis (A) with respect to any acquisition by the Company or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the acquired Person or business for the most recent four fiscal quarter period for which financial statements are available (or if financial statements are not available for four consecutive fiscal quarters, the number of consecutive fiscal quarters for which financial statements are available) is equal to or greater than 5% of the Consolidated EBITDA of the Company and its Restricted Subsidiaries for such period and (B) with respect to any disposition by the Company or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the Person or business being disposed of for the most recent four fiscal quarter period for which financial statements are available (or if financial statements are not available for four consecutive fiscal quarters, the number of consecutive fiscal quarters for which financial statements are available) was equal to or exceeded 5% of the Consolidated EBITDA of the Company and its Restricted Subsidiaries for such period. With respect to the above Pro

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Forma Basis calculations, in the event that the relevant entity or property, which is being acquired or disposed, reports its financial results on a semi-annual basis, the Administrative Agent and the Company may utilize the two most recent semi-annual financial results for purposes of making such calculation and such above determination in a manner similar to the above that is mutually agreeable.
ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01.      Loans . Subject to Section 11.18 and the other terms and conditions set forth herein, each Lender severally agrees to make loans in Dollars (each such loan, a “ Loan ”) to a Borrower from time to time, on any Business Day during the Availability Period, in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect to any Borrowing, (i) the Total Outstandings shall not exceed the Maximum Revolving Credit and (ii) the aggregate Outstanding Amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans at such time shall not exceed such Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, any Borrower may borrow under this Section 2.01, prepay under Section 2.05(f), and reborrow under this Section 2.01. The Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
Section 2.02.      Borrowings, Conversions and Continuations of Loans . (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the applicable Borrower’s irrevocable written notice to the Administrative Agent, which may be given by, subject to Section 11.02(b), by e-mail. Each such notice must be received by the Administrative Agent not later than 12:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of any conversion of Eurocurrency Rate Loans, and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans. Not later than 12:00 p.m., three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans, the Administrative Agent shall notify the applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each written notice by the Borrowers pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Borrowing Notice or Notice of Conversion or Continuation, as applicable, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Section 2.04(d), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing Notice shall specify (i) the applicable Borrower is requesting a Borrowing, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, (iv) the Type of Loans to be borrowed and (v) the duration of the Interest Period with respect thereto, if applicable. Each Notice of Conversion or Continuation shall specify (i) whether the applicable Borrower is requesting a conversion of Loans from one Type to the other or a continuation of Loans that are Eurocurrency Rate Loans, and (ii) specifying (A) the amount and Type of Loan being converted or continued, (B) in the case of a conversion to or a continuation of Eurocurrency Rate Loans, the applicable Interest Period and (C) in the case of a conversion, the date of such conversion. If a Borrower fails to specify a Type of Loan in a Borrowing Notice or if such Borrower fail to give a timely Notice of Conversion or Continuation with respect to Eurocurrency Rate Loans, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the applicable Borrower request a

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Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Borrowing Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)      Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the applicable Loan, and if no timely notice of a conversion or continuation is provided by the Borrowers, the Administrative Agent shall notify each such Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of any Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Borrowing Notice. Upon satisfaction or waiver of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is on the Closing Date, Section 4.01), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the applicable Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the applicable Borrower; provided, however, that if, on the date a Borrowing Notice with respect to a Borrowing is given by a Borrower, there are L/C Advances outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any Unreimbursed Amounts in respect thereof, and second, shall be made available to the applicable Borrower as provided above.
(c)      Unless the Lenders are compensated for any losses under Section 3.05, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans if the Required Lenders or the Administrative Agent so notify the applicable Borrower.
(d)      The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the applicable Borrower and the Lenders of any change in the Administrative Agent’s “prime rate” used in determining the Base Rate promptly following the public announcement of such change.
(e)      After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than five (5) Interest Periods in effect under the Facility.
Section 2.03.      Protective Advances . (a) The Administrative Agent shall be authorized, in its sole discretion (but with no obligation), (i) after the occurrence and during the continuation of an Event of Default or (ii) at any time that all conditions in Section 4.02 are not satisfied, to make Loans (“ Protective Advances ”) in an aggregate principal amount outstanding not to exceed 5.0% of the Commitment at any time, if the Administrative Agent deems, in its Reasonable Credit Judgment, that such are Loans necessary or desirable to preserve or protect the Collateral, to enhance the collectability or repayment of the Obligations or, to pay any other amounts chargeable to the Loan Parties under any Loan Documents, including costs, fees and expenses (it being understood that the Administrative Agent shall not be entitled to make Protective Advances for other amounts chargeable to the Loan Parties, including payment of costs, fees and expenses, without the Company’s written consent unless an Event of Default shall have occurred and is continuing). Subject to the following paragraph, each Lender shall participate in Protective Advances on a pro rata basis. Required Lenders may prospectively revoke Administrative Agent’s ability to make such Protective Advances by written notice to Administrative Agent. All Protective Advances shall

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constitute Base Rate Loans and shall bear interest at the Base Rate plus the Applicable Rate and the Default Rate under Section 2.09(b)(i). Each Protective Advance shall be payable on demand.
(b)      Notwithstanding anything contained in this Agreement or any other Loan Document, no Protective Advance may be made by Administrative Agent if (i) such advance would cause the aggregate principal amount of all Protective Advances outstanding to exceed 5.0% of the aggregate Commitments or (ii) after giving effect to such Protective Advance, Total Outstandings at such time exceed the Commitments.
(c)      Each Protective Advance shall be secured by the Liens in favor of the Administrative Agent on the Collateral and shall constitute Obligations hereunder. The making of a Protective Advance on any one occasion shall not obligate the Administrative Agent to make any Protective Advance on any other occasion. At any time that the conditions precedent set forth in Section 4.2 have been satisfied or waived, the Administrative Agent may request that the Lenders to make a Loan to repay any Protective Advances.
(d)      Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default or Event of Default), each Lender shall be deemed, without further action by any party hereto, unconditionally and irrevocably to have purchased from the Administrative Agent without recourse or warranty, an undivided interest and participation in such Protective Advance, in proportion to its Applicable Percentage, and upon demand by the Administrative Agent, shall fund such participation to the Administrative Agent.
Section 2.04.      Letters of Credit . (a) The Letter of Credit Commitment. Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers or any other Loan Party, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.04(c), and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers or any other Loan Party and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the L/C Obligations outstanding with respect to such L/C Issuer shall not exceed the L/C Sublimit of such L/C Issuer, (x) the aggregate amount of L/C Obligations shall not exceed the L/C Sublimit of all L/C Issuers taken as a whole, (y) the Total Outstandings shall not exceed the Maximum Revolving Credit and (z) the Outstanding Amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans at such time shall not exceed such Lender’s Commitment. Each Borrower hereby agrees to use commercially reasonable efforts to allocate the aggregate face amount of each Letter of Credit issued hereunder ratably among the L/C Issuers in accordance with their respective individual L/C Sublimit. Each request by the Borrowers or any other Loan Party for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the applicable Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(b)      (i) No L/C Issuer shall issue any Letter of Credit if the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the applicable L/C Issuer in its sole discretion and all the Lenders, have approved such expiry date.

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(ii)      No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A)      any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B)      the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C)      except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(D)      such Letter of Credit is to be denominated in a currency other than Dollars;
(E)      subject to Section 2.04(c)(iv), such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F)      a default of any Lender’s obligations to fund under Section 2.04(d) exists or any Lender is at such time a Defaulting Lender hereunder, unless the applicable L/C Issuer has entered into satisfactory arrangements with the Borrowers or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender.
(iii)      No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would not have any obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv)      Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.
(v)      No L/C Issuer shall be required to issue documentary or “trade” Letters of Credit (as opposed to “standby” Letters of Credit).

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(c)      Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Such Letter of Credit Application must be received by such L/C Issuer and the Administrative Agent not later than 11:00 a.m. (New York City time) at least five Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and substance reasonably satisfactory to the applicable L/C Issuer: (A)     the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and substance reasonably satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may reasonably require. Additionally, the applicable Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
(i)      Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless such L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the applicable L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the applicable L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(ii)      If a Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the applicable L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving written prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrowers shall not be required to make a specific request to the applicable L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the

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Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the applicable L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.04(b)), or (B) it has received written notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date from the Administrative Agent or the Borrowers that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the applicable L/C Issuer not to permit such extension.
(iii)      If a Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “ Auto-Reinstatement Letter of Credit ”). Unless otherwise directed by the applicable L/C Issuer, such Borrower shall not be required to make a specific request to the applicable L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving written notice of such non-reinstatement within a specified number of days after such drawing (the “ Non-Reinstatement Deadline ”), the applicable L/C Issuer shall not permit such reinstatement if it has received a written notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline from the Administrative Agent or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the applicable L/C Issuer not to permit such reinstatement.
(iv)      Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the applicable Borrower a true and complete copy of such Letter of Credit or amendment.
(d)      Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. The applicable Borrower shall reimburse such L/C Issuer through the Administrative Agent, either with its own funds or with the proceeds of Loans under the Facility, in an amount equal to the amount of such drawing within two Business Days following the date on which such Borrower receives notice of any payment by such L/C Issuer under a Letter of Credit, provided that the Borrowers receive notice by 1:00 p.m., New York City time on such date, or on the second Business Day if notice is not received by such time (each such date, an “ Honor Date ”). If such Borrower fails to so reimburse such L/C Issuer by the time set forth in the preceding sentence, the applicable L/C Issuer shall promptly notify the Administrative Agent of the Honor Date and the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”). The Administrative Agent shall, in the case of a payment under a Letter of Credit, promptly notify each Lender thereof and of the amount of such Lender’s Applicable Percentage

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thereof. Any notice given by such L/C Issuer or the Administrative Agent pursuant to this Section 2.04(d)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(i)      Each Lender shall upon any notice pursuant to Section 2.04(d)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. (New York City time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.04(d)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the relevant Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.
(ii)      With respect to any Unreimbursed Amount for a payment under a Letter of Credit that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at (A) the rate applicable to Loans that are Base Rate Loans from the Honor Date to the date reimbursement is required pursuant to Section 2.04(d)(i) and (B) thereafter, the Default Rate. Each Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.04(d)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.034.
(iii)      Until each Lender funds its Loan or L/C Advance pursuant to this Section 2.04(d) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the applicable L/C Issuer.
(iv)      Each Lender’s obligation to make Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.04(d), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrowers or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing (it being understood and agreed that each Lender’s obligation to make Loans pursuant to this Section 2.04(d) shall not be subject to the conditions set forth in Section 4.02). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(v)      If any Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(d) by the time specified in Section 2.04(d)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a

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rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.04(d)(vi) shall be conclusive absent manifest error.
(e)      Repayment of Participations. (i) At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.04(d), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of cash collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(i)      If any payment received by the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.04(d) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(f)      Obligations Absolute. The obligation of the Borrowers to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each Unreimbursed Amount shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)      any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii)      the existence of any claim, counterclaim, setoff, defense or other right that such Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer or any Lender, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)      any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit, except to the extent caused by the applicable L/C Issuer’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment;

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(iv)      any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit, so long as the L/C Issuer shall have determined in the absence of gross negligence or willful misconduct, in good faith and in accordance with the standard of care specified in the Uniform Commercial Code of the State of New York, that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment appear on their face to be in conformity with such Letter of Credit;
(v)      any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(vi)      any other action taken or omitted to be taken by the applicable L/C Issuer under or in connection with any Letter of Credit or the related drafts or documents, whether or not similar to any of the foregoing, that might, but for this Section 2.04(f)(vi), constitute a legal or equitable discharge of the Borrowers’ obligations hereunder.
The applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the applicable Borrower’s instructions or other irregularity, such Borrower will promptly notify the applicable L/C Issuer. Such Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(g)      Role of L/C Issuer. Each Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. Notwithstanding anything to the contrary herein the Borrowers may have a claim against the applicable L/C Issuer, and the applicable L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers which the applicable Borrower proves were caused by the applicable L/C Issuer’s willful misconduct or gross negligence as determined by a court of competent jurisdiction in a final, non-appealable judgment. In furtherance and not in limitation of the foregoing, the applicable L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the applicable L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

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(h)      Cash Collateral. (i) Upon the request of the Administrative Agent, (A) if, as of the Letter of Credit Expiration Date or the Termination Date, any L/C Obligation for any reason remains outstanding or (B) if an Event of Default has occurred and is continuing, the Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding Amount of such L/C Obligation.
(i)      Section 2.04 and 8.02(a)(iii) set forth certain additional requirements to deliver cash collateral hereunder. Cash collateral shall be maintained in the L/C Cash Collateral Account. If at any time the Administrative Agent determines that any funds held in the L/C Cash Collateral Account are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited in the L/C Cash Collateral Account, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held in the L/C Cash Collateral Account that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the L/C Issuer for the amount of such drawing.
(i)      Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C Issuer and the applicable Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.
(j)      Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate for Loans that are Eurocurrency Rate Loans times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees for Letters of Credit shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the last Business Day of each calendar quarter, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default under Section 8.01(a), (f) or (g) exists, all Letter of Credit Fees shall accrue at the Default Rate.
(k)      Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrowers shall pay to the Administrative Agent, for the account of the applicable L/C Issuer, a fronting fee with respect to each Letter of Credit, at the rate of 0.25% per annum on the face amount drawn under each Letter of Credit, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the last Business Day of each calendar quarter, in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Borrowers shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, negotiation, acceptance, transfer, amendment and other processing fees, and other standard costs and charges, of

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the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(l)      Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(m)      Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrowers shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrowers hereby acknowledge that the issuance of Letters of Credit for the account of any Subsidiary of any of the Borrowers inures to the benefit of the Borrowers, and that each Borrower’s business derives substantial benefits from the businesses of each such Subsidiary.
Section 2.05.      Swingline Loans . (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.05, to make loans (each such loan, a “ Swingline Loan ”) to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, however, that after giving effect to any Swingline Loan, (i) the Total Outstandings shall not exceed the Maximum Revolving Credit and (ii) the aggregate Outstanding Amount of the Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans at such time shall not exceed such Lender’s Commitment, and provided further that the Borrowers shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each Swingline Loan shall be a Base Rate Loan. Immediately upon the making of a Swingline Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b)      Borrowing Procedures. Each Swingline Borrowing shall be made upon the applicable Borrower’s irrevocable written notice to the Swingline Lender and the Administrative Agent. Each such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. (New York City time) on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. (New York City time) on the date of the proposed Swingline Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.05(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender will, not later than 3:00 p.m. (New York City time) on the borrowing date specified in such Swingline Loan Notice, make the amount of its Swingline Loan available to the applicable Borrower at its office by crediting the account of the applicable Borrower on the books of the Swingline Lender in immediately available funds.
(c)      Refinancing of Swingline Loans. (i) The Swingline Lender at any time in its sole and absolute discretion may, and in any event on the seventh calendar day after such Swingline Loan

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is made, shall request, on behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swingline Loans then outstanding or, in the case of any request given with respect to Swingline Loans which have been outstanding for seven calendar days, the amount of such outstanding Swingline Loans; provided that such Loans may, and upon the applicable Borrower’s request shall, be made as Eurocurrency Rate Loans if a Eurocurrency Rate Loan could otherwise be made pursuant to Section 2.02. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans or Eurocurrency Rate Loans, but subject to the unutilized portion of the aggregate Commitments and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the applicable Borrower with a copy of the applicable Borrowing Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Notice available to the Administrative Agent in immediately available funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. (New York City time) on the day specified in such Borrowing Notice, whereupon, subject to Section 2.05(c)(ii), each Swingline Lender that so makes funds available shall be deemed to have made a Base Rate Loan (or Eurocurrency Rate Loan, if applicable) to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii)      If for any reason any Swingline Loan cannot be refinanced by such a Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Lenders fund its risk participation in the relevant Swingline Loan and each Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.05(c)(i) shall be deemed payment in respect of such participation.
(iii)      If any Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(i), the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv)      Each Lender’s obligation to make Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.05(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing (it being understood and agreed that

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each Lender’s obligation to make Loans pursuant to this Section 2.05(c) shall not be subject to the conditions set forth in Section 4.02). No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swingline Loans, together with interest as provided herein.
(d)      Repayment of Participations. (i) At any time after any Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swingline Lender.
(ii)      If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Lender shall pay to the Swingline Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)      Interest for Account of Swingline Lender. The Swingline Lender shall be responsible for invoicing the Borrowers for interest on the Swingline Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.05 to refinance such Lender’s Applicable Percentage of any Swingline Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swingline Lender.
(f)      Payments of Swingline Loans. The Borrowers shall make all payments of principal and interest in respect of the Swingline Loans to the Administrative Agent, for the account of the Swingline Lender.
Section 2.06.      Prepayments . (a) Optional. The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 12:00 p.m. (1) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment. If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked, in each case, with the requirements of Section 3.05 to apply to any failure of the contingency to occur and any such extension or revocation. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.

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(b)      Mandatory. (i) If, at any time, the Total Outstandings at such time exceed the Maximum Revolving Credit, then, (i) to the extent that the Administrative Agent is exercising its rights to sweep cash under any Control Account, within one Business Day and (ii) to the extent that the Administrative Agent is not exercising its rights to sweep cash under any Control Account, within three Business Days, in either case, the Borrowers shall prepay the outstanding Loans and/or the Cash Collateralize the outstanding L/C Obligations (including by depositing funds in the L/C Cash Collateral Account pursuant to Section 2.04(h)(i)) in an aggregate amount sufficient to reduce the amount of Total Outstandings as of such date of payment to an amount less than or equal to the Maximum Revolving Credit; provided, however, that, subject to the provisions of Section 2.04(h)(ii), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Maximum Revolving Credit above at such time.
(ii)      At any time following the occurrence and during the continuation of a Liquidity Period, within one Business Day following the receipt of any Net Cash Proceeds in respect of any Disposition of ABL Priority Collateral or any Net Insurance/Condemnation Proceeds constituting ABL Priority Collateral, the Borrowers shall apply an amount equal to 100% of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as applicable, received with respect thereto to prepay the outstanding principal amount of the Loans and/or Cash Collateralize the outstanding L/C Obligations, and the Borrowers shall deliver an updated Borrowing Base Certificate to the Administrative Agent on the date of any such Disposition or receipt of Net Insurance/Condemnation Proceeds.
(iii)      Prepayments of the Facilities made pursuant to this Section 2.06(b), shall be applied, first, to the L/C Borrowings, Swingline Loans or Protective Advances, second, ratably to the outstanding Loans and third, to Cash Collateralize the remaining L/C Obligations.
(iv)      In the case of prepayments of the Facilities required pursuant to clause (i) or (ii) of this Section 2.06(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Loans, outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrowers for use in the ordinary course of their business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held in the L/C Cash Collateral Account shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
(c)      At the option of the Administrative Agent, principal on the Swingline Loans and interest, fees, expenses and other sums due and payable in respect of the Loans and Protective Advances may be paid from the proceeds of Swingline Loans or Loans. Each Borrower hereby authorizes the Swingline Lender to make such Swingline Loans pursuant to Section 2.05(a) and the Lenders to make such Loans pursuant to Section 2.05(b) from time to time in the amounts of any and all principal payable with respect to the Swingline Loans and interest, fees, expenses and other sums payable in respect of the Loans and Protective Advances, and further authorizes the Administrative Agent to give the Lenders notice of any Borrowing with respect to such Swingline Loans and Loans and to distribute the proceeds of such Swingline Loans and Loans to pay such amounts. The Borrowers agree that all such Swingline Loans and Loans so made shall be deemed to have been requested by it and directs that all proceeds thereof shall be used to pay such amounts.
Section 2.07.      Termination or Reduction of Commitments . (a) The Borrowers may, upon notice to the Administrative Agent, terminate, or from time to time permanently reduce, the Commitments;

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provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrowers shall not terminate or reduce the aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Maximum Revolving Credit; provided, that any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked, in each case, with the requirements of Section 3.05 to apply to any failure of the contingency to occur and any such extension or revocation. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the aggregate Commitments. Any reduction of the aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage.
(b)      Payment of Fees.    All fees in respect of the Facility accrued until the effective date of any termination of the Facility shall be paid on the effective date of such termination.
Section 2.08.      Repayment of Loans .
(a)      Loans. The Borrowers shall, on a joint and several basis in accordance with Section 11.18, repay to the Lenders on the Termination Date the aggregate principal amount of all Loans outstanding on such date.
(b)      Swingline Loans. The Borrowers shall, on a joint and several basis in accordance with Section 11.18, repay each Swingline Loan on the earlier to occur of (i) the date seven calendar days after such Loan is made and (ii) the Maturity Date.
Section 2.09.      Interest . (a) Subject to the provisions of Section 2.09(b):
(i)      Each Loan that is (A) a Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate and (B) a Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate;
(ii)      Each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)      (i) At any time during an Event of Default under Section 8.01(a), (f) or (g), or at the request of the Required Lenders during any other Event of Default, outstanding Loans and other amounts payable under this Agreement shall bear interest, to the fullest extent permitted by law, after as well as before judgment, at a rate per annum equal to the Default Rate; provided that no amount shall accrue pursuant to this Section 2.09(b) on any overdue amount or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c)      Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.
Section 2.10.      Fees. In addition to certain fees described in Sections 2.04(j) and (k):

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(a)      Commitment Fee. The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee (the “ Commitment Fee ”) equal to the Applicable Commitment Fee Rate. The Commitment Fee shall accrue at all times, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each calendar quarter, commencing with the first such date to occur after the Closing Date, and on the Termination Date.
(b)      Other Fees. The Borrowers shall pay to the Administrative Agent for its own account fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(c)      Defaulting Lender Fees. Notwithstanding anything herein to the contrary, during such period as a Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to clause (a) above (without prejudice to the rights of the Non-Defaulting Lenders in respect of such fees); provided that (i) to the extent that a Ratable Portion of the L/C Obligations of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section 2.16(a), such fees that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance with their respective Commitments, and (ii) to the extent that all or any portion of such L/C Obligations cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the applicable L/C Issuer.
Section 2.11.      Computation of Interest and Fees . (a) All computations of interest for Base Rate Loans (other than Loans bearing interest at the Base Rate based on clause (c) of the definition thereof) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.13(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.12.      Evidence of Debt . (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and, as part of the Register, by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender to the Borrowers made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note (payable to such Lender or its registered assigns), which shall evidence such Lender’s Loans to the Borrowers in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

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(b)      In addition to the accounts and records referred to in Section 2.12(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
Section 2.13.      Payments Generally; Administrative Agent’s Clawback . (a) General. All payments to be made by the Borrowers or the other Loan Parties shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers or the other Loan Parties hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its ratable share of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 3:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)      (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 2:00 p.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrowers severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans. If the Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)      Payments by Borrowers; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable L/C Issuer hereunder that such Borrowers will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in

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accordance herewith and may, in reliance upon such assumption, distribute to such Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this Section 2.13(b) shall be conclusive, absent manifest error.
(c)      Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to the Borrowers as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)      Obligations of Lenders Several. The obligations of (i) the Lenders hereunder to make Loans and to fund participations in Letters of Credit and (ii) all Lenders hereunder to make payments pursuant to Section 2.04(c) are several and not joint. The failure of (x) any Lender to make any Loan or to fund any such participation or (y) any Lender to make payment under Section 2.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to do so.
(e)      Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Section 2.14.      Sharing of Payments by Lenders . If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all Lenders at such time or (a) Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (i) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and/or, if applicable, subparticipations in L/C Obligations and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:

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(i)      if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)      the provisions of this Section 2.14 shall not be construed to apply to (A) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement, (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, subparticipations in L/C Obligations, or Swingline Loans to any assignee or participant, other than to the Borrowers or any Subsidiary thereof (as to which the provisions of this Section 2.14 shall apply), or (C) any payments pursuant to the Fee Letter.
The Borrowers consent to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrowers in the amount of such participation.
Section 2.15.      Increase in Facility . (a) Provided that no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, upon at least 7 Business Days’ prior written notice to the Administrative Agent (which shall promptly notify the Lenders thereof), the Borrowers may from time to time request an increase in the amount of the Commitments under the Facility (each, a “ Facility Increase ”) in an aggregate stated amount (for all such requests) not to exceed $25,000,000 (the “ Facility Increase Amount ”); provided that (i) any such request for a Facility Increase shall be in a minimum stated amount of $10,000,000 (or, if less, the entire remaining amount of the Facility Increase Amount), or such lower amount as determined by the Administrative Agent in its reasonable discretion, (ii) such increase shall be on the same terms (including with respect to margin, pricing, maturity and fees, other than any underwriting fees and arrangement fees applicable thereto) and pursuant to the exact same Loan Documents and any other documentation applicable to the Facility (provided that the Applicable Rate and the Commitment Fee applicable to the Facility may be increased to be identical to that for any Facility Increase to effectuate such Facility Increase) and (iii) such Facility Increase shall be Guaranteed by the exact same Guarantors and shall be secured by a Lien on the exact same Collateral ranking pari passu with the Lien securing the Facility (and no Facility Increase may be (x) Guaranteed by any Person that is not a Loan Party or (y) secured by any assets other than the Collateral).
(b)      Lender Elections to Increase. The Borrowers may seek commitments in respect of any Facility Increase from then-existing Lenders (each of which shall be entitled to agree or decline to participate in such Facility Increase in its sole discretion) or additional banks, financial institutions and other institutional lenders or investors who will become Lenders in connection with such Facility Increase (each, an “ Additional Lender ”); provided that each Additional Lender shall be approved by each of the Administrative Agent, the Swingline Lender and each L/C Issuer (such approval not to be unreasonably withheld, delayed or conditioned), to the extent approval thereof would be required pursuant to the definition of “ Eligible Assignee ” with respect to any assignment of Loans or Commitments.
(c)      Effective Date and Allocations. If the Facility is increased in accordance with this Section 2.15, the Administrative Agent and the Borrowers shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such Facility Increase. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such Facility Increase and the Increase Effective Date.

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(d)      Conditions to Effectiveness of Increase. As a condition precedent to such Facility Increase, the Borrowers shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date signed by a Responsible Officer of the Company (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Facility Increase, and (ii) in the case of the Borrowers, certifying that, before and after giving effect to such Facility Increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01, and (B) no Default or Event of Default has occurred and is continuing. The Borrowers shall prepay any Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any non-ratable increase in the Commitments under this Section 2.15.
(e)      Conflicting Provisions.    This Section shall supersede any conflicting provisions in Section 2.14 or Section 11.01.
Section 2.16.      Defaulting Lender.
(a)      Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i)      Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders; and
(ii)      Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or Swingline Lender hereunder; third, if so determined by the L/C Issuer or Swingline Lender hereunder, to be held as cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Swingline Loan or L/C Obligation; fourth, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuers or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by

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the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to clause (iii) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)      Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Outstanding Amount of any Non- Defaulting Lender’s Loans and L/C Obligations to exceed such Non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(iv)      Cash Collateral. If the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, cash collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.16(a)(ii).
(b)      Defaulting Lender Cure. If the Borrowers, the Administrative Agent, each L/C Issuer and each Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Facility (without giving effect to Section 2.16(a)(iii)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c)      New Swingline Loans / Letters of Credit. So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have not Fronting Exposure after giving effect to such Swingline Loans and (ii) no L/C

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Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01.      Taxes . (a) Payments Free of Taxes. Any and all payments by or on behalf of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith of the applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01(a)) the applicable Recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)      Payment of Other Taxes by the Borrowers. Without duplication of any obligation set forth in subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes.
(c)      Indemnification by the Borrowers. The Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient, or required to be withheld or deducted from a payment to such Recipient, on or with respect to any payment made by or on account of any obligation of the Loan Parties under any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.
(d)      Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01, the applicable Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e)      Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower Representative (with a copy to the Administrative Agent), at the time or times prescribed by applicable law and from time to time when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower Representative or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrower Representative or the Administrative Agent, shall

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deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower Representative or the Administrative Agent as will enable the Borrower Representative or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
Each Lender that is not a Foreign Lender shall deliver to the Borrower Representative and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable law or upon the reasonable request of the Borrower Representative or Administrative Agent), two duly completed and executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.
Without limiting the generality of the foregoing, each Foreign Lender shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable or any subsequent version thereof or successor thereto:
(i)      in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, duly completed and executed copies of IRS Form W-8BEN or IRS W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,
(ii)      duly completed and executed copies of IRS Form W-8ECI,
(iii)      in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit M-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) duly completed and executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable,
(iv)      to the extent a Foreign Lender is not the beneficial owner, duly completed and executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-2 or Exhibit M-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-4 on behalf of each such direct and indirect partner, and
(v)      duly completed and executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed and executed together with such supplementary documentation as may be prescribed by applicable law to permit the Company or Administrative Agent to

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determine the withholding or deduction required to be made; provided that notwithstanding anything to the contrary in this Section 3.01(e), the completion, execution and submission of the documentation described in this clause (v) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Representative and the Administrative Agent at the time or times prescribed by law and at such time or times as reasonably requested by the Borrower Representative or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower Representative or the Administrative Agent as may be necessary for the Borrower Representative and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for the purposes of this paragraph, “ FATCA ” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Administrative Agent in writing of its legal inability to do so.
Notwithstanding the foregoing, no Lender or any Participant shall be required to deliver any form or other document under this Section 3.01(e) that it is not legally entitled to deliver.
(f)      Treatment of Certain Refunds. If the Administrative Agent or any Lender receives a refund with respect to Taxes to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), which in the reasonable discretion and judgment exercised in good faith of such Administrative Agent or Lender is allocable to such payment, it shall promptly pay such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out- of-pocket expenses (including Taxes) of such Administrative Agent or Lender incurred in obtaining such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that the Borrowers agree to promptly return such amount, net of any incremental additional costs ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority), to the applicable Administrative Agent or Lender, as the case may be, if it receives notice from the applicable Administrative Agent or Lender that such Administrative Agent or Lender is required to repay such refund to the relevant Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrowers pursuant to this paragraph (f) the payment of which would place the Administrative Agent or any Lender in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrowers or any other Person.

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(g)      Indemnification by the Lender. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 3.01(g)
(h)      Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(i)      Defined Terms. For purpose of this Section 3.01, any term “Lender” includes any L/C Issuer and the term “applicable law” includes FATCA.
Section 3.02.      Illegality . If any Lender determines that as a result of any Change in Law it becomes unlawful, or that any Governmental Authority asserts that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower Representative through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurocurrency Rate Loans or to convert Base Rate Loan to Eurocurrency Rate Loans, shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower Representative that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower Representative shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender, which it shall do as promptly as possible, that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.

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Section 3.03.      Inability to Determine Rates . If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (b) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Borrower Representative and each Lender. Thereafter, (i) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended and (ii) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (upon the instruction of the Required Lenders, who agree to so instruct the Administrative Agent once the circumstances giving rise to the inability ability to determine rates no longer exist) revokes such notice. Upon receipt of such notice, the Borrower Representative may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
Section 3.04.      Increased Costs; Reserves on Eurocurrency Rate Loans.
(a)      Increased Costs Generally. If any Change in Law shall:
(i)      impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency Rate contemplated by Section 3.04(e)) or any L/C Issuer;
(ii)      subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)      impose on any Lender or L/C Issuer or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such other Recipient of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Administrative Agent, Lender or L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such other Recipient (whether of principal, interest or any other amount) then, upon written request of such Lender or such other Recipient setting forth in reasonable detail such increased costs, the Borrowers will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered; provided that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be materially disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate

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a different Eurocurrency lending office if the making of such designation would allow the Lender or its Eurocurrency lending office to continue to perform its obligation to make Eurocurrency Rate Loans or to continue to fund or maintain Eurocurrency Rate Loans and avoid the need for, or reduce the amount of, such increased cost.
(b)      Capital Requirements. If any Lender or L/C Issuer reasonably determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time, after submission to the Borrowers (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the change and the calculation of such reduced rate of return, the Borrowers will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.
(c)      Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section 3.04, describing the basis therefor and showing the calculation thereof in reasonable detail, and delivered to the Borrowers shall be conclusive, absent manifest error. The Borrowers shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.
(d)      Delay in Requests. Failure or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that the Borrowers shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this this Section for any increased costs incurred or reductions suffered more than 90-days prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e)      Additional Reserve Requirements. The Borrowers shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “ Eurocurrency liabilities ”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as reasonably determined by such Lender in good faith, which determination shall be conclusive absent manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender

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in good faith, which determination shall be conclusive absent manifest error), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrowers shall have received at least 10 Business Days’ prior written notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender describing the basis therefor and showing the calculation thereof, in each case, in reasonable detail. If a Lender fails to give prior written notice 10 Business Days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable within 30 days from receipt of such notice.
(f)      Certain Rules Relating to the Payment of Additional Amounts. If any Lender requests compensation pursuant to this Section 3.04, or the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, such Lender shall either (A) forego payment of such additional amount from the Borrowers or (B) reasonably afford the Borrowers the opportunity to contest, and reasonably cooperate with the Borrowers in contesting, the imposition of any Indemnified Taxes or other amounts giving rise to such payment; provided that the Borrowers shall reimburse such Lender for its reasonable and documented out-of-pocket costs, including reasonable and documented attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrowers in contesting the imposition of such Indemnified Taxes or other amounts.
Section 3.05.      Compensation for Losses . Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)      any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)      any failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower Representative; or
(c)      any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrowers pursuant to Section 11.13;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract, but excluding any loss of anticipated profits. The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate used in determining the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
Section 3.06.      Mitigation Obligations; Replacement of Lenders.
(a)      Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives

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a notice pursuant to Section 3.02, then such Lender shall (i) use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (A) would eliminate or reduce amounts payable pursuant to Sections 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (B) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender and (ii) promptly inform the Borrower Representative and Administrative Agent when the circumstances giving rise to the applicability of such Sections no longer exists. The Borrowers hereby agree to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)      Replacement of Lenders. If any Lender requests compensation under Section 3.04, if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, if any Lender gives a notice pursuant to Section 3.02 or if any Lender is at such time a Defaulting Lender, then the Borrowers may replace such Lender in accordance with Section 11.13.
Section 3.07.      Survival . The parties’ obligations under this Article III shall survive termination of the aggregate Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01.      Conditions of Effectiveness . The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent:
(a)      The Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i)      executed counterparts of this Agreement executed by the Administrative Agent, each Lender and each Loan Party;
(ii)      each Note executed by the Borrowers in favor of each Lender requesting a Note or Notes;
(iii)      the Security Agreement executed by each Loan Party;
(iv)      the Term Loan Intercreditor Agreement executed by the Borrowers and the Term Loan Agent;
(v)      the Fee Letter executed by the Company and the Administrative Agent;
(vi)      such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or

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Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;
(vii)      such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(viii)      the executed opinion of Hunton & Williams LLP, counsel to the Company and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, in form and substance reasonably acceptable to the Administrative Agent and Collateral Agent;
(ix)      (i) unaudited consolidated financial statements for the quarter ending September 30, 2016 prepared in accordance with GAAP and (ii) financial projections (including the assumption on which such projections are based) for fiscal years 2017 through 2021;
(x)      a certificate signed by a Responsible Officer of the Company certifying that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has not occurred since December 31, 2016, any Material Adverse Effect;
(xi)      a solvency certificate from the chief financial officer of the Company in the form of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent
(xii)      copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (other than Permitted Liens);
(xiii)      the Collateral Questionnaire, executed by each Loan Party; and
(xiv)      a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation.
(b)      (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Fee Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders to the extent invoices have been received by the Company at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by the Company) shall have been paid.

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(c)      The Company and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d)      The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 6.07.
(e)      In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i)      executed counterparts of the Security Agreement;
(ii)      evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii)      fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(iv)      evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(f)      There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in writing in any court or before any arbitrator or Governmental Authority that impairs the ability of the Loan Parties to consummate the Transactions and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.
(g)      The Arrangers and the Agents shall have received at least three business days prior to the Closing Date all documentation and other information required by the Arrangers’ and the Agents’ regulatory authorities with respect to the Company and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Closing Date.

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(h)      On the Closing Date, neither the Company nor any of its Subsidiaries shall have any material Indebtedness other than Indebtedness permitted pursuant to Section 7.03.
(i)      Since December 16, 2016, no Material Adverse Effect shall have occurred.
(j)      The Administrative Agent shall have received any promissory note required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k)      The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(l)      No Default or Event of Default shall have occurred and be continuing, or would result, from any Credit Extension or from the application of the proceeds thereof on the Closing Date.
For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under any Loan Document to be consented to or approved by or acceptable or satisfactory to such Lender, unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
Section 4.02.      Conditions to All Credit Extensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a)      The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02 following the Closing Date, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(b)      No Default or Event of Default shall have occurred and be continuing, or would result, from such proposed Credit Extension or from the application of the proceeds thereof.
(c)      After giving effect to any Credit Extension (or the incurrence of any L/C Obligations), the Total Outstandings shall not exceed the Maximum Revolving Credit;

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(d)      The Administrative Agent and, if applicable, each applicable L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrowers shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a), (b) and (c) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers and each Guarantor, on behalf of themselves and their respective Subsidiaries, represents and warrants to the Administrative Agent and the Lenders that:
Section 5.01.      Existence, Qualification and Power . Each of the Borrowers and their Restricted Subsidiaries (a) (i) is duly organized or formed and validly existing and (ii) is in good standing under the Laws of the jurisdiction of its incorporation or organization, if such legal concept is applicable in such jurisdiction, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified, licensed, and in good standing (to the extent good standing is an applicable legal concept in the relevant jurisdiction), under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clauses (a)(ii), (b)(i) or (c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
Section 5.02.      Authorization; No Contravention . The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) violate the terms of any of such Person’s Organizational Documents; (ii) violate or result in any breach of, or the creation of, any Lien (except for any Liens that may arise under the Loan Documents) under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority to which such Person or its property is subject or (C) any arbitral award to which such Person or its property is subject; or (iii) violate any Law binding on such Loan Party, except in each case referred to in clauses (b)(ii) or (b)(iii) to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
Section 5.03.      Governmental Authorization . No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions except for (a) the filing of UCC financing statements and certificates of title, (b) filings with the United States Patent and Trademark Office and the United States Copyright Office, (c) recordation of the Mortgages, (d) such consents, authorizations, filings or other actions that have either (i) been made or obtained and are in full force and effect or (ii) are listed on Schedule 5.03 and (e) such actions, consents and approvals the failure to be obtained or made which would not reasonably be expected to have a Material Adverse Effect.

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Section 5.04.      Binding Effect . This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally, general principles of equity, regardless of whether considered in a proceeding in equity or at law and an implied covenant of good faith and fair dealing.
Section 5.05.      Financial Statements; No Material Adverse Effect.
(a)      The Audited Financial Statements of the Company and its Subsidiaries (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b)      The unaudited consolidated balance sheet of the Company and its Subsidiaries dated September 30, 2016 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on such date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Company and its Subsidiaries as of such dates and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end adjustments.
(c)      There has not occurred, since December 31, 2016, any Material Adverse Effect.
(d)      The financial projections delivered pursuant to Section 4.01 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable in light of the conditions existing at the time of delivery of such forecasts (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the future developments addressed in such information can be realized, that actual results may differ and such differences may be material).
Section 5.06.      Litigation . There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of a Responsible Officer of the Company threatened in writing, at law, in equity, by or before any Governmental Authority, by or against the Company or any of its Restricted Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) as to which there is a reasonable possibility of an adverse determination and that, if so determined, would reasonably be expected to have a Material Adverse Effect.
Section 5.07.      No Default . None of the Company nor any of its Restricted Subsidiaries is in default under or with respect to any Contractual Obligation that would reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
Section 5.08.      Ownership and Identification of Property.

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(a)      The Company and its Restricted Subsidiaries have good record and marketable (subject to Permitted Liens) title in fee simple to, or valid leasehold, easement or contractual interests in, all real property necessary or used in the ordinary conduct of its business as it is currently conducted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, with respect to all real property listed on Schedule 5.08(c): (i) the Company and its Restricted Subsidiaries possess all leasehold interests necessary for the operation of the Mines currently being operated by each of them and included or purported to be included in the Collateral pursuant to the Collateral Documents, except where the failure to possess such leasehold interests would not reasonably be expected to have a Material Adverse Effect, (ii) each of their respective rights under the leases, contracts, rights-of-way and easements necessary for the operation of such Mines are in full force and effect, except to the extent that failure to maintain such leases, contracts, rights of way and easements in full force and effect would not reasonably be expected to have a Material Adverse Effect; and (iii) each of the Company and its Restricted Subsidiaries possesses all licenses, permits or franchises which are necessary to carry out its business as presently conducted at any Mine included or purported to be included in the Collateral pursuant to the Collateral Documents, except where failure to possess such licenses, permits or franchises would not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
(b)      Schedule 5.08(b) lists completely and correctly as of the Closing Date all Material Real Property fee owned by the Company and the other Loan Parties.
(c)      Schedule 5.08(c) lists completely and correctly as of the Closing Date all Material Real Property leased by the Company and the other Loan Parties and the lessors thereof.
Section 5.09.      Environmental Compliance . Except as disclosed on Schedule 5.09 and except as to matters that would not reasonably be likely to have a Material Adverse Effect:
(a)      To the knowledge of a Responsible Officer of the Company, the facilities and properties currently owned, leased or operated by the Company, or by any of its respective Restricted Subsidiaries (the “ Properties ”), do not contain any Hazardous Materials in amounts or concentrations which (i) constitute a violation of, or (ii) would reasonably be expected to give rise to liability under, any applicable Environmental Law.
(b)      None of the Company, nor any of its Restricted Subsidiaries, has received any written notice of violation, alleged violation, non-compliance, liability or potential liability regarding compliance with or liability under Environmental Laws with regard to any of the Properties or the business operated by the Company or by any of its Restricted Subsidiaries (the “ Business ”).
(c)      To the knowledge of a Responsible Officer of the Company, Hazardous Materials have not been transported or disposed of from the Properties by the Company or any Restricted Subsidiary in violation of, or in a manner or to a location which would reasonably be expected to give rise to liability under, any applicable Environmental Law, nor have any Hazardous Materials been generated, treated, stored or disposed of by the Company or any Restricted Subsidiary at or under any of the Properties in violation of, or in a manner that would reasonably be expected to give rise to liability under, any applicable Environmental Law.
(d)      No judicial proceeding or governmental or administrative action is pending or, to the knowledge of a Responsible Officer of the Company, threatened in writing under any Environmental Law to which the Company, or any of its Restricted Subsidiaries is or, to the knowledge of a Responsible Officer of the Company, will be named as a party or with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders

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or other orders, or other similar administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business.
(e)      To the knowledge of a Responsible Officer of the Company, there has been no release or threat of release of Hazardous Materials at or from the Properties, or arising from or related to the operations of the Company, or any of its Restricted Subsidiaries in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that would reasonably be expected to give rise to liability under any applicable Environmental Laws.
(f)      The Company, and each of its Restricted Subsidiaries, has obtained (or in a timely manner applied for), and is in compliance with, all Environmental Permits required for its business, as currently conducted, and all such Environmental Permits are in full force and effect.
Section 5.10.      Insurance.
(a)      The properties of the Company and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Restricted Subsidiary operates.
(b)      As to any Building located on Material Real Property and constituting Collateral, all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.
Section 5.11.      Taxes . The Company and its Restricted Subsidiaries have timely filed all applicable US Federal, state, foreign and other material tax returns and reports required to be filed, and have timely paid all US Federal, state, foreign and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP, if required, or (b) where failure to do any of the foregoing would not reasonably be expected to result in a Material Adverse Effect; no material tax Lien has been filed which would not be permitted under Section 7.1 and, to the knowledge of a Responsible Officer of the Company, no material claim is being asserted, with respect to any material tax, fee or other charge which would reasonably be expected to result in a Material Adverse Effect.
Section 5.12.      ERISA Compliance . Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(a)      Each Plan is in material compliance in all respects with the applicable provisions of ERISA, the Code and other Federal or state Laws (except that with respect to any Multiemployer Plan which is a Plan, such representation is deemed made only to the knowledge of a Responsible Officer of the Company), and each Foreign Plan is in material compliance in all respects with the applicable provisions of Laws applicable to such Foreign Plan.
(b)      There has been no nonexempt “prohibited transaction” (as defined in Section 406 of ERISA) or violation of the fiduciary responsibility rules with respect to any Plan.
(c)      (i) As of the Closing Date, no ERISA Event has occurred or is reasonably expected to occur; and (ii) no Pension Plan has any Unfunded Pension Liability.

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Section 5.13.      Subsidiaries . As of the Closing Date, the Company has no Subsidiaries other than those specifically disclosed in Schedule 5.13.
Section 5.14.      Margin Regulations; Investment Company Act.
(a)      The Company is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b)      Neither the Company nor any Restricted Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
Section 5.15.      Disclosure . No report, financial statement, certificate or other information (other than projections and other forward looking information and information of a general economic or industry nature) furnished in writing by or on behalf of any Loan Party to the Administrative Agent, the Collateral Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document, taken as whole with any other information furnished or publicly available, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading as of the date when made or delivered; provided that, with respect to any forecast, projection or other statement regarding future performance, future financial results or other future developments, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of delivery of such information (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the future developments addressed in such information can be realized, that actual results may differ and that such differences may be material).
Section 5.16.      Compliance with Laws . The Company and each Restricted Subsidiary is in compliance in all material respects with the requirements of all Laws (including any zoning, building, ordinance, code or approval or any building or mining permits and all orders, writs, injunctions and decrees applicable to it or to its properties), except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
Section 5.17.      Anti-Corruption; Sanctions; Terrorism Laws.
(a)      None of the Company, any Restricted Subsidiary nor, to the knowledge of a Responsible Officer of the Company, after due inquiry, any director, officer, agent, employee or Affiliate of the Company or any Restricted Subsidiary is (i) a person on the list of “Specially Designated Nationals and Blocked Persons” or (ii) subject of any active sanctions administered or enforced by the U.S. Department of State or the U.S. Department of Treasury (including the Office of Foreign Assets Control) or any other applicable governmental authority (collectively, “ Sanctions ”, and the associated laws, rules, regulations and orders, collectively, “ Sanctions Laws ”); and the Company will not directly or, to the knowledge of a Responsible Officer of the Company, after due inquiry, indirectly use the proceeds of the Loans for the purpose of financing the activities of any Person that is the subject of, or in any country or territory that at such time is the subject of, any Sanctions.
(b)      The Company and each Restricted Subsidiary is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control

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regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the USA PATRIOT Act (Title III of Pub. L. 107-56), as amended (the “ PATRIOT Act ”), (iii) Sanctions Laws and (iv) Anti- Corruption Laws.
(c)      No part of the proceeds of any Loan will be used, directly or, to the knowledge of a Responsible Officer of the Company, after due inquiry, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “ Anti-Corruption Laws ”).
Section 5.18.      Intellectual Property; Licenses, Etc . The Company and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “ IP Rights ”) that are reasonably necessary for the operation of their respective businesses, except where the failure to own or possess the right to use such IP Rights would not reasonably be expected to have a Material Adverse Effect. To the knowledge of a Responsible Officer of the Company, the use of such IP Rights by the Company or any Restricted Subsidiary does not infringe upon any rights held by any other Person except for any infringement that would not reasonably be expected to have a Material Adverse Effect. Except as specifically disclosed in Schedule 5.18, no claim or litigation regarding any of the foregoing is pending or, to the knowledge of a Responsible Officer of the Company, threatened in writing, which would reasonably be expected to have a Material Adverse Effect.
Section 5.19.      Collateral Documents.
(a)      (i) Each Collateral Document (other than each Mortgage), when executed and delivered, is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties), a legal, valid and enforceable security interest in the Collateral described therein and the Collateral Agent has been authorized (and is hereby authorized) to make all filings of UCC-1 and as-extracted collateral financing statements in the appropriate filing office necessary or desirable to fully perfect the Collateral Agent’s security interest in such Collateral described therein which can be perfected by filing a UCC-1 financing statement in the appropriate filing office, and (ii) with respect to the security interest created in the Collateral pursuant to each Collateral Document (other than each Mortgage), upon such filings (or, with respect to possessory Collateral, upon the taking of possession by the Collateral Agent (or by the Term Loan Agent as bailee for the Collateral Agent pursuant to the Term Loan Intercreditor Agreement, if applicable) of any such Collateral which may be perfected by possession), such security interests will constitute perfected First Priority Liens on, and security interests in, all right, title and interest of the debtor party thereto in the Collateral described therein that can be perfected by filing a UCC-1 or as-extracted financing statement, as applicable, in the appropriate filing office or by delivery, in the case of possessory Collateral.
(b)      Each of the Mortgages, when executed and delivered, will be effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable (subject to equity and creditors’ rights generally) lien on the Material Real Property described therein and such security interests will constitute, upon such Mortgage being and recorded in the appropriate filing offices, First Priority Liens on such Material Real Property, subject to Permitted Real Estate Encumbrances.

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Section 5.20.      Mines . Schedule 5.20 sets forth a complete and accurate list of any Mine (including addresses and the owner or lessor thereof) owned or operated by the Company or any of its Restricted Subsidiaries as of the Closing Date and included or purported to be included in the Collateral pursuant to the Collateral Documents.
Section 5.21.      Solvency . The Company and its Restricted Subsidiaries are and, upon the incurrence of any Obligation by any Loan Party on any date on which this representation and warranty is made, will be, on a consolidated basis, Solvent.
Section 5.22.      Labor Relations . Neither the Company nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that would reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against the Company or any of its Restricted Subsidiaries, or to the knowledge of a Responsible Officer of the Company, threatened in writing against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against the Company or any of its Restricted Subsidiaries or to the knowledge of a Responsible Officer of the Company, threatened in writing against any of them, (b) no strike or work stoppage in existence or, to the knowledge of a Responsible Officer of the Company, threatened in writing involving the Company or any of its Restricted Subsidiaries, and (c) to the knowledge of a Responsible Officer of the Company, no union representation question existing with respect to the employees of the Company or any of its Restricted Subsidiaries and, to the knowledge of a Responsible Officer of the Company, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.
Section 5.23.      Agreements . Neither the Company nor any of its Restricted Subsidiaries is a party to any agreement, instrument or other document or subject to any corporate or other constitutional restriction, or any restriction under its Organizational Documents, that has resulted, or would reasonably be expected to result, in a Material Adverse Effect.
Section 5.24.      Senior Debt . The Facility constitutes “ Senior Debt ”, as defined in any Intercreditor Agreement, for purposes of such Intercreditor Agreement.
Section 5.25.      Use of Proceeds . The Borrowers will use the proceeds of the Loans solely as provided for in Section 6.11.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than in respect of contingent obligations, indemnities and expenses related thereto not then payable or in existence as of the later of the Termination Date or the Letter of Credit Expiration Date), or any Letter of Credit shall remain outstanding, each Loan Party shall, and shall cause each of its respective Subsidiaries to:
Section 6.01.      Financial Statements . Deliver to the Administrative Agent for distribution by the Administrative Agent to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a)      as soon as available, but in any event within 120 days after the end of each fiscal year of the Company (or, if earlier, by the date that the Annual Report on Form 10-K of the Company

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for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal year ended December 31, 2016), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP; provided that the Company shall not be required to include comparable prior period financial statements and related information in any annual report prior to the quarterly report for the quarter ended September 30, 2017; such consolidated statements shall be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than with respect to or resulting from the upcoming maturity of any Loans under this Agreement or the Term Loan Credit Documents, occurring within one year from the time such opinion is delivered); and
(b)      as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal quarter ended March 31, 2017), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended, setting forth in each case in comparative form commencing with the fiscal quarter ended September 30, 2017, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail; such consolidated statements shall be certified by a Responsible Officer of the Company as fairly presenting in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
Section 6.02.      Certificates; Other Information . Deliver to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:
(a)      concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2017), (i) a duly completed Compliance Certificate signed by a Responsible Officer of the Company, which, if a Liquidity Period has occurred and is continuing at such time, shall include a reasonably detailed calculation of the financial covenant in Section 7.17 (ii) a detailed reconciliation of such financial information for the Company and its Restricted Subsidiaries, on the one hand, and the Company’s Unrestricted Subsidiaries, on the other hand; provided that, for the avoidance of doubt, any such reconciliation of the financial statements referred to in Section 6.01(a) shall not be audited.
(b)      promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Company with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its shareholders generally, as the case may be.
(c)      promptly, such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with the terms of the Loan

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Documents, as the Administrative Agent or any Lender may from time to time reasonably request and which the Company determines, in its sole discretion, may be provided to a third-party without causing a breach of any law, rule, regulation or contractual obligation of the Company or any Subsidiary.
(d)      as soon as available, not later than 90 days after the end of each fiscal year of the Company, a copy of summary projections by the Company of the operating budget and cash flow budget of the Company and its Subsidiaries for the succeeding fiscal year, such projections to be accompanied by a certificate of a Responsible Officer of the Company to the effect that such projections have been prepared based on assumptions believed by the Company to be reasonable (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
(e)      [Reserved];
(f)      a Borrowing Base Certificate substantially in the form of Exhibit G, as of the date required to be delivered or so requested, in each case with supporting documentation:
(i)      (A) monthly (as of the last day of each month (or, if such day is not a Business Day, as of the Business Day immediately preceding such last day)), commencing for the month ended March 31, 2017, on or before the twentieth day of each month or (B) during any Increased Reporting Period, weekly, as applicable, on or before the third Business Day of each week (provided, in the case of this clause (B), (1) Inventory reporting shall be updated on a bi- weekly basis and (2) ineligibility in respect of the eligibility criteria set forth in the definitions of “Eligible Accounts” and “Eligible Inventory” shall be reported on a monthly basis), in each case, which Borrowing Base Certificate shall reflect the Collateral contained in the Borrowing Base (including a breakdown of Eligible Inventory constituting Clean Coal and Raw Coal) updated as of last day of each month or week, as applicable, in each case, together with:
(u) an Accounts receivable aging report showing Accounts outstanding aged from the invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more, accompanied by a comparison to the prior month’s or week’s Accounts receivable aging report and supporting detail and documentation (including, without limitation, aged totals and customer names) as shall be reasonably satisfactory to the Administrative Agent
(v) a summary of unbilled shipments of each of the Borrowers, which shall include dates of shipment and customer names and accompanied by such supporting detail and documentation as shall be reasonably satisfactory to the Administrative Agent
(w) a roll-forward of billed Accounts of the Borrowers showing the ending balance as of the date of the most recently delivered Borrowing Base Certificate, billings, cash receipts, credit memos, other debit adjustments, and other credit adjustments for the current period, and the ending balance as of the date of the most recently delivered Borrowing Base Certificate;
(x) a summary of Inventory by location and type of each of the Loan Parties, accompanied by such supporting detail and documentation (including, without limitation, the name of the location of such Inventory, the quantity of Coal, the cost per ton and the total value thereof) as shall be reasonably satisfactory to the Administrative Agent;

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(y) a reconciliation of the Accounts receivable aging report and Inventory reports of each of the Loan Parties to the general ledger of such Loan Party; and
(z) with respect to Liens granted in favor of any surety on ABL Priority Collateral, written notice of entry into such arrangements.
(ii)      at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate and has delivered to the Company a written statement describing the material inaccuracy, as soon as reasonably available after such request, in each case with supporting documentation as the Administrative Agent may reasonably request, such other reports, statements and reconciliations with respect to the Borrowing Base or Collateral of any or all Loan Parties as the Administrative Agent shall from time to time reasonably request;
(g)      promptly (and in any event within three Business Days) after any Loan Party has knowledge that Accounts of the Loan Parties in an aggregate face amount of $5,000,000 or more cease to be Eligible Accounts, notice of such occurrence.
Documents required to be delivered pursuant to clauses (a) and (b) of Section 6.01 or clause (b) of Section 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.
The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “ Public Lender ”). The Company hereby agrees that so long as the Company is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (a) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Company shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Company or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); and (c) all Borrower Materials marked “PUBLIC” or not marked as containing material non-public information are permitted to be made available through a portion of the Platform designated “Public Investor.” Notwithstanding the foregoing, the Company shall not be under any obligation to mark the Borrower Materials “PUBLIC” or as containing material non-public information. In connection with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not in derogation of their confidentiality obligations under Section 11.07.
Section 6.03.      Notices . Notify the Administrative Agent (and the Administrative Agent shall promptly provide a copy of such notice to each Lender):
(a)      promptly, after knowledge of a Responsible Officer of the Company, of the occurrence of any Default or Event of Default hereunder or the occurrence of any “Default” or “Event of Default” under the Term Loan Credit Documents;

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(b)      promptly, after knowledge of a Responsible Officer of the Company, of any event which would reasonably be expected to have a Material Adverse Effect;
(c)      of the occurrence of any ERISA Event that, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect, as soon as possible and in any event within 30 days after a Responsible Officer of the Company knows or has obtained written notice thereof;
(d)      promptly, upon the filing or commencement of, or any written and known threat or written and known notice of intention of any person to file or commence, any action, suit, proceeding, claim or dispute whether at law or in equity or otherwise by or before any Governmental Authority, (i) against the Company or any of its Restricted Subsidiaries or against any of their properties or revenues that has had, or would reasonably be expected to result in, a Material Adverse Effect or (ii) with respect to this Agreement or any other Loan Document;
(e)      within 10 Business Days after any Borrower or any Guarantor changing its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business.
(f)      promptly, after knowledge of a Responsible Officer of the Company, as to any Building located on Material Real Property and constituting Collateral, any redesignation of any such property on which such Building is located into or out of a special flood hazard area.
Each notice pursuant to this Section 6.03 (which may be in electronic form) shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the applicable Borrowers have taken and proposes to take with respect thereto.
Section 6.04.      Payment of Obligations . Except where failure to do so would not reasonably be expected to result in a Material Adverse Effect, with respect to the Company and each of its Restricted Subsidiaries, pay their Indebtedness and other obligations promptly and in accordance with their terms and pay and discharge all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary.
Section 6.05.      Preservation of Existence . Preserve, renew and maintain in full force and effect its legal existence except in a transaction permitted by Section 7.04.
Section 6.06.      Maintenance of Properties.
(a)      Maintain, preserve and protect all of its material properties and material equipment, including Collateral, necessary (in the Company’s good faith judgment) to the operation of its business as then being conducted in the condition maintained by prudent operators in the industry, subject to the depletion of coal reserves in the ordinary course of business.
(b)      Except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect, keep in full force and effect all of its material leases and other material contract rights, and all material rights of way, easements and privileges necessary (in the Borrower’s good faith judgment) for the proper operation of the Mines then being operated by the Borrower or a Restricted Subsidiary and included or purported to be included in the Collateral by the Collateral Documents.

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Section 6.07.      Maintenance of Insurance.
(a)      Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Restricted Subsidiary operates, except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b)      With respect to any Building located on Material Real Property and constituting Collateral, the Company shall and shall cause each appropriate Loan Party to (i) maintain fully paid flood hazard insurance on any such Building that is located in a special flood hazard area, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 and (ii) upon the reasonable request of the Administrative Agent, furnish to the Administrative Agent an insurance certificate evidencing the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof (or at such other time acceptable to the Administrative Agent). The Company shall cooperate with the Administrative Agent’s reasonable request for any information reasonably required by the Administrative Agent to comply with The National Flood Insurance Reform Act of 1994, as amended.
(c)      Cause the Administrative Agent to at all times be named as lender’s loss payee and an additional insured (but without any liability for premiums), as applicable, under each insurance policy maintained under Section 6.07(a) providing coverage with respect to any Collateral (provided that the Company shall use commercially reasonable efforts to cause all property and casualty insurance policies with respect to the Material Real Property to include, if customary in the applicable jurisdiction, a “standard” or “New York” lender’s loss payable endorsement, in form and substance reasonably satisfactory to the Administrative Agent). The Borrowers shall use commercially reasonable efforts to cause each such insurance policy to provide, if customary in the applicable jurisdiction, that it shall not be canceled or not renewed upon less than 30 days’ prior written notice thereof by the insurer to the Administrative Agent.
Section 6.08.      Compliance with Laws . Comply in all respects with the requirements of all Laws (including the PATRIOT Act, Sanctions Laws, the Anti-Corruption Laws and Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect (or, in the case of compliance with the PATRIOT Act, Sanctions Laws and the Anti-Corruption Laws, the failure to comply therewith is not material).
Section 6.09.      Books and Records . (a) Maintain proper books of record and account, in conformity with GAAP, in which in all material respects full, true and correct entries in conformity with GAAP shall be made of all material financial transactions and matters involving the assets and business of the Company or such Restricted Subsidiary, as the case may be; and (a) maintain such books of record and account in material conformity with all material requirements of any Governmental Authority having regulatory jurisdiction over the Company or such Restricted Subsidiary, as the case may be.
Section 6.10.      Inspection Rights; Field Exams; Appraisals . (a) Upon reasonable advance written notice, permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof

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or abstracts therefrom (except to the extent (i) any such access is restricted by a Requirement of Law or (ii) any such agreements, contracts or the like are subject to a written confidentiality agreement with a non-Affiliate that prohibits the Company or any its Subsidiaries from granting such access to the Administrative Agent; provided that, with respect to such confidentiality restrictions affecting the Company or any of its Restricted Subsidiaries, a Responsible Officer of the Company is made available to the Administrative Agent to discuss such confidential information to the extent permitted, subject to Section 11.07 of this Agreement), and to discuss the business, finances and accounts with its officers and independent public accountants at such reasonable times during normal business hours and as often as may be reasonably desired, provided that the Administrative Agent shall give the Company reasonable advance written notice prior to any contact with such accountants and give the Company the opportunity to participate in such discussions, provided further that the costs of one such visit per calendar year (or an unlimited amount if an Event of Default has occurred and is continuing) for the Administrative Agent and their representatives as a group shall be the responsibility of the Company and, absent an Event of Default, the Administrative Agent and their representatives as a group shall visit no more often than twice in any twelve month period. Notwithstanding the foregoing, Mine visits are only permitted if the representatives and independent contractors of the Administrative Agent agree to be bound by and adhere to all Requirements of Law and any policy of the Company.
(b)      From time and from time to time during regular business hours, upon reasonable advance written notice, permit any Approved Appraisers or Approved Field Examiners to visit the properties of the Loan Parties to, at the Borrowers’ expense, conduct field examinations and inventory appraisals in connection with the Borrowers’ computation of the Borrowing Base; provided that, so long as an Increased Reporting Period is not in effect, not more than two field exams (one of which shall be an on-site field exam and the other shall be a desktop field exam) and two inventory appraisals may be conducted at the Borrowers’ expense per twelve-month period; provided further, during any Increased Reporting Period, one additional field exam and one additional inventory appraisal may be conducted at the Borrowers’ expense in any twelve-month period. Notwithstanding the foregoing, following the occurrence and during the continuation of an Event of Default, such field examinations and inventory appraisals set forth above may be conducted at the Borrowers’ expense as many times as the Administrative Agent shall consider reasonably necessary. In addition, the Borrowers shall have the right (but not the obligation), at the Borrowers’ expense, at any time and from time to time (but not more than once per twelve-month period) to provide the Administrative Agent with additional field examinations and additional inventory appraisals of any or all of the Collateral, prepared in a form and on a basis reasonably satisfactory to the Administrative Agent, in which case such field examination or such inventory appraisal shall be used in connection with the calculation of the Borrowing Base hereunder. Each inventory appraisal after the Closing Date shall be performed by any Approved Appraiser. Each field examination after the Closing Date shall be performed by any Approved Field Examiner. Notwithstanding the foregoing, Mine visits are only permitted if the representatives and independent contractors of the Administrative Agent agree to be bound by and adhere to all Requirements of Law and any policy of the Company.
Section 6.11.      Use of Proceeds.
(a)      Use the proceeds of the Credit Extensions solely (i) to pay Transaction Costs and (ii) to fund working capital needs and other general corporate purposes of the Company and its Subsidiaries, including the financing of Capital Expenditures, Permitted Acquisitions, other permitted Investments, Restricted Payments and any other purpose not prohibited by the Loan Documents.
(b)      None of the Borrowers shall, directly or indirectly, use the proceeds of any Credit Extension or lend, contribute, or otherwise make available such proceeds to any Subsidiary, joint venture

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partner, or other Person (i) to fund, finance, or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding, is the target of Sanctions or (ii)    in any other manner that would result in the violation of Sanctions applicable to any party to this Agreement.
Section 6.12.      Additional Guarantors . If the Company or any of its Restricted Subsidiaries acquires or creates another Subsidiary after the Closing Date which by virtue of the definition of Guarantor is required to be a Guarantor then (unless designated as an Unrestricted Subsidiary pursuant to Section 6.13) the Company shall cause, within 60 days (or such later date as the Administrative Agent agrees) of such acquisition or creation, any such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent an Assumption Agreement, or such other document as the Administrative Agent shall deem appropriate for such purpose.
Section 6.13.      Unrestricted Subsidiaries . Any Restricted Subsidiary may be designated as an Unrestricted Subsidiary and any Unrestricted Subsidiary may be designated as a Restricted Subsidiary upon delivery to the Administrative Agent of written notice from the Company; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) immediately after giving effect to such designation, the Payment Conditions shall have been satisfied, (c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of any of the Term Loan Credit Documents or any documents evidencing any Permitted Refinancing Indebtedness or any Subordinated Indebtedness or Junior Lien Indebtedness and (d) each Restricted Subsidiary to be designated as an Unrestricted Subsidiary and its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness other than Non-Recourse Debt. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment under Section 7.02 by the Company therein at the date of designation in an amount equal to the net book value of the Company’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Restricted Subsidiary existing at such time.
Section 6.14.      Preparation of Environmental Reports . If an Event of Default caused by reason of a breach under Sections 6.08 or 5.09 with respect to compliance with Environmental Laws shall have occurred and be continuing, at the reasonable request of the Required Lenders through the Administrative Agent, provide to the Lenders within 60 days after such request (or such longer period as may be agreed) information regarding the nature of the breach and the remedial action being taken or proposed to be taken with respect to the Properties which are the subject of the breach.
Section 6.15.      Certain Long Term Liabilities and Environmental Reserves . To the extent applicable and required by GAAP, maintain adequate reserves for (a) future costs associated with any lung disease claim alleging pneumoconiosis or silicosis or arising out of exposure or alleged exposure to coal dust or the coal mining environment, (b) future costs associated with retiree and health care benefits, (c)    future costs associated with reclamation of disturbed acreage, removal of facilities and other closing costs in connection with closing its mining operations and (d) future costs associated with other potential environmental liabilities.
Section 6.16.      Covenant to Give Security.
(a)      Personal Property including IP of New Guarantors. Concurrently with any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12 (or a later date to which the Administrative Agent agrees), cause any such Restricted Subsidiary to (i) duly execute and deliver to the Collateral Agent counterparts to the Security Agreement or such other document as the

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Administrative Agent or the Collateral Agent shall reasonably deem appropriate for such purpose, (ii) to the extent that any Equity Interests in, or owned by, such Restricted Subsidiary is required to be pledged pursuant to the Security Agreement, deliver stock certificates, if any, representing such Equity Interests accompanied by undated stock powers or instruments of transfer executed in blank, (iii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent or the Collateral Agent and (iv) comply with all other requirements of the Security Agreement with respect to the Collateral of such Guarantor.
(b)      Real Property Acquired by Borrower and Guarantors.
(i)      Material Real Property Mortgages and Flood Insurance. If the Company or any of its Restricted Subsidiaries acquires any additional Material Real Property after the Closing Date (including by virtue of any previously excluded real property becoming Material Real Property under the definition thereof after the Closing Date) the Company shall cause, within the latest of (x) 90 days of such acquisition and (y) a later date to which the Administrative Agent agrees, cause the Company or such Restricted Subsidiary to deliver (A) executed counterparts of one or more Mortgages on such Material Real Property in a form appropriate for recording in the applicable recording office, (B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Building located on such Material Real Property and constituting Collateral and, if any such Building is located in special flood hazard area, (1) a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto and (2) evidence of applicable flood insurance as required by Section 6.07(b)(i) if such Material Real Property constitutes Collateral, (C) legal opinions from counsel in such jurisdiction as the Material Real Property is located, each in form and substance reasonably satisfactory to Administrative Agent or the Collateral Agent, (D) to the extent required by the Administrative Agent, evidence of the filing of as-extracted UCC-1 financing statements in the appropriate jurisdiction and (E) payment by the Company of all mortgage recording taxes and related charges required for the recording of such Mortgages unless, in the judgment of the Administrative Agent, delivery of such materials is unnecessary to ensure the Secured Parties benefit from a perfected First Priority security interest (subject to Permitted Real Estate Encumbrances) in such Material Real Property in favor of the Collateral Agent and such flood insurance (it is understood that in lieu of any new Mortgage, mortgage supplements or any other security documents may be delivered if reasonably acceptable to the Administrative Agent).
(ii)      Consents Related to Leaseholds Concerning Material Real Property. With respect to any leasehold interest of the Company or any of its Restricted Subsidiary that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Company or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for no more than (x) the 90 days following such acquisition and (y) 150 days following the Closing Date, provided that nothing herein shall be construed as requiring the Company or any Restricted Subsidiary to pay any sums to the applicable lessor other than immaterial or incidental fees and expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Company set forth in this Section 6.16(b)(ii), any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Company and its Restricted Subsidiaries shall no longer be

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required to use commercially reasonable efforts to obtain any such consent after the above-mentioned time periods).
(c)      Personal Property (including IP) Acquired by Borrower or Guarantors.    Within 30 days of the date that the financial statements referred to in Section 6.01(a) (b) and (c) are required to be delivered (or a later date to which the Administrative Agent agrees), shall, in the case of the Company, or cause any such Restricted Subsidiary otherwise, (i) to the extent that any Equity Interests in, or owned by, a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver stock certificates, if any, representing such Equity Interests accompanied by undated stock powers or instruments of transfer executed in blank to the Collateral Agent and execute and deliver to the Collateral Agent supplements to the Security Agreement or such other document as the Administrative Agent shall reasonably deem appropriate to pledge any such Equity Interests, (ii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent and (iii) to the extent that a Lien on any asset of a Loan Party is required to be perfected pursuant to the Security Agreement but has not been perfected, take such additional actions as may be required pursuant to the Security Agreement in order to perfect the Lien of the Collateral Agent on such asset.
(d)      Further Assurances. Subject to any applicable limitation in any Collateral Documents, upon request of the Administrative Agent, at the expense of the Company, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may reasonably deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, the Collateral Documents, including the filing of financing statements necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to perfect any security interests created under the Collateral Documents.
(e)      Collateral Principles. Notwithstanding anything to the contrary in any Loan Document, (i) the Administrative Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or taking other actions with respect to, particular assets where it reasonably determines in consultation with the Company, that the creation or perfection of security interests and Mortgages on, or taking other actions, cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents and (ii) any Liens required to be granted from time to time pursuant to Collateral Documents and this Agreement on assets of the Loan Parties to secure to the Obligations shall exclude the Excluded Assets.
(f)      Junior Lien Indebtedness Guarantees and Collateral. Without limitation of (and subject to) any provision in any Intercreditor Agreement, if the Junior Collateral Trustee or any holder of Junior Lien Indebtedness receives any additional guaranty or any additional collateral in connection with the Junior Lien Indebtedness after the Closing Date, without limitation of any Event of Default that may arise as a result thereof, the Loan Parties shall, concurrently therewith, cause the same to be granted to the Administrative Agent or the Collateral Agent, as applicable, for its own benefit and the benefit of the Secured Parties.
Section 6.17.      Information Regarding Collateral . Concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b), deliver to the Administrative Agent and the Collateral Agent a Collateral Questionnaire Supplement to the extent necessary to correctly reflect the information set forth therein as of such date.

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Section 6.18.      Senior Debt . Cause the Facility to at all times be considered “Senior Debt”, as defined in the Intercreditor Agreement, for purposes of such Intercreditor Agreement.
Section 6.19.      Administration of Accounts . (a) If an Account of any Loan Party includes a charge for any taxes, the Administrative Agent is authorized, in its reasonable discretion, to pay the amount thereof to the proper taxing authority for the account of such Loan Party if such Loan Party does not do so after written notice from the Administrative Agent and to charge such Loan Party therefor; provided, however, that neither the Administrative Agent nor the Lenders shall be liable for any Taxes that may be due from the Loan Parties or with respect to any Collateral.
(b)      During the continuance of an Event of Default, the Administrative Agent shall have the right at any time, in the name of the Administrative Agent, any designee of the Administrative Agent or any Loan Party, to verify the validity, amount or any other matter relating to any Accounts of any Loan Party by mail, telephone or otherwise. The Loan Parties shall cooperate fully with the Administrative Agent in an effort to facilitate and promptly conclude any such verification process.
Section 6.20.      Cash Management System.
(a)      (i) Within 60 days after the Closing Date (or such later date as the Administrative Agent may specify in its reasonable discretion), and at all times thereafter, each of the Loan Parties shall enter into and maintain a Blocked Account Agreement, satisfactory in form and substance to the Administrative Agent in its reasonable discretion, with respect to each of its Deposit Accounts, Securities Account or Commodities Accounts (other than any Excluded Account) (each such Deposit Account, Securities Account or Commodities Account, a “ Control Account ”) and (ii) within 30 days of the establishment of any new Control Account (or such later date as the Administrative Agent may specify in its reasonable discretion), cause such Control Account (other than Excluded Accounts) to be subject to a Blocked Account Agreement. No Loan Party shall direct any Account Debtor, or any customer, to make payments on Accounts to any Deposit Account other than the Control Accounts and the ABL Cash Collateral Account.
(b)      Subject to the time periods set forth in Section 6.20(a), no Loan Party shall establish or maintain any Securities Account, Commodities Account or Deposit Account that is not a Control Account, in each case, other than any Excluded Accounts or accounts necessary for such Loan Party to comply with Requirements of Law or any court order or any other judgment.
(c)      Each Loan Party hereby acknowledges and agrees that (i) during any Liquidity Period, it shall have no right of withdrawal from the Control Accounts and (ii) the funds on deposit in the Control Accounts shall at all times continue to be collateral security for all of the Obligations. In the event that, notwithstanding the provisions of this Section 6.200, a Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into the appropriate Control Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(d)      Without limiting the foregoing, funds on deposit in any Deposit Account or Securities Account under the sole dominion and control of the Administrative Agent may be invested (but the Administrative Agent shall be under no obligation to make any such investment) in Cash Equivalents at the direction of the Administrative Agent and, except during the continuance of a Liquidity Period, the Administrative Agent agrees with the Borrowers to issue entitlement orders for such investments in Cash Equivalents as reasonably requested by the Company; provided, however,

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that the Administrative Agent shall not have any responsibility for, or bear any risk of loss of, any such investment or income thereon.
(e)      Subject to clause (a) above, any amounts received in the ABL Cash Collateral Account and each other Control Account (other than the L/C Cash Collateral Account) shall be applied, first to payment of all Loans then due, second to the extent otherwise required by the Agreement, to Cash Collateralize all outstanding Letters of Credit, and then as directed by the Company; provided that, if an Event of Default has occurred and is continuing, all amounts in Control Accounts shall be applied pursuant to Section 8.03.
(f)      Notwithstanding the foregoing, the Borrowers shall be permitted to maintain the Designated Term Loan Account (as defined in the Intercreditor Agreement). The Term Loan Agent shall be the “controlling party” on the Blocked Account Agreement with respect to the Designated Term Loan Account so long as any Term Loan Debt remains outstanding (it being understood and agreed that the Administrative Agent shall also have a Lien on the Designated Term Loan Account and shall become the “controlling party” with respect thereto to the extent no Term Loan Debt remains outstanding).
Section 6.21.      Post-Closing Covenants . Cause to be delivered or performed the documents and other agreements and actions set forth on Schedule 6.21 within the time frame specified on such Schedule 6.21.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than in respect of contingent obligations, indemnities and costs and expenses related thereto not then payable or in existence as of the later of the Termination Date or the Letter of Credit Expiration Date), or any Letter of Credit shall remain outstanding, the Company and each other Borrower shall not, nor shall they permit any of their respective Subsidiaries to, directly or indirectly:
Section 7.01.      Liens . Create, incur, assume or suffer to exist any Lien upon, any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following (“ Permitted Liens ”):
(a)      Liens pursuant to any Loan Document;
(b)      Liens existing on the date hereof and (other than any individual Lien that secures obligations of less than $2,000,000) set forth on Schedule 7.01 and any renewals, extensions, modifications, restatements or replacements thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except with respect to any Permitted Refinancing Increase and (iii) any renewal, extension, modification, restatement or replacement of the obligations secured or benefited thereby is permitted by Section 7.03;
(c)      Liens for taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

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(d)      landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings;
(e)      pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and employee health and disability benefit legislations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f)      (i) Liens (including deposits) to secure the performance of bids, trade contracts and leases (other than Indebtedness), reclamation bonds, insurance bonds, statutory obligations, surety and appeal bonds, performance bonds, bank guarantees and letters of credit and other obligations of a like nature incurred in the ordinary course of business, (ii) Liens on assets to secure obligations under surety bonds obtained as required in connection with the entering into of federal coal leases or (iii) Liens created under or by any turnover trust; provided that no UCC financing statement has been filed by surety and no other action has been taken to perfect any such Liens of any surety;
(g)      easements, rights-of-way, zoning restrictions, other restrictions, covenants and other non-monetary encumbrances which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h)      Liens securing attachments or judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or surety bonds related to such attachments or judgments;
(i)      Liens securing Indebtedness of the Company and its Restricted Subsidiaries permitted by Section 7.03(l); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, any other property which may be incorporated with or into that financed property or any after-acquired title in or on such property and proceeds of the existing collateral in accordance with the instrument creating such Lien, including replacement parts, accessories or enhancements that are affixed to any leased goods and other property financed by the same Person (i.e., cross-collateralization of such property) and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original purchase price of such property at the time it was acquired (it being understood that Liens of the type described in this subsection (i) incurred by a Restricted Subsidiary before such time as it became a Restricted Subsidiary are permitted under this subsection (i));
(j)      Liens on property or assets acquired in a transaction permitted by Section 7.02 or of a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such Liens existed at the time such property or assets were acquired or such entity became a Subsidiary and were not created in anticipation thereof, (ii) such Liens do not extend to any other property or assets of such Person (other than the proceeds of the property or assets initially subject to such Lien) or of the Company or any Restricted Subsidiary and (iii) the amount of Indebtedness secured thereby is not increased;
(k)      Liens on the property of the Company or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord;

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(l)      Liens (including those arising from precautionary UCC financing statement filings and those which are security interests for purposes of the Personal Property Securities Act of 2009 (Cth)) with respect to bailments, operating leases or consignment or retention of title arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(m)      Liens securing Indebtedness permitted under Section 7.03(c), to the extent that the Indebtedness being refinanced was originally secured in accordance with this Section 7.01, provided that such Lien does not apply to any additional property or assets of the Company or any Restricted Subsidiary (other than property or assets within the scope of the original granting clause or the proceeds of the property or assets subject to such Lien);
(n)      Liens securing Indebtedness or other obligations of a non-Guarantor Restricted Subsidiary to any Borrower or a Guarantor;
(o)      leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose;
(p)      (i) Liens in favor of a banking institution arising by operation of law or any contract encumbering deposits (including the right of set-off) held by such banking institutions incurred in the ordinary course of business and which are within the general parameters customary in the banking industry or (ii) contractual rights of setoff to the extent constituting Liens;
(q)      Liens on Equity Interests of any Unrestricted Subsidiary, solely to the extent such Equity Interests do not constitute Collateral;
(r)      Liens in favor of an escrow agent arising under an escrow arrangement incurred in connection with the issuance of notes with respect to the proceeds of such notes and anticipated interest expenses with respect to such notes;
(s)      Permitted Real Estate Encumbrances and Liens on Excluded Assets;
(t)      other Liens securing Indebtedness or other obligations of the Loan Parties in an aggregate amount at any time outstanding not to exceed $40,000,000 so long as the Payment Conditions shall have been satisfied on the date of incurrence thereof;
(u)      subject to the Term Loan Intercreditor Agreement, Liens on Collateral securing the Term Loan Facility;
(v)      (x) Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties or (y) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture, in each case, consistent with normal practices in the mining industry;
(w)      Liens under ERISA or the Code with respect to a Plan that does not constitute an Event of Default under Section 8.01(i);
(x)      Liens on insurance policies and the proceeds thereof securing the financing of insurance premiums with respect thereto;

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(y)      rights of first refusal and rights of first offer in respect of transfers of Equity Interests in Joint Ventures to the extent such rights constitute Liens;
(z)      Liens granted under the Loan and Aircraft Security Agreement (S/N 560- 5802), dated as of July 26, 2016, among Bank of Utah, not in its individual capacity, but solely as owner trustee, as the borrower, Contura Energy Services, LLC, as the operator and Citizens Asset Finance, Inc., as the lender;
(aa)      Residual Mechanic's Liens and Residual Property Tax Liens; and
(bb)      Liens in connection with the escrow of funds in connection with the Refinancing in order to defease the Existing Senior Notes, and Liens securing Indebtedness under Section 7.03(w).
Section 7.02.      Investments . Make or hold any Investments, except:
(a)      Investments held by the Company or such Restricted Subsidiary in the form of cash or Cash Equivalents;
(b)      advances to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $2,500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(c)      Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(d)      Investments (including debt obligations and Equity Interests) received in satisfaction of judgments or in connection with the bankruptcy or reorganization of suppliers and customers of the Company and its Restricted Subsidiaries and in settlement of delinquent obligations of, and other disputes with, such customers and suppliers arising in the ordinary course of business;
(e)      (i) Investments in the nature of Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties, (ii) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture or (iii)     payments or other arrangements whereby the Company or a Restricted Subsidiary provides a loan, advance payment or guarantee in return for future coal deliveries, in each case consistent with normal practices in the mining industry;
(f)      Investments in existence on the Closing Date and (other than individual Investments the amount of which is less than $2,000,000) listed on Schedule 7.02 and extensions, renewals, modifications, restatements or replacements thereof; provided that no such extension, renewal, modification, restatement or replacement shall increase the amount of such Investment except, in the case of a loan, by an amount equal to any Permitted Refinancing Increase;
(g)      (i) promissory notes and other similar non-cash consideration received by the Company and its Subsidiaries in connection with Dispositions not otherwise prohibited under this Agreement and (ii) Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company and its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the

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bankruptcy or insolvency of any trade creditor or customer, (B) litigation, arbitration or other disputes or (C) the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(h)      Investments in any assets constituting a business unit received by the Company or its Subsidiaries by virtue of a Permitted Asset Swap;
(i)      Hedging Agreements or Cash Management Obligations;
(j)      Investments by the Company or any Restricted Subsidiary in Restricted Subsidiaries, and Investments by any Restricted Subsidiary in the Company; provided that (x) Investments in Restricted Subsidiaries that are not Loan Parties, when aggregated with Indebtedness of a non-Loan Party owing to a Loan Party pursuant to Section 7.03(f) (other than Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Loan Party to a Loan Party pursuant to Section 7.03(f), shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets and (y) the Payment Conditions are satisfied at the time the relevant Investment is consummated;
(k)      Investments by the Company or any Restricted Subsidiary in Unrestricted Subsidiaries, non-wholly owned Subsidiaries and Joint Ventures in an aggregate amount not to exceed the greater of $100,000,000 and 20% of Consolidated Net Tangible Assets so long as the Payment Conditions are satisfied at the time the relevant Investment is consummated;
(l)      (1) additional Investments by the Company or any Restricted Subsidiary (i) in an aggregate amount not to exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets plus (ii) an amount equal to the Available Amount (as defined in the Term Loan Credit Agreement as in effect on the Closing Date), so long as the Payment Conditions are satisfied at the time the relevant Investment is consummated;
(m)      Permitted Acquisitions;
(n)      Investments acquired as a capital contribution to the Company, or made in exchange for, or out of the net cash proceeds of, a substantially concurrent offering of Qualified Equity Interests of the Company;
(o)      (i) receivables owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business, (ii) endorsements for collection or deposit in the ordinary course of business and (iii) securities, instruments or other obligations received in compromise or settlement of debts created in the ordinary course of business, or by reason of a composition or readjustment of debts or reorganization of another Person, or in satisfaction of claims or judgments;
(p)      Investments made in the ordinary course of business pursuant to surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds and related letters of credit or similar obligations, in each case, to the extent such surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds, related letters of credit and similar obligations are permitted under this Agreement;
(q)      Investments in the ordinary course of business consisting of indemnification obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees and similar obligations under any Mining Law or Environmental Law or with respect to workers’ compensation benefits, in each case entered into in the ordinary course of

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business, and pledges or deposits made in the ordinary course of business in support of obligations under existing coal sales contracts (and extensions or renewals thereof on similar terms);
(r)      Investments made by the Company in the form of loans pursuant to the Contingent Credit Support Agreement;
(s)      to the extent constituting an Investment, any Guarantee of or the repurchase, repayment, defeasance or retirement of any Indebtedness of the Company or any Subsidiary to the extent such Guarantee, repurchase, prepayment or retirement is expressly permitted hereunder;
(t)      Investments by any Loan Party in the Owner Trust;
(u)      Investments made pursuant to the Reclamation Funding Agreement and all required payments made thereunder; and
(v)      Investments in any Joint Venture in which the Company or a Restricted Subsidiary holds or will hold Equity Interests comprised of any combination of the following: (i) any assets or rights owned or held by one or more of the PRB Subsidiaries or (ii) issuances of Equity Interests by any PRB Subsidiary in order to form or develop such Joint Venture; provided that any such transaction constituting a Disposition shall comply with Section 7.05(i).
Section 7.03.      Indebtedness . Create, incur, assume or suffer to exist any Indebtedness, except:
(a)      Indebtedness under the Loan Documents (including any such Indebtedness in respect of any Facility Increase in accordance with Section 2.15);
(b)      Indebtedness outstanding on the date hereof and (other than any individual obligation with respect to such Indebtedness that is less than $2,000,000) listed on Schedule 7.03;
(c)      any Permitted Refinancing Indebtedness of Indebtedness permitted under Section 7.03(b) or of Indebtedness subsequently incurred under this Section 7.03(c);
(d)      Guarantees by the Company or any Restricted Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Company or any Restricted Subsidiary;
(e)      Indebtedness in respect of (i) Cash Management Obligations incurred in the ordinary course of business and (ii) Hedging Agreements incurred in the ordinary course of business and not for speculative purposes;
(f)      (i) Indebtedness of the Company and any Restricted Subsidiary owing to any Restricted Subsidiary and of any Restricted Subsidiary owing to the Company and (ii) Disqualified Equity Interests of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that, (a) any such Indebtedness extended by a non-Loan Party to a Loan Party must be subordinated to the Obligations on customary terms and (b) Indebtedness of a non-Loan Party owing to a Loan Party pursuant to this Section 7.03(f) and any Disqualified Equity Interests of a non-Loan Party issued to a Loan Party, together with Investments in non-Loan Parties made pursuant to Section 7.02(j), shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets; provided further, that notwithstanding the foregoing, any Indebtedness extended by any Loan Party to any non-Loan Party shall be permitted (and shall not be subject to the cap in the immediately preceding proviso) so long as such Indebtedness is evidenced by a promissory note, in

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form and substance reasonably satisfactory to the Administrative Agent, and such promissory note shall be pledged to the Collateral Agent as Collateral;
(g)      Guarantees by the Company or any Restricted Subsidiary of borrowings by current or former officers, managers, directors, employees or consultants in connection with the purchase of Equity Interests of the Company by any such person in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding;
(h)      subject to the Term Loan Intercreditor Agreement, Indebtedness incurred under the Term Loan Credit Agreement in an aggregate outstanding principal amount that does not exceed the Term Loan Cap (as defined in the Intercreditor Agreement) and (ii) subject to the Intercreditor Agreement, any Refinancing (as defined in the Term Loan Intercreditor Agreement) of the Term Loan Debt (as defined in the Term Loan Intercreditor Agreement) after the Closing Date so long as such Indebtedness, if secured, is secured only by Liens permitted under Section 7.01(u);
(i)      Indebtedness incurred or assumed in connection with Permitted Acquisitions and other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or all of the Capital Stock of another Person; provided that, after giving effect to the incurrence thereof on a Pro Forma Basis, (i) if such Indebtedness is (or is intended to be) secured by the Collateral on a pari passu basis, the First Lien Leverage Ratio (as calculated in the Term Loan Credit Agreement) is equal to or less than 2.00 to 1.00 and (ii) if such Indebtedness is secured by the Collateral on a junior-lien basis or unsecured, the Total Leverage Ratio (as calculated in the Term Loan Credit Agreement) is equal to or less than 3.00 to 1.00; provided further that Indebtedness incurred by any non-Loan Party pursuant to this Section 7.03(i) shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets; provided, further, that to the extent such Indebtedness is secured by a Lien on any ABL Priority Collateral, such Lien shall be junior to the Lien of the Administrative Agent and the Loan Parties shall segregate (and not commingle) any such ABL Priority Collateral and proceeds thereof, in each case, pursuant to intercreditor arrangements reasonably satisfactory to the Administrative Agent in consultation with the Company.
(j)      Indebtedness incurred or assumed in connection with permitted Investments made pursuant to Section 7.02(m);
(k)      Indebtedness of non-Loan Party Restricted Subsidiaries in an aggregate amount not to exceed $40,000,000 so long as the Payment Conditions shall have been satisfied at the time of the incurrence of such Indebtedness;
(l)      Indebtedness consisting of Capital Leases not to exceed $50,000,000 in the aggregate at any time outstanding;
(m)      additional Indebtedness of the Loan Parties in an amount not to exceed the greater of $75,000,000 and 15% of Consolidated Net Tangible Assets in the aggregate at any time outstanding so long as the Payment Conditions shall have been satisfied at the time of the incurrence of such Indebtedness;
(n)      Indebtedness of the Company or any Restricted Subsidiary in connection with one or more standby or trade-related letters of credit, performance bonds, bid bonds, appeal bonds, bankers acceptances, insurance obligations, reclamation obligations, bank guarantees, surety bonds, completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Company or a Restricted Subsidiary, in each case, in the ordinary course of business or

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pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances;
(o)      Indebtedness arising from agreements of the Company or any Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or any Subsidiary;
(p)      Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(q)      Indebtedness of the Company or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply or other arrangements;
(r)      any transaction permitted under Section 7.12;
(s)      Indebtedness under the Loan and Aircraft Security Agreement (S/N 560- 5802), dated as of July 26, 2016, among Bank of Utah, not in its individual capacity, but solely as owner trustee, as the borrower, Contura Energy Services, LLC, as the operator and Citizens Asset Finance, Inc., as the lender;
(t)      Indebtedness (the “ UMWA Note ”) incurred pursuant to (A) the contingent seven-year 5.0% note in an aggregate principal amount of $8,750,000 to be issued to the UMWA on August 1, 2017, if, prior to such date, federal legislation providing retirement health benefits to the UMWA retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, and (B) the contingent seven-year 5.0% note in an aggregate principal amount of $8,750,000 to be issued to the UMWA on December 1, 2017, if, prior to such date, federal legislation providing retirement health benefits to the UMWA retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, in each case pursuant to that certain agreement to fund the VEBA between the Company and UMWA;
(u)      [Reserved];
(v)      Indebtedness under the Reclamation Funding Agreement and all required payments made thereunder; and
(w)      Indebtedness deemed to be outstanding under the Existing Senior Notes, which Indebtedness shall only be deemed permitted if the deposit of cash with the Existing Notes Trustee in accordance with the Existing Senior Notes Indenture, in connection with an irrevocable notice of repurchase or redemption in full issued on or before the Closing Date for repurchase or redemption to occur within 30 days as set forth in the Existing Senior Notes Indenture, has occurred on or prior the Closing Date and the Existing Senior Notes have, in fact, been repaid in full within 30 days after the Closing Date.
Section 7.04.      Fundamental Changes . Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Company and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, if no Default exists or would immediately result therefrom:

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(a)      any Subsidiary may merge or consolidate with (i) any Borrower, provided that a Borrower shall be the continuing or surviving Person or (ii) any one or more other Subsidiaries, provided that (A) when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, (B) when any Restricted Subsidiary is merging with any other Subsidiary, the continuing or surviving Person (unless such surviving Person could otherwise be designated an Unrestricted Subsidiary hereunder) shall be a Restricted Subsidiary, (C) when any Foreign Subsidiary is merging with any Domestic Subsidiary, the continuing or surviving Person shall be the Domestic Subsidiary, (D) when any Guarantor or Borrower is merging with any other Subsidiary, the continuing or surviving Person shall be a Guarantor or a Borrower, respectively, and (E) when any Guarantor or Borrower is merging with the Company, the continuing or surviving Person shall be the Company;
(b)      any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Subsidiary; provided that (i) if the transferor in such a transaction is a Restricted Subsidiary, then the transferee must either be a Borrower or another Restricted Subsidiary (unless such Disposition would otherwise be permitted as an Investment in an Unrestricted Subsidiary), (ii) if the transferor is a Domestic Subsidiary, then the transferee must either be a Borrower or another Domestic Subsidiary and (iii) if the transferor is a Guarantor, then the transferee must either be a Borrower or another Guarantor;
(c)      the Company and any Restricted Subsidiary may merge or consolidate with any other Person in a transaction (including any Permitted Acquisition) in which the Company or the Restricted Subsidiary, as applicable, is the surviving or continuing Person; provided that, (i) a Borrower may not merge or consolidate with a Restricted Subsidiary unless the applicable Borrower is the surviving or continuing Person, (ii) the Company may not merge or consolidate with any other Person unless the continuing or surviving Person shall be the Company and (iii) such merger or consolidation is permitted under Section 7.02(m) hereof; and
(d)      any Restricted Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and not materially disadvantageous to the Lenders and the assets, if any, of any Restricted Subsidiary so liquidated or dissolved are transferred (x) to another Restricted Subsidiary or any Borrower and (y) to a Guarantor or any Borrower if such liquidated or dissolved Restricted Subsidiary is a Guarantor.
Section 7.05.      Dispositions . Make any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04 and 7.06), except:
(a)      Dispositions of sur plus , obsolete, used or worn out property or other property that, in the reasonable judgment of the Company, is no longer useful in its business (but excluding any real property);
(b)      Dispositions of inventory, equipment or accounts receivable in the ordinary course of business;
(c)      Dispositions of cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or otherwise in the ordinary course of business;
(d)      (A) Dispositions of defaulted receivables in the ordinary course of business and (B) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceeding;

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(e)      licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the Company or any Restricted Subsidiary in the ordinary course of business or lapse or abandonment of intellectual property rights in the ordinary course of business that, in the reasonable judgment of the Company, is no longer useful in its business;
(f)      Permitted Asset Swaps;
(g)      (A) the grant in the ordinary course of business of any non-exclusive easements, permits, licenses, rights of way, surface leases or other surface rights or interests and (B) any lease, sublease or license of assets (with a Loan Party as the lessor, sublessor or licensor) in the ordinary course of business;
(h)      (i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies or (ii) transfers of properties to the extent that such property has been subject to a casualty event for which the Loan Parties or a creditor with a Lien on such property that is permitted hereunder have received (or have not been denied) insurance proceeds or condemnation awards;
(i)      other Dispositions (other than Dispositions of ABL Priority Collateral, except to the extent such Disposition accompanies the Disposition of a mining operation or all or substantially all of the assets of Subsidiary), if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration received for such Disposition shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Company in good faith and (iii) at least 75% of the consideration for such Dispositions undertaken pursuant to this Section 7.05(i) shall be paid in cash or Cash Equivalents, provided that, solely for purposes of this provision, each of the following shall be deemed to be cash:
(i)      any securities, notes, other obligations or assets received by the Company or any Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(ii)      any reclamation, employment related or any other liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and as a result of which the Company or such Restricted Subsidiary is released from further liability; and
(iii)      any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition; provided that (1) the aggregate fair market value of such Designated Non-Cash Consideration, as reasonably determined by the Company in good faith, taken together with the fair market value at the time of receipt of all other Designated Non-Cash Consideration received pursuant to this clause (C) minus (2) the amount of “ Net Proceeds ” (as defined in the Term Loan Credit Agreement) previously realized in cash from prior Designated Non-Cash Consideration shall not exceed $10,000,000;
(j)      any Investment permitted pursuant to Sections 7.02(j), 7.02(k) or 7.02(l), which constitutes a Disposition;
(k)      Dispositions of Excluded Assets and other Dispositions that do not constitute Asset Sales;

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(l)      to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any like kind exchange of property for use in a Similar Business;
(m)      (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of business or (ii) any settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any present or former directors, officers, or employees of the Company or` any Restricted Subsidiary or any of their successors or assigns;
(n)      the unwinding or termination of any Hedging Obligations; and
(o)      the sale of assets by the Company and its Restricted Subsidiaries consisting of real property solely to the extent that such real property is not necessary for the normal conduct of operations of the Company and its Restricted Subsidiaries.
To the extent the Required Lenders waive the provisions of this Section 7.05 with respect to the Disposition of any property or any property is Disposed of as permitted by this Section 7.05, such property (unless sold, transferred or otherwise disposed of to a Loan Party) shall be Disposed of free and clear of the Liens created by the Collateral Documents, and the Administrative Agent and/or the Collateral Agent shall take all actions reasonably requested by the Company to effect the foregoing.
Section 7.06.      Restricted Payments . Declare or make, directly or indirectly, any Restricted Payment; except that:
(a)      each Subsidiary may make Restricted Payments to the Company, its Subsidiaries and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made or as otherwise required pursuant to its Organizational Documents;
(b)      the Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other Equity Interests of such Person or another Subsidiary;
(c)      the Company may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of new shares of common stock or other Qualified Equity Interests of the Company;
(d)      the Company or any of its Subsidiaries may purchase (i) Equity Interests issued by any Loan Party or options with respect thereto held by directors, officers or employees of the Company or any Restricted Subsidiary (or their estates or authorized representatives) in connection with (A) the death, disability or termination of employment of any such director, officer or employee or (B) any benefit, incentive or equity compensation plans to provide funds for the payment of any Tax or other amounts owing by such directors, officers or employees upon vesting or exercise or settlement of the Equity Interests or options provided under such plans; and (ii) Equity Interests issued by any Loan Party for future issuance under any benefit, incentive or equity compensation plan; provided that
(e)      no Event of Default has occurred and is continuing at the time of such purchase and (b) for both clauses (i) and (ii), the aggregate cash consideration paid therefor in any twelve-month period after the Closing Date shall not exceed $15,000,000 in the aggregate;

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(f)      so long as no Event of Default shall have occurred and be continuing or would result therefrom and the Payment Conditions have been satisfied at the time such Restricted Payment is made, the Company and its Subsidiaries may make Restricted Payments in an amount not to exceed (i) $20,000,000 plus (ii) the Available Amount (as defined in the Term Loan Credit Agreement);
(g)      the Borrowers may make regularly scheduled payments of principal or interest on any unsecured Indebtedness for borrowed money, the Term Loan Facility and any Junior Lien Indebtedness;
(h)      the prepayment, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of unsecured Indebtedness for borrowed money, the Term Loan Facility, any Subordinated Indebtedness or any Junior Lien Indebtedness (A) with the net cash proceeds of, or in exchange for, Permitted Refinancing Indebtedness or (B) in exchange for, or out of the proceeds of, a substantially concurrent issue of new shares of common stock or other Qualified Equity Interests of the Company;
(i)      the prepayment, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of, to the extent constituting Indebtedness for borrowed money, (i) unsecured Indebtedness incurred pursuant to Sections 7.03(t), (u) and (v), (ii) VEBA contributions for non-union retirees in an amount not to exceed $7,000,000 in the aggregate for all such Restricted Payments made pursuant to this Section 7.06(h)(ii) and (iii) other unsecured Indebtedness for borrowed money in an amount not to exceed $5,000,000 in the aggregate for all such Restricted Payments made pursuant to this Section 7.06(h)(iii);
(j)      so long as the Payment Conditions shall have been satisfied at the time of payment thereof, the Borrowers may make payments in respect of any unsecured Indebtedness, Subordinated Indebtedness, Junior Lien Indebtedness or Indebtedness in respect of the Term Loan Facility, in each case, in accordance with the terms thereof and only to the extent permitted by and subject to the subordination provisions contained therein;
(k)      cash payments in lieu of fractional shares upon exercise of options or warrants or conversion or exchange of convertible securities, repurchases of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such securities represent a portion of the exercise price of such options, warrants or other convertible securities and repurchases of Equity Interests in connection with the withholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the Taxes payable by such director or employee upon such grant or award;
(l)      the Company may make Restricted Payments owed upon the exercise of warrants issued by the Company;
(m)      payments made pursuant to the Reclamation Funding Agreement; and
(n)      notwithstanding the foregoing, if the Company declares a dividend or distribution pursuant to any of the foregoing clauses (a) through (l), the Company can pay any such dividend or distribution within 30 days after the date of declaration thereof.
Section 7.07.      Accounting Changes; Change in Nature of Business; Foreign Operations . Change the Company’s or Restricted Subsidiaries’ accounting and financial reporting practices as in effect as of the Closing Date in any material respect, except for any changes made in accordance with GAAP, without the prior written consent of the Administrative Agent or engage in any material line of business other than

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a Similar Business or hold a material portion of its Property that would otherwise be required pursuant to the Loan Documents to become subject to a fully perfected Lien in favor of the Collateral Agent in a foreign jurisdiction.
Section 7.08.      Transactions With Affiliates . Enter into, renew or extend any transaction or arrangement, including, without limitation, any purchase, sale, lease or exchange of property or assets or the rendering of any service, with any Affiliate of the Company or any Restricted Subsidiary (a “ Related Party Transaction ”) involving an aggregate consideration in excess of $10,000,000, unless the Related Party Transaction is (a) not otherwise prohibited by this Agreement, and (b) on fair and reasonable terms that are not materially less favorable (as reasonably determined by the Company) to the Company or any of the relevant Restricted Subsidiaries than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company; provided that (i) any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $20,000,000 must first be approved by a majority of the board of directors of the Company who are disinterested in the subject matter of the transaction pursuant to a resolution by the board of directors of the Company and (ii) with respect to any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $35,000,000, the Company must deliver to the Administrative Agent an opinion from an accounting, appraisal, or investment banking firm of national standing in the applicable jurisdiction (x) stating that its terms are not materially less favorable to the Company or any of the relevant Restricted Subsidiaries that would have been obtained in a comparable transaction with an unrelated Person or (ii) as to the fairness to the Company or any of the relevant Restricted Subsidiaries of such Related Party Transaction from a financial point of view the Company. Notwithstanding the foregoing, the restrictions contained in this Section 7.08 shall not apply to the following transactions or arrangements:
(a)      transactions between or among the Company and any of the Loan Parties or between and among any Loan Parties;
(b)      the payment of reasonable and customary fees and reimbursement of expenses payable to directors of the Company or any of its Restricted Subsidiaries or to any Plan, Plan administrator or Plan trustee;
(c)      loans and advances to directors, officers and employees to the extent permitted by Section 7.02;
(d)      the arrangements with respect to the procurement of services of directors, officers, independent contractors, consultants or employees in the ordinary course of business and the payment of customary compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and reasonable reimbursement arrangements in connection therewith;
(e)      payments to directors and officers of the Company and its Restricted Subsidiaries in respect of the indemnification of such Persons in such respective capacities from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, as the case may be, pursuant to the Organizational Documents or other corporate action of the Company or its Restricted Subsidiaries, respectively, or pursuant to applicable law;
(f)      intercompany Investments permitted pursuant to Section 7.02(j) and intercompany Indebtedness and issuances of Disqualified Equity Interests, in each case, permitted pursuant to Section 7.03(f);
(g)      Restricted Payments permitted by Section 7.06;

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(h)      transactions arising under any contract, agreement, instrument or other arrangement in effect on the Closing Date and set forth on Schedule 7.08, as amended, modified or replaced form time to time so long as the amended, modified or new arrangements, taken as a whole at the time such arrangements are entered into, are not materially less favorable to the Company and its Restricted Subsidiaries than those in effect on the Closing Date; and
(i)      any transactions with DTA; provided, that such transactions are on fair and reasonable terms that are not materially less favorable (as reasonably determined by the Company) to the Company or any of the relevant Restricted Subsidiaries than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company.
Section 7.09.      Use of Proceeds . Use the proceeds of any Borrowing, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
Section 7.10.      Burdensome Agreements . Enter into any Contractual Obligation that (x) limits the ability of the Company or any Guarantor to create, incur, assume or suffer to exist any Lien upon any of its property to secure the Obligations hereunder or (y) limits the ability of any Subsidiary to make Restricted Payments to the Company or any Guarantor or to otherwise transfer property to the Company or any Guarantor; provided, however, that the foregoing clause shall not apply to Contractual Obligations which:
(a)      solely in the case of clause (y) of this Section 7.10, exist on the date hereof and (to the extent not otherwise permitted by this Section 7.10) are listed on Schedule 7.10;
(b)      are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Company, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Company;
(c)      arise in connection with covenants in documents creating Liens permitted by Section 7.01 prohibiting further Liens on the properties encumbered thereby;
(d)      arise in connection with the Term Loan Credit Agreement and Subordinated Indebtedness permitted by Section 7.03;
(e)      arise in connection with any Disposition permitted by Section 7.05 solely with respect to the assets that are the subject of such Disposition;
(f)      are customary provisions in Joint Venture agreements and other similar agreements applicable solely to such Joint Venture or the Equity Interests therein;
(g)      are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;
(h)      are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary;
(i)      are customary limitations (including financial maintenance covenants) existing under or by reason of leases entered into in the ordinary course of business;

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(j)      are restrictions on cash or other deposits imposed under contracts entered into in the ordinary course of business;
(k)      are customary provisions restricting assignment of any agreements;
(l)      arise in connection with any Contractual Obligations that relate to the Excluded Assets;
(m)      arise in connection with applicable law, rule, regulation, order, approval, license, permit or similar restriction (whether or not existing on the Closing Date) or are mandated by any Governmental Authority;
(n)      customary provisions in Hedging Obligations; or
(o)      are set forth in any agreement evidencing an amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the Contractual Obligations referred to in clauses (a) through (n) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Company, not materially less favorable to the Loan Party with respect to such limitations than those applicable pursuant to such Contractual Obligations prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section 7.11.      Fiscal Year . Change its fiscal year-end from December 31.
Section 7.12.      Sale and Lease-Backs . Become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Company or such Restricted Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Company or any of its Restricted Subsidiaries), to the extent involving the sale of assets with a fair market value in excess of $70,000,000 in the aggregate and (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to any Person (other than the Company or any of its Restricted Subsidiaries) in connection with such lease.
Section 7.13.      Amendments or Waivers to Certain Agreements . Agree to any amendment, restatement, supplement or other modification to, or waiver of, (a) any of its Organizational Documents or
(a)      any document governing Subordinated Indebtedness or Junior Lien Indebtedness, after the Closing Date, in each case, to the extent the same would reasonably be expected to be materially adverse to any Secured Party (in the good faith determination of the Company), without obtaining the prior written consent of Required Lenders to such amendment, restatement, supplement or other modification or waiver.
Section 7.14.      No Further Negative Pledge . Enter into any agreement, instrument, deed or lease which prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its properties or revenues, whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation, except the following: (a) this Agreement, the Term Loan Credit Documents and the other Loan Documents; (b) covenants in documents creating Liens permitted by Section 7.01 prohibiting further Liens on the properties encumbered thereby; and (c) any prohibition or limitation that (i) exists pursuant to applicable Laws, (ii) consists of customary restrictions and conditions contained in any agreement relating to the sale of any property

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pending the consummation of such sale; provided that (1) such restrictions apply only to the property to be sold and such sale is permitted hereunder, and (2) such sale is permitted hereunder, (iii) restricts subletting or assignment of any lease governing a leasehold interest of Borrower or one of its Subsidiaries, or (iv) is a restriction on Liens otherwise permitted by the terms of Section 7.10 of this Agreement.
Section 7.15.      Anti-Corruption; Sanctions; Terrorism Laws.
(a)      Directly or indirectly, (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person subject to any Sanctions, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the PATRIOT Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, any Sanctions Laws or any Anti-Corruption Laws or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the PATRIOT Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, any Sanctions Laws or any Anti-Corruption Laws
(b)      Cause or permit any of the funds of such Loan Party that are used to repay the Loans to be derived from any unlawful activity with the result that the making of the Loans would be in violation of Laws.
Section 7.16.      [Reserved].
Section 7.17.      Minimum Fixed Charge Coverage Ratio . During any Liquidity Period, permit the Fixed Charge Coverage Ratio to be less than 1.00 to 1.00 as of the last day of any Test Period, commencing with the Test Period ended immediately preceding the commencement of such Liquidity Period (it being understood that the requirement to comply with such minimum Fixed Charge Coverage Ratio under this Section 7.177 shall again be triggered upon the commencement of any other Liquidity Period on any succeeding day).
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01.      Events of Default . Any of the following shall constitute an “Event of Default”:
(a)      Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within five Business Days after the same becomes due, any interest on any Loan, or any fee due hereunder, any other amount payable hereunder or under any other Loan Document; or
(b)      Specific Covenants. Any Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01(a), 6.01(b), 6.02(a), 6.03(a), 6.05, 6.11, 6.20 or Article VII;
(c)      Other Defaults. (i) Any Loan Party fails to deliver any Borrowing Base Certificate as required by Section 6.02(f) and such failure continues for three (3) Business Days, any Loan Party fails to comply with Section 6.10 hereof after the Administrative Agent or its representatives have

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complied in all material respects with any obligations set forth in Section 6.10 and such failure continues for five (5) Business Days after written notice from the Administrative Agent to the Company and (iii) any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier of (A) written notice from the Administrative Agent to the Company or (B) knowledge of a Responsible Officer of the Company; or
(d)      Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)      Cross-Default. Any Borrower or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder) in each case having an aggregate principal amount of more than the Threshold Amount, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee was created, (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable, or (C) fails to observe or perform any agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, as a result of which default or other event, the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) shall have caused, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable; or
(f)      Insolvency Proceedings, Etc. Subject to Section 8.03, any Loan Party or any of its Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any substantial part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any substantial part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g)      Inability to Pay Debts; Attachment. Subject to Section 8.03, (i) any Borrower or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any substantial part of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue or levy; or
(h)      Judgments. There is entered against any Borrower or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold

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Amount (to the extent not covered by independent third party insurance), and such judgments or orders shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i)      ERISA. The occurrence of any of the following events that would reasonably be expected to result in a Material Adverse Effect: (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in an actual obligation to pay money of any Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC, or (ii) any Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or
(j)      Invalidity of Material Loan Documents. Any material Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or payment in full, ceases to be in full force and effect; or any Loan Party contests the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any Collateral Document ceases to create a valid Lien on a material portion of the Collateral (other than as expressly permitted thereunder or solely as a result of the acts or omissions of the Administrative Agent or Collateral Agent (including failure to maintain possession of any stock certificates, or other instruments delivered to it under any Collateral Document)); or
(k)      Change of Control. There occurs any Change of Control; or
(l)      Subordinated and Junior Lien Indebtedness. Any Subordinated Indebtedness or any Junior Lien Indebtedness permitted hereunder or the guarantees thereof or, in the case of Junior Lien Indebtedness, the Liens securing such Junior Lien Indebtedness, shall cease, for any reason, to be validly subordinated to the Obligations of the Loan Parties hereunder, as provided in any Intercreditor Agreement or the indenture governing such Subordinated Indebtedness or Junior Lien Indebtedness, or any Loan Party, any Affiliate of any Loan Party, the trustee in respect of Subordinated Indebtedness or Junior Lien Indebtedness or the holders of at least 25% in aggregate principal amount of the Subordinated Indebtedness or Junior Lien Indebtedness shall so assert.
Section 8.02.      Remedies Upon Event of Default . (a) If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(i)      declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(ii)      declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;
(iii)      require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof);

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(iv)      exercise on behalf of itself, the Lenders and the applicable L/C Issuer all rights and remedies available to it, such Lenders and such L/C Issuer under the Loan Documents or applicable law (including in respect of the Collateral);
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrowers under the Debtor Relief Laws, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
(b)      Upon the occurrence of the Termination Date, (i) the Commitments of each Lender to make Loans and the Commitments of each Lender and L/C Issuer to issue or participate in Letters of Credit shall each automatically be terminated, (ii) the Loans, all interest thereon and all other amounts and Obligations shall automatically become due and payable in cash, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrowers and the other Loan Parties.
Section 8.03.      Exclusion of Immaterial Subsidiaries . Solely for the purposes of determining whether an Event of Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary shall be deemed not to include any Restricted Subsidiary affected by any event or circumstance referred to in any such clause that did not, as of the last day of the fiscal quarter of the Company most recently ended, have assets with a value in excess of 5% of the Tangible Assets or 5% of consolidated total revenues, in each case, of the Company and the Restricted Subsidiaries as of such date; provided that if it is necessary to exclude more than one Restricted Subsidiary from clause (f) or (g) of Section 8.01 pursuant to this Section 8.03 in order to avoid an Event of Default thereunder, all excluded Restricted Subsidiaries shall be considered to be a single consolidated Restricted Subsidiary for purposes of determining whether the condition specified above is satisfied.
Section 8.04.      Application of Funds . On the Termination Date and after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized), subject to the Intercreditor Agreement, any amounts received on account of the Obligations shall, subject to the provisions of Section 2.16, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer with respect to Letters of Credit (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer)) and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among

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the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuers (including to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit), the Hedge Banks and the Cash Management Banks, as applicable, in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law;
Subject to Section 2.04(d), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
Section 9.01.      Appointment . (a) Each of the Lenders and the L/C Issuers hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such actions on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are delegated to the Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together with such power as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender, L/C Issuer or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The provisions of this Article IX (other than Sections 9.10 and 9.12) are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrowers nor any other Loan Party shall have rights as a third party beneficiary of any such provisions.
(b)      Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each such L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in this Article IX and in the definition of “Agent Affiliate” included such L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to such L/C Issuer.

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(c)      The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender or Swingline Lender (if applicable)) and L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or on trust for) such Lender, L/C Issuer and its Affiliates for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX (including Section 9.07, as though such co- agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders and L/C Issuers hereby expressly authorize the Administrative Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders and L/C Issuers.
Section 9.02.      Delegation of Duties . The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through agents, sub-agents, employees or attorneys-in-fact (including for the purpose of any Borrowing or payment in alternative currencies) as shall be deemed necessary by the Administrative Agent and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. Each such sub-agent and the Affiliates of the Administrative Agent and each such sub-agent shall be entitled to the benefits of all provisions of this Article IX, Error! Reference source not found. and Section 11.04(b) (as though such sub-agents were the “Administrative Agent” under the Loan Documents) as if set forth in full herein with respect thereto. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub- agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final judgment of a court of competent jurisdiction).
Section 9.03.      Liability of Agents . No Agent Affiliate shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender, L/C Issuer or participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by any Agent under or in connection with, this Agreement or any other Loan Document, or the execution, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent Affiliate shall be under any obligation to any Lender, any L/C Issuer or participant to ascertain or to inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the

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covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the perfection or priority of any Lien or security interest created or purported to be created by the Collateral Documents, (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or (vi) or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. No Agent Affiliate shall have any duties or obligations to any Lender, any L/C Issuer or participant except those expressly set forth herein and in the other Loan Documents, and without limiting the generality of the foregoing, the Agent Affiliates:
(a)      shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)      shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Person is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that such Person shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose it to liability or that is contrary to any Loan Document or applicable law; and
(c)      shall not be required to carry out any “know your customer” or other checks in relation to any person on behalf of any Lender or any L/C Issuer and each Lender and each L/C Issuer confirms to the Administrative Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Administrative Agent or any of its Affiliates.
No Agent Affiliate be liable (i) to any participant or Secured Party or their Affiliates for any failure, delay in performance, breach by, or as a result of information provided by, any other party to any Loan Document or action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or such Person shall believe in good faith shall be necessary under the circumstances) or (ii) in the absence of its own gross negligence or willful misconduct, as determined by a final judgment of a court of competent jurisdiction.
Section 9.04.      Reliance by the Administrative Agent . (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, instrument, document, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and/or upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders and L/C Issuers against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and L/C Issuers; provided that the Administrative Agent shall not be required

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to take any action that, in its opinion or in the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law.
Section 9.05.      Notice of Default . The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders or the L/C Issuers, unless the Administrative Agent shall have received written notice from a Lender or a Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default.” The Administrative Agent will notify the Lenders and the L/C Issuers of its receipt of any such notice. The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VIII; provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders and the L/C Issuers.
Section 9.06.      Credit Decision; Disclosure of Information by Agents . Each Lender and each L/C Issuer acknowledges that no Agent Affiliate has made any representation or warranty to it, and that no act by the Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent Affiliate to any Lender or L/C Issuer as to any matter, including whether Agent Affiliates have disclosed material information in their possession. Each Lender and each L/C Issuer represents to each Agent that it has, independently and without reliance upon any Agent Affiliate and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrowers and the other Loan Parties hereunder. Each Lender and each L/C Issuer also represents that it will, independently and without reliance upon any Agent Affiliate and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrowers and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders or the L/C Issuers by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender or any L/C Issuer with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent Affiliate.
Section 9.07.      Indemnification of the Administrative Agent . Whether or not the transactions contemplated hereby are consummated, the Lenders and L/C Issuers shall indemnify upon demand the Administrative Agent and each other Agent Affiliate (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless the Administrative Agent and each other Agent Affiliate from and against any and all Indemnified Liabilities incurred by it; provided that no Lender or L/C Issuer shall be liable for the payment to any Agent Affiliate of any portion of such Indemnified Liabilities resulting from such Agent Affiliate’s own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07. In the case of any investigation,

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litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender, any L/C Issuer or any other Person. Without limitation of the foregoing, each Lender and each L/C Issuer shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including all reasonable fees, expenses and disbursements of any law firm or other external legal counsel and compensation of agents and employees paid for services rendered on behalf of the Lenders or the L/C Issuer) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrowers, provided that such reimbursement by the Lenders or by the L/C Issuers shall not affect the Borrowers’ continuing reimbursement obligations with respect thereto. The undertaking in this Section 9.07 shall survive termination of the Commitments of all Lenders and all L/C Issuers, the payment of all other Obligations and the resignation of the Administrative Agent.
Section 9.08.      Withholding Tax . If any Governmental Authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Taxes from amounts paid to or for the account of any Lender or any L/C Issuer for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender or such L/C Issuer failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective), such Lender or such L/C Issuer shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by any Loan Party and without limiting or expanding the obligation of the applicable Loan Party to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or otherwise, including any interest, additions to tax or penalties thereto, together with all reasonable expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender or any L/C Issuer by the Administrative Agent shall be conclusive absent manifest error.
Section 9.09.      Administrative Agent in Its Individual Capacity .     (a) Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each Person serving as Administrative Agent hereunder in its individual capacity. Each Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though such Agent were not an Agent or an L/C Issuer hereunder and without notice to or consent of the Lenders. The Lenders and L/C Issuer acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. With respect to its Loans, the Administrative Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not an Agent the Administrative Agent an L/C Issuer, and the terms “Lender” and “Lenders” include each Agent in its individual capacity.

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(b)      Each Lender and each L/C Issuer understands that the Person serving as Administrative Agent, acting in its individual capacity, and its Affiliates (collectively, the “ Agent’s Group ”) are engaged in a wide range of financial services and businesses (including investment management, financing, securities trading, corporate and investment banking and research) (such services and businesses are collectively referred to in this Section 9.09 as “ Activities ”) and may engage in the Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates. Furthermore, the Agent’s Group may, in undertaking the Activities, engage in trading in financial products or undertake other investment businesses for its own account or on behalf of others (including the Loan Parties and their Affiliates and including holding, for its own account or on behalf of others, equity, debt and similar positions in the Company, another Loan Party or their respective Affiliates), including trading in or holding long, short or derivative positions in securities, loans or other financial products of one or more of the Loan Parties or their Affiliates. Each Lender and each L/C Issuer understands and agrees that in engaging in the Activities, the Agent’s Group may receive or otherwise obtain information concerning the Loan Parties or their Affiliates (including information concerning the ability of the Loan Parties to perform their respective Obligations hereunder and under the other Loan Documents) which information may not be available to any of the Lenders or any of the L/C Issuers that are not members of the Agent’s Group. Neither the Administrative Agent nor any member of the Agent’s Group shall have any duty to disclose to any Lender or any L/C Issuer or use on behalf of the Lenders or on behalf of the L/C Issuers, and shall not be liable for the failure to so disclose or use, any information whatsoever about or derived from the Activities or otherwise (including any information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to account for any revenue or profits obtained in connection with the Activities, except that the Administrative Agent shall deliver or otherwise make available to each Lender and each L/C Issuer such documents as are expressly required by any Loan Document to be transmitted by the Administrative Agent to the Lenders or the L/C Issuers.
(c)      Each Lender and each L/C Issuer further understands that there may be situations where members of the Agent’s Group or their respective customers (including the Loan Parties and their Affiliates) either now have or may in the future have interests or take actions that may conflict with the interests of any one or more of the Lenders or L/C Issuers (including the interests of the Lenders or L/C Issuers hereunder and under the other Loan Documents). Each Lender and each L/C Issuer agrees that no member of the Agent’s Group is or shall be required to restrict its activities as a result of the Person serving as Administrative Agent being a member of the Agent’s Group, and that each member of the Agent’s Group may undertake any Activities without further consultation with or notification to any Lender or any L/C Issuer. None of (i) this Agreement nor any other Loan Document, (ii) the receipt by the Agent’s Group of information (including confidential information) concerning the Loan Parties or their Affiliates (including information concerning the ability of the Loan Parties to perform their respective Obligations hereunder and under the other Loan Documents) nor (iii) any other matter shall give rise to any fiduciary, equitable or contractual duties (including without limitation any duty of trust or confidence) owing by the Administrative Agent or any member of the Agent’s Group to any Lender or any L/C Issuer including any such duty that would prevent or restrict the Agent’s Group from acting on behalf of customers (including the Loan Parties or their Affiliates) or for its own account.
Section 9.10.      Resignation by the Administrative Agent . The Administrative Agent may resign as the Administrative Agent upon thirty (30) days’ prior notice to the Lenders, the L/C Issuers and the Borrowers. If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the Company at all times other than during the existence of an Event of Default (which consent of the

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Company shall not be unreasonably withheld or delayed). If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Company, a successor agent from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent, and the term “Administrative Agent” shall mean such successor administrative agent and/or supplemental administrative agent, as the case may be, and the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent shall be terminated. After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX, Error! Reference source not found. and Section 11.04(b) shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement. If no successor agent has accepted appointment as the Administrative Agent by the date which is thirty (30) days following the retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders and L/C Issuers shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to (a) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (b) otherwise ensure that Section 6.12 is satisfied, the successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents (if not already discharged therefrom as provided above in this Section 9.10). After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX, Section 11.04(a) and Section 11.04(b) shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent.
Any resignation by the Administrative Agent as Administrative Agent pursuant to this Section 9.10    shall also constitute its resignation as a Swingline Lender and its resignation as an L/C Issuer. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swingline Lender and L/C Issuer, (ii) the retiring Swingline Lender and L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit issued by Citibank, N.A., if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer effectively to assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
Anything herein to the contrary notwithstanding, if at any time the Required Lenders determine that the Person serving as Administrative Agent is (without taking into account any provision in the definition of “ Defaulting Lender ” requiring notice from the Administrative Agent or any other party) a Defaulting Lender, the Required Lenders (determined after giving effect to Section 11.01) may by notice to the Borrower Representative and such Person remove such Person as Administrative Agent and, with the consent of the Company (not to be unreasonably withheld), appoint a replacement Administrative Agent hereunder. Such removal will, to the fullest extent permitted by applicable law, be effective on the date a replacement Administrative Agent is appointed.
Section 9.11.      Administrative Agent May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition

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or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)      to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.04(j), Section 2.04(k), Section 2.10 and Section 11.04(b)) allowed in such judicial proceeding; and
(b)      to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, interim receiver, receiver and manager, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders or L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent under Section 2.10 and Section 11.04(b).
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
Section 9.12.      Collateral and Guaranty Matters . The Lenders and the L/C Issuer irrevocably agree:
(a)      that any Lien on any property granted to or held by the Administrative Agent under any Loan Document shall be automatically released (i) upon termination of the Commitments of all the Lenders and the L/C Issuer and payment in full of all Obligations (other than contingent indemnification obligations not yet accrued and payable) and the expiration or termination of all Letters of Credit (other than Letters of Credit in which the Outstanding Amount of the L/C Obligations related thereto have been Cash Collateralized or, if satisfactory to the L/C Issuer in its sole discretion, for which a backstop letter of credit is in place), (ii) at the time the property subject to such Lien is sold, disposed of or otherwise transferred or is to be sold, disposed of or otherwise transferred as part of or in connection with any sale, disposition or other transfer permitted hereunder or under any other Loan Document, (iii) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, with respect to the property owned by such Unrestricted Subsidiary or (iv) subject to Section 11.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders;
(b)      to release or subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(i);

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(c)      that any Loan Party (other than the Company) shall be automatically released from its obligations under the Loan Documents if such Person ceases to be a Subsidiary as a result of a transaction or designation permitted hereunder;
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations hereunder pursuant to this Section 9.12. In each case as specified in this Section 9.12, the Administrative Agent will promptly (and each Lender and each L/C Issuer irrevocably authorizes the Administrative Agent to), at the Company’s expense, promptly execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such Collateral from the assignment and security interest granted under the Collateral Documents (including UCC termination statements and mortgage releases), or to evidence the release of such Loan Party from its obligations under any of the Loan Documents, in each case in accordance with the terms of the Loan Documents and this Section 9.12 and return to the Borrowers, the possessory collateral in the possession of the Administrative Agent subject to the release.
Section 9.13.      Arrangers and Bookrunners . Except as expressly provided herein, none of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “Joint Lead Arranger” or “Joint Bookrunner” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender and each L/C Issuer acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder
Section 9.14.      Appointment of Supplemental Collateral Agents . (a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, collateral sub-agent, collateral co-agent, administrative sub-agent or administrative co- agent (any such additional individual or institution being referred to herein individually as a “ Supplemental Administrative Agent ” and collectively as “ Supplemental Administrative Agents ”).
(a)      In the event that the Administrative Agent appoints a Supplemental Administrative Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions of this Article IX and of

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Error! Reference source not found. and Section 11.04(b) that refer to the Administrative Agent shall inure to the benefit of such Supplemental Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require.
(b)      Should any instrument in writing from any Loan Party be required by any Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.
Section 9.15.      Reports and Financial Statements . By signing this Agreement, each Lender and each L/C Issuer:
(a)      is deemed to have requested that the Administrative Agent furnish such Lender or such L/C Issuer, as applicable, promptly after they become available, copies of all financial statements required to be delivered by the Company hereunder and all field examinations, audits and appraisals of the Collateral received by the Administrative Agent (collectively, the “ Reports ”);
(b)      expressly agrees and acknowledges that the Administrative Agent (i) makes no representation or warranty as to the accuracy of the Reports, and (ii) shall not be liable for any information contained in any Report;
(c)      expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Administrative Agent or any other party performing any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel;
(d)      agrees to keep all Reports confidential in accordance with the provisions of Section 11.07 (other than clause (g) thereof); and
(e)      without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Administrative Agent and any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any Loans or Letters of Credit that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans of the Borrowers; and (ii) to pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney costs) incurred by the Administrative Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender; provided that no Lender shall be liable for the payment to the Administrative Agent or any other Lender preparing a Report for any portion of losses arising from such claims, actions, proceedings, damages, costs, expenses and other amounts (including attorney costs) to the extent resulting from the Administrative Agent’s or such other Lender’s own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction.

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Section 9.16.      Posting of Approved Electronic Communications . (a) Each of the Lenders and L/C Issuers and each Loan Party agree that the Administrative Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders and the L/C Issuers by posting such Approved Electronic Communications on Debt Domain, IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “ Approved Electronic Platform ”).
(b)      Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single- user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the L/C Issuer and each Loan Party acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the L/C Issuer and each Loan Party hereby approves distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution.
(c)      The Approved Electronic Platform and the Approved Electronic Communications are provided “as is” and “as available”. Neither the Administrative Agent nor any of its Affiliates or any of their respective officers, directors, employees, agents, advisors, attorneys or representatives (each, an “ Agent Affiliate ”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications or the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Agent Affiliates in connection with the Approved Electronic Platform or the Approved Electronic Communications.
(d)      Each of the Lenders, the L/C Issuers and each Loan Party agree that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally-applicable document retention procedures and policies.
(e)      Each Borrower hereby acknowledges that certain of the Lenders may be “public- side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “ Public Lender ”). Each Borrower hereby agrees that so long as a Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “ Borrower Materials ”) that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrowers or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute confidential information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available

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through a portion of the Approved Electronic Platform designated “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Approved Electronic Platform not designated “ Public Investor. ” Notwithstanding the foregoing, the Company shall not be under any obligation to mark the Borrower Materials “ PUBLIC. ” In connection with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not in derogation of their confidentiality obligations under Section 11.07.
ARTICLE X
GUARANTEE
Section 10.01.      Guarantee . (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrowers and each other Loan Party when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
(b)      Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under any applicable Law relating to fraudulent conveyances, fraudulent transfers, or the insolvency of debtors (after giving effect to the right of contribution established in Section 10.02).
(c)      Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of the liability of such Guarantor under Section 10.01(b) without impairing the guarantee contained in this Article X or affecting the rights and remedies of the Secured Parties hereunder.
(d)      The guarantee contained in this Article X shall remain in full force and effect until all the Obligations (other than any contingent indemnification obligations not then due) shall have been satisfied by payment in full, no Letter of Credit shall be outstanding (except to the extent that the Letters of Credit have been Cash Collateralized or otherwise supported, in each case, on terms satisfactory to the Administrative Agent), and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers may be free from any Borrower Obligations.
(e)      No payment made by the Borrowers, any of the Guarantors, any other Guarantor or any other Person or received or collected by any Secured Party from the Borrowers, any of the Guarantors, any other Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to reduce, release, modify or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Obligations or any payment received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of such Guarantor hereunder until the Obligations (other than any contingent indemnification obligations not then due) are paid in full, no Letter of Credit shall be outstanding (except to the extent that the Letters of Credit have been Cash Collateralized or otherwise supported, in each case, on terms satisfactory to the Administrative Agent), and the Commitments are terminated.

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Section 10.02.      Right of Contribution . Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder (including by way of set-off rights being exercised against it), such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 10.03. The provisions of this Section 10.02 shall in no respect limit the obligations and liabilities of any Guarantor to the Secured Parties, and each Guarantor shall remain jointly and severally liable to the Secured Parties for the full amount guaranteed by such Guarantor hereunder.
Section 10.03.      No Subrogation . Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor by any Secured Party, no Guarantor shall be entitled to be subrogated to any of the rights of any Secured Party against the Borrowers or any Guarantor or any collateral security or guarantee or right of offset held by any Secured Party for the payment of the Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrowers or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Secured Parties by the Borrowers on account of the Obligations (other than any contingent indemnification obligations not then due) are paid in full, no Letter of Credit shall be outstanding (except to the extent that the Letters of Credit have been Cash Collateralized or otherwise supported, in each case, on terms satisfactory to the Administrative Agent), and the Commitments are terminated. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Obligations (other than any contingent indemnification obligations not then due) shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Administrative Agent in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
Section 10.04.      Amendments, etc . with Respect to the Borrower Obligations. Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Obligations made by any Secured Party may be rescinded by such Secured Party and any of the Borrower Obligations continued, and the Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, increased, amended, modified, accelerated, compromised, waived, surrendered or released by any Secured Party, and this Agreement and the other Loan Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or the Required Lenders or all Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by any Secured Party for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. No Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations or for the guarantee contained herein or any property subject thereto.
Section 10.05.      Guarantee Absolute and Unconditional . Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance that constitutes a legal or equitable discharge of a guarantor or a surety other than payment in full of the Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:

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(a)      The guarantee under this Article X is a guaranty of payment when due and not of collectability, and is a primary obligation of each Guarantor and not merely a contract of surety.
(b)      The Administrative Agent may enforce the guarantee under this Article X upon the occurrence of an Event of Default notwithstanding the existence of any dispute between the Borrowers and any Beneficiary with respect to the existence of such Event of Default.
(c)      Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by any Secured Party upon the guarantee contained in this Article X or acceptance of the guarantee contained in this Article X.
(d)      The Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Article X and all dealings between the Borrowers and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Article X.
(e)      To the fullest extent permitted by applicable law, each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrowers or any of the Guarantors with respect to the Obligations.
(f)      Each Guarantor understands and agrees that the guarantee contained in this Article X shall be construed as a continuing, absolute and unconditional guarantee of payment and performance without regard to
(i)      the validity or enforceability of the Credit Agreement or any other Loan Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party,
(ii)      any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrowers or any other Person against any Secured Party,
(iii)      any acts of any legislative body or Governmental Authority affecting the Borrowers, including but not limited to, any restrictions on the conversion of currency or repatriation or control of funds or any total or partial expropriation of the Borrowers’ property, or by economic, political, regulatory or other events in the countries where the Borrowers are located, or
(iv)      any other circumstance whatsoever (with or without notice to or knowledge of a Responsible Officer of the Company) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrowers for the Obligations, or of such Guarantor under the guarantee contained in this, in bankruptcy or in any other instance.
(g)      When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against the Borrowers, any other Guarantor or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any other Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrowers, any other Guarantor or any other Person or to realize upon any such

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collateral security or guarantee or to exercise any such right of offset, or any release of the Borrowers, any other Guarantor or any other Person or any such collateral security or guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Secured Parties against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Section 10.06.      Waiver by Guarantors . Each Guarantor hereby waives, for the benefit of the Secured Parties: (a) any right to require any Secured Party, as a condition of payment or performance by such Guarantor, to (i) proceed against Borrowers, any other Guarantor of the Obligations or any other Person, (ii) proceed against or exhaust any security held from Borrowers, any such other Guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of any Secured Party in favor of Borrowers or any other Person, or (iv) pursue any other remedy in the power of any Secured Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Borrowers or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Borrowers or any other Guarantor from any cause other than payment in full of the Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Secured Party’s errors or omissions in the administration of the Obligations, except behavior which amounts to bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights of set offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including the acceptance hereof, notices of default hereunder, the Secured Agreements or any agreement or instrument related thereto, the Secured Cash Management Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of extension of credit to Borrowers; (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate Guarantors or sureties, or which may conflict with the terms hereof, (h) any defenses arising from the amendment of waiver of any term of the Loan Documents; (i) any defenses arising from failure to perfect any security granted over the Collateral or any release of security over the Collateral, (j) any law or regulation of any jurisdiction or any other event affecting any term of the Loan Documents or the Obligations and (k) any other circumstances that might constitute a defense to the Guarantor.
Section 10.07.      Release of Liens and Release of Guaranty.
(a)      Subject to the terms of the Intercreditor Agreements, the Lenders hereby authorize and direct the Collateral Agent to release any Lien granted to or held by the Collateral Agent upon any Collateral (A) after payment in full of the Obligations and the termination or expiration of all Secured Hedge Agreements (other than obligations and liabilities under Secured Hedge Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedge Agreements, (B) upon any sale or other transfer by any Loan Party of any Collateral that is permitted under this Agreement (other than a sale or other transfer to a Loan Party) or upon effectiveness of any written direction by the consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 11.01, (C) upon a designation of a Restricted Subsidiary

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as an Unrestricted Subsidiary permitted hereunder, with respect to the Collateral owned by such Unrestricted Subsidiary, (D) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 11.01) with respect to the release of such Collateral and (E) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, with respect to the Collateral owned by such Guarantor. After either (v) payment in full of the Obligations and the termination or expiration of all Secured Agreements (other than obligations and liabilities under Secured Hedge Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Agreements, (w) upon any sale or other transfer of a Loan Parry that is permitted under this Agreement (other than a sale or other transfer to a Loan Party), (x) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, (y) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 11.01) with respect to the release of any Guarantor under the terms of the Guaranty or (z) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, each applicable Guarantor (or, in the case of clause (w) above, the applicable Guarantor so sold or transferred) shall automatically be released from the Guaranty, all without delivery of any instrument or performance of any act by any Person; provided that any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(b)      Notwithstanding anything to the contrary contained herein or in any other Loan Document, in connection with any termination or release pursuant to this Section 10.07, the Administrative Agent and/or Collateral Agent shall be, and are hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender) to execute and deliver, and shall promptly execute and deliver to the applicable Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release (including (1) UCC termination statements and (2) in the case of a release of Mortgages, a partial release) and return to the Borrower, the possessory Collateral that is in the possession of the Collateral Agent and is the subject of such release.
(c)      Any execution and delivery of documents, or the taking of any other action, by the Administrative Agent and/or Collateral Agent pursuant to this Section 10.07 shall be without recourse to or warranty by the Administrative Agent or Collateral Agent.
Section 10.08.      Subordination of Other Obligations . Any Indebtedness of the Borrowers or any Guarantor held as of the Closing Date or thereafter by any Guarantor (the “ Obligee Guarantor ”) is hereby subordinated in right of payment to the Obligations, and any such indebtedness collected or received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for the Administrative Agent on behalf the Beneficiaries and shall forthwith be paid over to the Administrative Agent for the benefit of the Beneficiaries to be credited and applied against the Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof.

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Section 10.09.      Authority of Guarantors or Borrowers . It shall not be necessary for any Beneficiary to inquire into the capacity or powers of any Guarantor or Borrowers or the officers, directors or agents acting or purporting to act on behalf of any of them.
Section 10.10.      Financial Condition of Borrowers . Any Credit Extension may be made to the Borrowers or continued from time to time, without notice to or authorization from any Guarantor regardless of the financial or other condition of Borrowers at the time of such grant or continuation. No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of the Borrowers. Each Guarantor has adequate means to obtain information from the Borrowers on a continuing basis concerning the financial condition of the Borrowers and its ability to perform its obligations under the Loan Documents, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of the Borrowers and all circumstances bearing upon the risk of nonpayment of the Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of the Borrowers known as of the Closing Date or thereafter known by any Beneficiary.
Section 10.11.      Taxes and Payments . The provisions of Section 3.01(a)-3.01(f) shall apply mutatis mutandis to the Guarantors and payments thereby.
Section 10.12.      Assignments . Each Guarantor acknowledges that the Administrative Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to it and any Note or Notes held by it) and such assignee, transferee or participant shall thereupon become vested with all the benefits in respect thereof granted to such party herein or otherwise, in each case as and to the extent provided in Section 11.06. No Guarantor shall have the right to assign its rights hereunder or any interest herein except in accordance with Section 11.06.
Section 10.13.      Reinstatement . Each Guarantor agrees that if (a) any payment made by the Borrowers or any other Person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (b) the proceeds of Collateral are required to be returned by any Beneficiary to the Borrowers or its estate, trustee, receiver or any other party including any Guarantor or its estate, trustee, or receiver under any requirement of Law, then, to the extent of such payment or repayment, any such Guarantors liability hereunder shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, the guarantee under this Article X shall have been cancelled or surrendered (and, if any Lien or other Collateral securing such Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), the guarantee under this Article X (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Guarantor in respect of the amount of such payment (or any lien or other Collateral securing such obligation).
Section 10.14.      Keepwell . Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guarantee in respect of Hedging Agreements (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.14 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.14, or otherwise under this Guarantee, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations

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of each Qualified ECP Guarantor under this Section 10.14 shall remain in full force and effect until the Obligations have been paid in full and the Commitments and all Letters of Credit have been terminated. Each Qualified ECP Guarantor intends that this Section 10.14     constitute, and this Section 10.14 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
ARTICLE XI
MISCELLANEOUS
Section 11.01.      Amendments, Etc . No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrowers or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrowers or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a)      extend or increase the Commitment of any Lender without the written consent of each Lender directly affected thereby;
(b)      (i) extend the scheduled maturity of any Loan or (ii) postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) or any mandatory reduction of the aggregate Commitments hereunder without the written consent of each Lender directly adversely affected thereby;
(c)      reduce the principal of, or the stated rate of interest specified herein on, any Loan or Unreimbursed Amount, or (subject to clause (iv) of the proviso to this Section 11.01) any fees or other amounts payable hereunder without the written consent of each Lender entitled to such amount; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate;
(d)      change Section 2.07 or Section 8.04 in a manner that would alter the pro rata sharing of payments or payment priorities required thereby without the written consent of each Lender;
(e)      change any provision of this Section 11.01 or the definitions of “Required Lenders”, “Supermajority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;
(f)      release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender; provided that the Collateral Agent may, without consent from any other Lender, release any Collateral that is sold or otherwise Disposed of by a Loan Party in compliance with Section 7.05 or as otherwise expressly provided in the Loan Documents; or
(g)      release any Borrower or all or substantially all of the Guarantors, without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to Error! Reference source not found. or as otherwise expressly permitted under the Loan Documents (in which case such release may be made by the Administrative Agent acting alone);

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provided that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; and (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights and duties of the Swingline Lender under this Agreement; and (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto and (v) no amendment, waiver or consent shall, unless in writing and signed by the Supermajority Lenders, (i) increase the advance rates or add new asset categories to the Borrowing Base, or (ii) change the definition of “Borrowing Base” or of any term included in the calculation thereof in a manner that would have the effect of increasing the Borrowing Base; provided, that the foregoing shall not limit the discretion of the Administrative Agent to change, establish or eliminate any Reserves. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, the Borrowers may replace each Nonconsenting Lender in accordance with Section 11.13; provided that such amendment, waiver, consent or release can be effected as a result of all such assignments.
Notwithstanding the foregoing, the Borrowers and the Administrative Agent may amend (and may authorize the Collateral Agent to amend) this Agreement and the other Loan Documents without the consent of any Lender (a) to cure any ambiguity, omission, mistake, error, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, (b) to add a Guarantor with respect to the Loans or collateral to secure the Loans or (c) to make administrative changes that do not adversely affect the rights of any Lender. In addition, the Administrative Agent, without the consent of any Lender, shall be permitted to enter into (and direct the Collateral Agent, as applicable, to enter into) any amendments, waivers, modifications or supplements to any Intercreditor Agreement, if the Administrative Agent would have been permitted hereunder to enter into a new Intercreditor Agreement which contained the terms set forth in such amendment, waiver, modification or supplement, at the time when such amendment, waiver, modification or supplement is entered into.
Any such waiver and any such amendment or modification pursuant to this Section 11.01 shall apply equally to each of the Lenders and shall be binding upon the Borrowers, the Lenders, the L/C Issuers, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Borrowers, the Lenders, the L/C Issuers and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default that is waived pursuant to this Section 11.01 shall be deemed to be cured and not continuing during the period of such waiver.
Section 11.02.      Notices; Effectiveness; Electronic Communications . (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or

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registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)      if to the Borrowers, the Administrative Agent or L/C Issuer, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 11.02 (or such other address or number as the Borrowers, the Administrative Agent or any L/C Issuer may from time to time notify to each other party); and
(ii)      if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).
(b)      Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to the Lenders and the L/C Issuers to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
Each Lender agrees that notice to it specifying that any Borrower Materials or other notices or communications have been posted to the Approved Electronic Platform shall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender, the Administrative Agent shall deliver a copy of the Borrower Materials, notices or other communications to such Lender by email or fax.
(c)      The Approved Electronic Platform. THE APPROVED ELECTRONIC PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A

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PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE APPROVED ELECTRONIC PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to the Borrowers, any Lender, L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses have resulted from the gross negligence or willful misconduct of such Agent Party as determined by a court of competent jurisdiction in a final, non-appealable judgment; provided, however, that in no event shall the Agent Party have any liability to the Borrowers, any Lender, L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d)      Change of Address, Etc. Each of the Borrowers, the Administrative Agent and each L/C Issuer may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrowers, the Administrative Agent and each L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(e)      Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Borrowing Notices) purportedly given by or on behalf of the Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
Section 11.03.      No Waiver; Cumulative Remedies . No failure by any Lender, L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall impair such right, remedy, power or privilege or be construed to be a waiver of any default or acquiescence therein; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided and in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
Section 11.04.      Expenses; Indemnity; Damage Waiver.
(a)      Costs and Expenses. The Borrowers shall pay (i) all reasonable and documented out-of-pocket legal and other expenses incurred by the Arrangers, the Agents and their respective Affiliates and the Collateral Agent (including (x) the reasonable and documented fees, charges and disbursements of a single counsel for the Agents and the Arrangers, a single local counsel in each

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relevant jurisdiction and any special counsel reasonably deemed necessary by the Administrative Agent and a separate counsel for the Collateral Agent and (y) per diem field examination costs (whether incurred before or after the date hereof)), syndication costs, the preparation, due diligence, negotiation, execution, delivery, administration and enforcement of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket legal and other expenses (including the cost of any investigation or preparation) incurred by the Arrangers, any Agent, L/C Issuer or any Lender or Collateral Agent (including the reasonable fees, charges and disbursements of any counsel for any Agent, L/C Issuer or any Lender, limited to one firm of counsel for all Indemnitees (as defined below), taken as a whole, and if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the indemnified party affected by such conflict notifies the Borrower Representative of the existence of such conflict, of another firm of counsel for such affected Indemnitees and local counsel for the conflicted party and a separate counsel for the Collateral Agent), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out- of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. Each Guarantor agrees to pay or reimburse each Secured Party for all its reasonable and documented out-of-pocket expenses incurred in collecting against such Guarantor under the guarantee contained in Article X or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents to which such Guarantor is a party, including, without limitation, the fees and disbursements of counsel to each Secured Party and of counsel to the Administrative Agent.
(b)      Indemnification by the Borrowers. The Borrowers and each Guarantor shall indemnify the Administrative Agent (and any sub-agent thereof), the Arrangers, each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities (including any Environmental Liability) and related reasonable and documented out-of- pocket fees and expenses (including the reasonable documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee (whether or not such investigation, litigation, claim or proceeding is brought by any Borrower, the Company’s equity holders, affiliates or creditors or an Indemnitee and whether or not any such Indemnitee is otherwise a party thereto) or by the Borrowers or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub- agent thereof) and its Related Parties only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit and (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by a Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto (all of the foregoing, collectively, the “ Indemnified Liabilities ”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,

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liabilities or related expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to (x) have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing), (y) result from a claim brought by the Borrowers or any other Loan Party against an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document or (z) have arisen out of or in connection with any claim, litigation, loss or proceeding not involving an act or omission of the Borrowers or any of their respective Related Parties and that is brought by an Indemnitee against another Indemnitee (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under this Agreement or any claims arising out of any act or omission of the Borrowers or any of its Affiliates). The Borrowers also agree that no Indemnitee shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Borrower for or in connection with this Agreement or the other Loan Documents, any transactions contemplated hereby or thereby or such Indemnitees’ role or services in connection herewith or therewith, except to the extent that any liability for losses, claims, demands, damages, liabilities or expenses incurred by any Borrower (i) resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (ii) resulted from a material breach by such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing) of the terms of this Agreement or the other Loan Documents (in the case of clauses (i) and (ii), as determined by a court of competent jurisdiction in a final, non-appealable judgment). This Section 11.04(b) shall not apply with respect to Taxes other than any taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
Each Borrower acknowledges that information and other materials relative to the Facility and the transactions contemplated hereby may be transmitted through the Approved Electronic Platform. No Indemnitee will be liable to any Borrower or any of its affiliates or any of their respective security holders or creditors for any damages arising from the use by unauthorized persons of information or other materials sent through the Approved Electronic Platform that are intercepted by such persons, except to the extent such damages (i) resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (ii) resulted from a material breach by such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing) of the terms of this Agreement or the other Loan Documents (in the case of clauses (i) and (ii), as determined by a court of competent jurisdiction in a final, non- appealable judgment).
(c)      Reimbursement by Lenders. To the extent that the Borrowers for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s pro rata share (based on the Loans and unused Commitments held by such Lender relative to the total Loans and unused Commitments then outstanding) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.    The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.13(d).
(d)      Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no party hereto shall assert, and each hereby waives, any claim against the Borrowers and their respective Affiliates or any Indemnitee, on any theory of liability, for special, indirect,

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consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 11.04(a) or 11.04(b), respectively. No Indemnitee referred to in subsection (b) above or the Borrowers and their respective Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to the extent such damages result from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by the final nonappealable judgment of a court of competent jurisdiction.
(e)      Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f)      Survival. The agreements in this Section shall survive the resignation of the Administrative Agent and the Arrangers, the replacement of any Lender, the termination of the aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations, including any obligations in respect of any Secured Agreements. The reimbursement, indemnity and contribution obligations of the Borrowers under this Section 11.04 will be in addition to any liability which the Borrowers may otherwise have, will extend upon the same terms and conditions to any affiliate of any Indemnitee and the partners, members, directors, agents, employees, and controlling persons (if any), as the case may be, of any Indemnitee and any such affiliate, and will be binding upon and inure to the benefit of any successors and assigns of the Company, any Indemnitee, any such affiliate, and any such Person.
Section 11.05.      Payments Set Aside . To the extent that any payment by or on behalf of the Borrowers is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, any L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Overnight Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
Section 11.06.      Successors and Assigns . (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder, except through a transaction permitted hereunder, without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of Section

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11.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)      Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments or Loans (including for purposes of this Section 11.06(b), participations in L/C Obligations and Swingline Loans) at the time owing to it), provided that:
(i)      except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if “ Trade Date ” is specified in the Assignment and Acceptance, as of such “ Trade Date ”, shall not be less than $5,000,000;
(ii)      each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned; and
(iii)      the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d).
Each Lender, upon succeeding to an interest in the Commitments and Loans, represents and warrants as of the effective date of such Assignment and Acceptance that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be and (iii) it will make or invest in, as the case may be, its

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Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 11.06, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control).
(c)      Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and the L/C Issuer, at any reasonable time and from time to time upon reasonable prior notice.
(d)      Participations. Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a), (b), (c), (f) and (g) of the first proviso to Section 11.1 that affects such Participant (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof). Subject to subsection (e) of this Section, the Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment; provided, further, that in the case of Section 3.01, such Participant shall have complied with the requirements of such section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Error! Reference source not found. as though it were a Lender, provided such Participant agrees to be subject to Section 2.14 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that the relevant parties, acting reasonably and in

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good faith, determine that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)      Limitations upon Participant Rights.    A Participant shall not be entitled to receive any greater payment under Section 3.01, Section 3.04 or Section 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent or such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(f)      Certain Pledges. Any Lender may at any time pledge or assign to any Person a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g)      Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.
(h)      Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time a L/C Issuer or Swingline Lender, as applicable, assigns all of its Commitment and Loans pursuant to Section 11.06(b), such L/C Issuer or Swingline Lender, as applicable, may, (i) upon 30 days’ notice to the Borrowers, the other Lenders and other L/C Issuers, resign as L/C Issuer or Swingline Lender, as applicable, or (ii) upon 10 days’ notice to the Borrowers, the other Lenders and other L/C Issuers, appoint an Affiliate of such L/C Issuer or Swingline Lender, as applicable, as a successor L/C Issuer or Swingline Lender hereunder. In the event of any such resignation as L/C Issuer or Swingline Lender pursuant to clause (i) of the preceding sentence, the Borrowers shall be entitled to appoint from among the Lenders and their Affiliates a successor L/C Issuer or Swingline Lender hereunder; provided, however, that no failure by the Borrowers to appoint any such successor shall affect the resignation of such L/C Issuer or Swingline Lender, as the case may be. If any L/C Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(d)). If Citibank, N.A. resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant

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to Section 2.05(c). Upon the appointment of a successor L/C Issuer and/or Swingline Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to such L/C Issuer to effectively assume the obligations of such L/C Issuer with respect to such Letters of Credit.
Section 11.07.      Treatment of Certain Information; Confidentiality . Each of the Agents, Arrangers and the Lenders agrees that it will treat as confidential all information provided to it hereunder or under any other Loan Document by or on behalf of the Company or any of its Subsidiaries or Affiliates, except to the extent such information (a) is publicly available or becomes publicly available other than by reason of disclosure by the Agents, Arrangers or the Lenders, any of their respective affiliates or representatives in violation of this Agreement or the other Loan Documents, (b) was received by the Agents, Arranger and the Lenders from a source (other than the Company or any of its affiliates, advisors, members, directors, employees, agents or other representatives) not known by the Agents, Arrangers and the Lenders to be prohibited from disclosing such information to such Person by a legal, contractual or fiduciary obligation to the Company and (c) to the extent that such information was already in the Agents’, Arrangers’ and the Lenders’ possession from a source other than the Company or any of its affiliates, advisors, members, directors, employees, agents or other representatives or is independently developed by such Person without the use of or reference to any such confidential information; provided, however, that nothing herein will prevent the Agents, Arrangers and the Lenders from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable Law or compulsory legal process (in which case such Person agrees to inform the Company promptly thereof to the extent not prohibited by law), (b) upon the request or demand of any regulatory authority or any self-regulatory authority having jurisdiction over such Person or any of its affiliates, (c) to such Person’s affiliates and their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other experts or agents who need to know such information and on a confidential basis and who have been advised of their obligation to keep information of this type confidential or are bound by an agreement to keep information of this type confidential (with such Agent, Arrangers or Lender being responsible for such person’s compliance with this Section 11.07), (d) to potential and prospective Lenders, assignees, participants and any direct or indirect contractual counterparties to any Secured Agreements relating to the Company or its obligations under this Agreement (other than Disqualified Institutions), in each case, subject to such recipient’s agreement (which agreement may be in writing or by “click through” agreement or other affirmative action on the part of the recipient to access such information and acknowledge its confidentiality obligations in respect thereof pursuant to customary syndication practice) to keep such information confidential on substantially the terms set forth in this Section 11.07, (e) to ratings agencies who have agreed to keep such information confidential on terms no less restrictive than this Section 11.07 in any material respect or otherwise on terms acceptable to the Company in connection with obtaining ratings of the Loans, (f) for purposes of establishing a “due diligence” defense, (g) on a confidential basis, to (i) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans and (ii) market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent or the Collateral Agent in connection with the administration, settlement and management of this Agreement and the Loan Documents or (h) disclosures in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder. In addition, the Administrative Agent or any Lender, in consultation with the Company, may place the customary “tombstone” advertisement in publications of its choice at its expense; provided, that, no “tombstone” advertisement may be used or submitted for publication without the prior written consent of the Company and, thereafter, the Administrative Agent may, from time to time, publish such information

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until such time that the Company shall have requested in writing that the Arrangers cease any such further publication.
Each of the Agents, the Arrangers and the Lenders acknowledges that (a) the information may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Laws, including Federal and state securities laws
Section 11.08.      Right of Setoff . In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default or at maturity, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any and all of the obligations of the Borrowers or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, such L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and L/C Issuer agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Section 11.09.      Usury Saving Clause . Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrower.
Section 11.10.      Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof

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and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement or of a Lender Addendum by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 11.11.      Survival of Representations and Warranties . All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
Section 11.12.      Severability . If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.13.      Replacement of Lenders . If (a) any Lender requests compensation under Section 3.04, (b) the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (c) any Lender is at such time a Defaulting Lender or has given notice pursuant to Section 3.02 or (d) any Lender becomes a Nonconsenting Lender (as hereinafter defined), then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to (and such Lender shall) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee selected by the Borrowers that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that (i) the Administrative Agent shall have received the assignment fee specified in Section 11.06(b); (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts); (iii) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; (iv) such assignment does not conflict with applicable Laws; and (v) neither the Administrative Agent nor any Lender shall be obligated to be or to find the assignee.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply. In the event that (x) the Borrowers or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto and (y) the Required Lenders have agreed to such consent, waiver

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or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Nonconsenting Lender.” Any such replacement shall not be deemed a waiver of any rights that the Borrowers shall have against the replaced Lender.
Each Lender agrees that if the Company exercises its option hereunder to cause an assignment by such Lender as a Nonconsenting Lender or otherwise pursuant to this Section 11.13, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 11.06. In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 11.06 on behalf of a Nonconsenting Lender or Lender replaced pursuant to this Section 11.13, and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 11.06.
Section 11.14.      Governing Law; Jurisdiction; Etc . (a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b)      CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH LOAN PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE LOAN PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 11.02; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE LOAN PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, ARRANGERS, COLLATERAL AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
Section 11.15.      Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING

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HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 11.15 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 11.16.      Designation of Secured Agreements . (a) The Borrowers and any Cash Management Bank or Hedge Bank may from time to time designate a Cash Management Agreement or Hedging Agreement permitted hereunder as a Secured Agreement upon written notice (a “ Designation Notice ”) to the Administrative Agent from the Borrowers and such Cash Management Bank or Hedge Bank, in form reasonably acceptable to the Administrative Agent, which Designation Notice shall include a description of such Secured Agreement and the maximum amount of obligations thereunder which are to constitute Obligations (each, a “ Designated Amount ”); provided that (x) no such Designated Amount with respect to any Secured Agreement shall constitute Obligations to the extent that, at the time of delivery of the applicable Designation Notice and after giving effect to such Designated Amount (including to the reserve for Secured Agreements to be established by the Administrative Agent in connection therewith), the Availability would be less than zero and (y) any such Designated Amount shall constitute Obligations only to the extent that such Designated Amount, together with all other Designated Amounts under Secured Agreements theretofore designated hereunder and constituting Obligations, does not exceed, $10,000,000.
(b)      The Borrowers and any counterparty to a Secured Agreement may increase, decrease or terminate any Designated Amount in respect of such Secured Agreement upon written notice to the Administrative Agent; provided that any increase in a Designated Amount shall be deemed to be a new designation of a Designated Amount pursuant to a new Designation Notice and shall be subject to the limitations set forth in Section 11.16(a). No obligations under any Secured Agreement in excess of the applicable Designated Amount shall constitute Obligations hereunder or the other Loan Documents.
(c)      No counterparty to a Secured Agreement that obtains the benefits of Section 8.03, Article X, or any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. The Administrative Agent shall not be required

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to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable counterparty to a Secured Agreement.
Section 11.17.      No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrowers and the other Loan Parties acknowledge and agree that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Borrowers, the other Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (B) the Borrowers and the other Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent deemed appropriate by such Loan Parties, and (C) the Borrowers and the other Loan Parties are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and the Arrangers each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers, the other Loan Parties, their respective Affiliates or any other Person and (B) neither the Administrative Agent nor the Arrangers have any obligation to the Borrowers, the other Loan Parties or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers and their Affiliates, and neither the Administrative Agent nor the Arrangers have any obligation to disclose any of such interests to the Borrowers or their Affiliates. To the fullest extent permitted by law, the Borrowers and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 11.18.      Joint and Several Liability . All Loans, upon funding, shall be deemed to be jointly funded to and received by the Borrowers. Each Borrower is jointly and severally liable under this Agreement for all Obligations, regardless of the manner or amount in which proceeds of Loans are used, allocated, shared or disbursed by or among the Borrowers themselves, or the manner in which the Administrative Agent, any Lender and/or any L/C Issuer accounts for such Loans or other Credit Extensions on its books and records. Each Borrower shall be liable for all amounts due to the Administrative Agent, any Lender and/or any L/C Issuer from the Borrowers under this Agreement, regardless of which Borrower actually receives Loans or other Credit Extensions hereunder or the amount of such Loans and Credit Extensions received or the manner in which the Administrative Agent, such Lender and/or such L/C Issuer accounts for such Loans or other Credit Extensions on its books and records. Each Borrower’s Obligations with respect to Loans and other Credit Extensions made to it, and such Borrower’s Obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to the other Borrowers hereunder shall be separate and distinct obligations, but all such Obligations shall be primary obligations of such Borrower. The Borrowers acknowledge and expressly agree with the Administrative Agent, each Lender and each L/C Issuer that the joint and several liability of each Borrower is required solely as a condition to, and is given solely as inducement for and in consideration of, credit or accommodations extended or to be extended under the Loan Documents to any or all of the other Borrowers and is not required or given as a condition of Credit Extensions to such Borrower. Each Borrower’s Obligations under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the release of any other Borrower pursuant to Section 9.12 or the validity or enforceability, avoidance, or subordination of the Obligations of any other Borrower or of any promissory note or other document

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evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance, release, or granting of any indulgence by the Administrative Agent, any Lender and/or any L/C Issuer with respect to any provision of any instrument evidencing the Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent, any Lender and/or any L/C Issuer, (iv) the failure by the Administrative Agent, any Lender and/or any L/C Issuer to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower, (v) the Administrative Agent’s, any Lender’s and/or any L/C Issuer’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in- possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Administrative Agent’s, any Lender’s and/or any L/C Issuer’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower.    With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other Credit Extensions made to any of the other Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent, any Lender and/or any L/C Issuer now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent, any Lender and/or any L/C Issuer to secure payment of the Obligations or any other liability of any Borrower to the Administrative Agent, any Lender and/or any L/C Issuer. Upon any Event of Default, the Administrative Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations.    Each Borrower consents and agrees that the Administrative Agent shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations. Notwithstanding anything to the contrary in the foregoing, any Person released from its Obligations in accordance with Section 9.12 shall be simultaneously released from the foregoing provisions of this Section 11.18.
Section 11.19.      Contribution and Indemnification Among the Borrowers . Each Borrower is obligated to repay the Obligations as a joint and several obligor under this Agreement. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, sell any of its assets to satisfy or otherwise repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “ Accommodation Payment ”), then the Company making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers, in an amount, for each of such other Borrowers, if any, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “ Allocable Amount ” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“ UFTA ”) or Section 2 of the Uniform Fraudulent Conveyance Act (“ UFCA ”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification,

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and reimbursement under this Section shall be subordinate in right of payment to the prior payment in full of the Obligations. The provisions of this Section 11.19 shall, to the extent expressly inconsistent with any provision in any Loan Document, supersede such inconsistent provision. If any Borrower discharges the Obligation (or any part of it) pursuant to Section 11.18, the corresponding claim against the relevant Loan Party shall not pass over and no rights and claims of the Secured Parties under any Loan Document shall pass to any Loan Party by subrogation or otherwise.
Section 11.20.      Agency of the Borrower Representative for Each Other Borrower . Each of the other Borrowers irrevocably appoints the Company as its agent for all purposes relevant to this Agreement (in such capacity, the “ Borrower Representative ”), including the giving and receipt of notices and execution and delivery of all documents, instruments, and certificates contemplated herein (including, without limitation, execution and delivery to the Administrative Agent of Borrowing Base Certificates and Borrowing Notices) and all modifications hereto. Any acknowledgment, consent, direction, certification, or other action which might otherwise be valid or effective only if given or taken by all or any of the Borrowers or acting singly, shall be valid and effective if given or taken only by the Borrower Representative, whether or not any of the other Borrowers join therein, and the Administrative Agent, the Lenders and the L/C Issuers shall have no duty or obligation to make further inquiry with respect to the authority of the Borrower Representative under this Section 11.20; provided that nothing in this Section 11.20 shall limit the effectiveness of, or the right of the Administrative Agent, the Lenders and the L/C Issuers to rely upon, any notice (including, without limitation, a Borrowing Notice), document, instrument, certificate, acknowledgment, consent, direction, certification or other action delivered by any Borrower pursuant to this Agreement.
Section 11.21.      USA Patriot Act Notice . Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Act.
Section 11.22.      Time of the Essence . Time is of the essence of the Loan Documents .
Section 11.23.      Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)      the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)      the effects of any Bail-in Action on any such liability, including, if applicable:
(i)      a reduction in full or in part or cancellation of any such liability;
(ii)      a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other

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instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)      the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
Section 11.24.      Intercreditor Agreement.
(a)      The Administrative Agent is authorized to enter into any Intercreditor Agreement, and the parties hereto acknowledge that each Intercreditor Agreement is binding upon them. Each Lender (a) hereby consents to the subordination of the Liens on the Collateral other than the ABL Priority Collateral securing the Obligations on the terms set forth in the Term Loan Intercreditor Agreement, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any Intercreditor Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into each Intercreditor Agreement and to subject the Liens on the Collateral securing the Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrowers and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of each Intercreditor Agreement.
(b)      Each Lender, by its execution and delivery of this Agreement (whether directly on the Closing Date or as an assignee of a Lender), hereby (a) confirms its agreement to the foregoing provisions of this Section 11.24 and (b) agrees to be bound by the terms of each Intercreditor Agreement as an “ ABL Claimholder ” (as defined in the Intercreditor Agreement).
[ Signature Pages Follow ]




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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
BORROWERS:
CONTURA ENERGY, INC.
By:
/s/ C. Andrew Eidson
 
Name: C. Andrew Eidson
 
Title: Executive Vice President, Chief Financial Officer and Treasurer



CONTURA ENERGY, LLC
By:
/s/ C. Andrew Eidson
 
Name: C. Andrew Eidson
 
Title: Manager and President



CONTURA ENERGY SERVICES, LLC
By:
/s/ C. Andrew Eidson
 
Name: C. Andrew Eidson
 
Title: Executive Vice President, Chief Financial Officer and Treasurer



CONTURA MINING HOLDING, LLC
By:
/s/ C. Andrew Eidson
 
Name: C. Andrew Eidson
 
Title: Executive Vice President, Chief Financial Officer and Treasurer



[SIGNATURE PAGE TO CREDIT AGREEMENT]
    



EMERALD CONTURA, LLC
DICKENSON-RUSSELL CONTURA,
LLC NICHOLAS CONTURA, LLC
CONTURA COAL RESOURCES, LLC
CONTURA WYOMING LAND, LLC
CONTURA COAL SALES, LLC
POWER MOUNTAIN CONTURA, LLC
CUMBERLAND CONTURA, LLC
CONTURA PENNSYLVANIA LAND, LLC
CONTURA FREEPORT, LLC
CONTURA EUROPEAN MARKETING ; LLC
PARAMONT CONTURA, LLC
CONTURA PENNSYLVANIA TERMINAL, LLC
CONTURA CAPP LAND, LLC
CONTURA COAL WEST, LLC
CONTURA TERMINAL, LLC
By:
/s/ C. Andrew Eidson
 
Name: C. Andrew Eidson
 
Title: Executive Vice President, Chief Financial Officer and Treasurer



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CITIBANK, N.A.,  
as Administrative Agent, Lender,
L/C Issuer and Swingline Lender
By:
/s/ Shane Arezara
 
Name: Shane Arezara
 
Title: Vice President & Director



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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,  
as Lender and UC Issuer
L/C Issuer and Swingline Lender
By:
/s/ Doreen Barr
 
Name: Doreen Barr
 
Title: Authorized Signatory


By:
/s/ Szymon Ordys
 
Name: Szymon Ordys
 
Title: Authorized Signatory



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BMO Harris Bank N.A.,  
as Lender and UC Issuer
By:
/s/ Jason Hoefler
 
Name: Jason Hoefler
 
Title: Managing Director



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JEFFERIES FINANCE LLC,  
as a Lender
By:
/s/ John Koehler
 
Name: John Koehler
 
Title: Vice President



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UBS AG, Stamford Branch,  
as a Lender
By:
/s/ Craig Perason
 
Name: Craig Perason
 
Title: Associate Director


By:
/s/ Darlene Arias
 
Name: Darlene Arias
 
Title: Director



164
    



Webster Business Credit Corporation ,  
as a Lender
By:
/s/ Deborah Kos-Hannon
 
Name: Deborah Kos-Hannon
 
Title: SVP




165
    


Schedule 1.01(a)
Guarantors
None.





Schedule 1.01(b)
Excluded Wyoming Property
See attached.



    



Surface Land: Black Thunder Ranch
TOWNSHIP 46 NORTH, RANGE 69 WEST, 6TH P.M.
Section 22: E½E½
Section 23: W½
Section 24: S½, S½N½, NE¼NW¼, N½NE ¼
Section 26: W½SW ¼
Section 27: SE¼, E½SW¼
Section 29: All
Section 31: W½SW¼, E½SW¼, SE¼
Section 32: All
Section 33: SW¼
Section 34: NE¼NW¼, W½NE ¼, SE¼NE¼, E½SW¼, SE¼
Section 35: All
TOWNSHIP 46 NORTH, RANGE 70 WEST, 6TH P.M.
Section 35: All
TOWNSHIP 45 NORTH, RANGE 69 WEST, 6TH P.M.
Section 1: N½N½, S½N½, S½ (all)
Section 2: N½NW¼, S½ NW¼, S½
Section 3: N½NE¼, S½NE¼, SW¼, W½SE¼
Section 4: N½S½, S½SW¼
Section 5: N½NW¼, S½NW¼, S½
Section 6: N½N½, SW¼NW¼, W½SW¼, SE¼NW¼, E½SW¼, S½NE¼, SE¼ (all)
Section 8: All
Section 9: NW¼, NW¼NE¼, W½SW¼
Section 10: N½N½, SE¼NE¼
Section 12: S½, NE¼NE¼
Section 17: E½E½, E½W½, W½NW¼, NW¼SW¼
Section 18: W½W½, E½W½, SW¼NE¼, SW¼SE¼, E½E½
Section 19: W½W½, E½W½, W½E½
Section 30: W½W½, E½W½
Section 31: SW¼NW¼, W½SW¼
TOWNSHIP 45 NORTH, RANGE 70 WEST, 6TH P.M.
Section 1: N½N½, S½N½, S½ (all)
Section 2: N½N½, S½NE¼, SE¼
Section 11: E½
Section 12: All
Section 13: All
Section 24: All
Section 25: All
Section 26: All
Section 29: S½SW¼




Section 31: SE¼NE¼, E½SE¼
Section 32: W½W½, NE¼NW¼
Section 34: E½NW¼, NE¼SW¼, E½
Section 35: All
TOWNSHIP 44 NORTH, RANGE 69 WEST, 6TH P.M.
Section 7: SW¼SW¼, E½SW¼, S½NE¼, SE¼
Section 18: E½, E½NW¼, PARTIAL SW¼, SW¼NW¼, NW¼NW¼
Section 19: SW¼, E½NE¼NW¼, N½NE¼, N½SE¼, SW¼SE¼
Section 20: S½N½, SW¼
Section 21: SE¼SW¼
Section 28: NW¼NW¼
Section 29: N½NE¼
Section 30: W½W½, E½W½
Section 31: W½W½, E½W½, W½SE¼
TOWNSHIP 44 NORTH, RANGE 70 WEST, 6TH P.M.
Section 1: NE¼NE¼, N½NW¼, S½NE¼, W½SE¼, NW¼SE¼
Section 2: N½N½, SW¼NE¼, S½NW¼, SW¼, W½SE¼
Section 3: NE¼NE¼, SE¼NE¼, SE¼SE¼
Section 4: W½SE¼, W½SW¼, SE¼SW¼, SW¼NW¼,
Section 5: N½N½, S½N½, S½ (all)
Section 6: N½NE¼, NE¼NW¼, S½NE¼, SE¼, E½SW¼, SE¼NW¼
Section 7: All
Section 8: All
Section 9: W½, W½E½, SE¼NE¼, E½SE¼
Section 10: W½SW¼, E½W½, E½
Section 11:W½, W½E½, SE¼NE¼, E½SE¼
Section 12:S½N½, NE¼NE¼, S½
Section 13: NW¼, W½NE¼, SW¼SW¼, N½SE¼,
PARTIAL E½NE¼, NW¼SW¼, E½SW¼, S½SE¼
Section 14: W½, W½E½, E½NE¼, SE¼SE¼,
PARTIAL NE¼SE¼
Section 15: All
Section 17: All
Section 18: W½W½, E½W½
Section 21: All
Section 22: E½W½, NW¼NW¼, SW¼SW¼, E½
Section 23: All
Section 24: S½N½, N½S½, S½SW¼, SE¼SE¼,
PARTIAL N½NE¼
Section 25: E½E½
TOWNSHIP 43 NORTH, RANGE 69 WEST, 6TH P.M.
Section 5: SW¼NW¼, SW¼
Section 6: N½N½, SW¼NW¼, NW¼SW¼, SE¼NW¼, E½SW¼, S½NE¼, SE¼




Section 7: NE¼
Section 8: N½NW¼, SW¼NW¼
TOWNSHIP 43 NORTH, RANGE 70 WEST, 6TH P.M.
Section 1: NE¼NE¼
TOWNSHIP 46 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 31: W½W½, E½W½
Together with all of Grantors’ interest in the minerals thereunder, all improvements situated thereon, and all water, water rights, ditch and ditch rights, and rights pertaining thereto, subject to all highways, right of ways, easements, leases, covenants, conditions, and prior reservations, including reservation of minerals, and all oil and gas leases now of record.
ALL EQUIPMENT AND OTHER PERSONAL PROPERTY RELATED TO, OR SITUATED ON, THE REAL PROPERTY DESCRIBED ABOVE, WHICH IS PLEDGED TO THE STATE OF WYOMING (OR ANY GOVERNMENTAL AGENCY THEREOF).






Mineral Acres: Black Thunder Ranch
TOWNSHIP 42 NORTH, RANGE 67 WEST, 6TH P.M. (Weston County)
Section 2: N½NW¼
Section 5: N½NE¼, NW ¼ NW ¼, SW¼NE¼, S½NW¼
Section 6: N½NW¼, SE¼NE¼, E ½ NW ¼
Section 17: N½
Section 18: W½
TOWNSHIP 42 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 2: N½NW¼, NW¼NE¼
Section 3: N½N½
TOWNSHIP 43 NORTH, RANGE 67 WEST, 6TH P.M. (Weston County)
Section 18: NW¼NW¼, SW¼SE¼, SE¼SW¼
Section 19: E½E½, NW¼NE¼
Section 34: N½NW¼, W½NE¼, SE¼SE¼ Section 35: SW¼SW¼
TOWNSHIP 43 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 2: SW¼, SW¼SE¼
Section 3: SW¼NW¼
Section 4: N½NE¼, SE¼NE¼, S½SE¼
Section 5: NE¼, SE¼
Section 6: NE¼, SE¼
Section 8: W½
Section 9: NE¼, N½SE¼
Section 11: S½NW¼, NW¼NW¼, E½SE¼
Section 31: W½NE¼, E ½ NW ¼, SE¼NW¼
Section 33: NE¼, NE¼SE¼
Section 34: NE¼, W½NW¼, N½S½, SW¼SW¼
Section 35: E½
TOWNSHIP 43 NORTH, RANGE 69 WEST, 6TH P.M. (Campbell County)
Section 6: NW¼SW¼
Section 20: SW¼NE¼
Section 27: NE¼, NE¼NW¼, N½SE¼, SE¼SE¼
TOWNSHIP 43 NORTH, RANGE 70 WEST, 6TH P.M. (Campbell County)
Section 23: NW¼SE¼
TOWNSHIP 44 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)




Section 3: NW¼, N½SW¼, SE¼SW¼
Section 4: NE¼SE¼
Section 5: NW¼NW¼, SW¼NW¼
Section 6: NE¼NE¼, SE¼NE¼, N½SE¼
Section 7: SE¼
Section 18: W½
Section 19: E½SW¼, W½SE¼, SE¼SE¼
Section 29: W½E½, N½NW¼, NE¼SW¼, S½SW¼
Section 30: W½E½, SE¼NE¼, E½NW¼, NE¼SW¼, E½SE¼
Section 31: S½
Section 33: SW¼NE¼, S½NW¼, N½SW¼, W½SE¼
TOWNSHIP 42 NORTH, RANGE 70 WEST, 6TH P.M. (Campbell County)
Section 2: W½
TOWNSHIP 44 NORTH, RANGE 69 WEST, 6TH P.M. (Campbell County)
Section 2: W½W½, SE¼SW¼, SW¼SE¼
Section 7: SW¼SW¼
Section 11: N½NE¼
Section 12: S½NW¼, N½SW¼, W½SE¼, SE¼SE¼
Section 13: N½S½, S½NE¼, NE¼NE¼
Section 14: E½SE¼
Section 18: NW¼, SW¼SW¼, SW¼SE¼
Section 19: N½N½
Section 21: NE¼, NE¼NW¼, NE¼SW¼, N½SE¼
Section 24: W½NE¼, NW¼, NE¼SW¼, NW¼SE¼
Section 25: SE¼NW¼, SW¼, W½SE¼, SE¼SE ¼
Section 26: E½NW¼, N½SW¼, S½SE¼, NW¼SE¼
Section 27: N½SE¼, NE¼SW¼
Section 31: NE¼SE¼ Section 35: NE¼NE ¼
TOWNSHIP 44 NORTH, RANGE 70 WEST, 6TH P.M. (Campbell County)
Section 2: N½SW¼, SW¼SW¼, W½SE¼
Section 4: NE¼NE¼, NW¼NW¼
Section 7: S½
Section 8: W½
Section 9: SE¼
Section 10: S½S½, NW¼SE¼
Section 11: N½NW¼, NW¼NE¼
Section 12: W½SE¼, SW¼NE¼, SE¼SE¼
Section 13: S½S½, NW¼SW¼
Section 14: SW¼NE¼, NW¼, SW¼SW¼, N½SE¼
Section 15: NE¼, N½SE¼, SE¼SE¼
Section 21: W½NE¼, W½
Section 22: SW¼SW¼
Section 23: SE¼NW¼




Section 24: N½NE¼, N½NW¼
Section 27: NW¼NW¼
Section 34: SW¼NW¼, N½SW¼
TOWNSHIP 45 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 2: S½N½
Section 6: E½SW¼, W½SE¼, NE¼NW¼
Section 7: W½NE¼, E½NW¼
Section 10: N½SE¼
Section 11: N½SW¼
Section 19: E½NE¼, NE¼SE¼
Section 20: NW¼SW¼
Section 29: W½SW¼
Section 30: W½W½
Section 32: W½W½, E½SW¼, N½SE¼
TOWNSHIP 45 NORTH, RANGE 69 WEST, 6TH P.M. (Campbell County)
Section 2: N½NW¼, E½SW¼, SE¼
Section 3: NE¼NE¼, SE¼NE¼
Section 5: SE¼SE¼
Section 8: S½NE¼, NE¼NE¼
Section 9: N½
Section 10: N½N½, SE¼NE¼
Section 11: N½NE¼
Section 12: SW¼SE¼
Section 13: NE¼NE¼, W½E½, E½SE¼
Section 15: SW¼
Section 18: SW ¼ NW ¼, SW ¼
Section 19: W½
Section 21: E½, E½W½
Section 22: N½, N½SW¼
Section 23: SE¼
Section 24: N½NE¼, W½SW¼
Section 25: E½E½, N½NW¼, SW¼
Section 26: N½NE¼, SE¼
Section 27: S½SE¼, NW¼SE¼
Section 28: NE¼NE¼
Section 34: E½NE¼, NE¼SE¼
Section 35: W½SW¼
TOWNSHIP 45 NORTH, RANGE 70 WEST, 6TH P.M. (Campbell County)
Section 12: E½
Section 13: E½NE¼, NE¼SE¼
Section 24: S½
Section 25: All




Section 26: N½, N½SW¼, E½SE¼
Section 33: SW¼SW¼
TOWNSHIP 46 NORTH, RANGE 67 WEST, 6TH P.M. (Weston County)
Section 19: W½NW¼, SW¼SW¼, SE¼NW¼, E½SW¼, W½SE¼
Section 30: NW¼NW¼, W½NE¼, E½NW¼
TOWNSHIP 46 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 10: S½SW¼, SW¼SE¼
Section 11: NW¼
Section 13: SE¼SE¼, SW¼SW¼
Section 14: SE¼
Section 15: SE¼NE¼, W½NE¼, W½
Section 17: SW¼
Section 21: E½NE¼
Section 22: W½NW¼
Section 23: E½E½
Section 24: E½NE¼, SW¼NE¼, E½W½, W½SE¼, SW¼SW¼
Section 25: W½NE¼, NW¼, W½SW¼
Section 26: E½NE¼
TOWNSHIP 46 NORTH, RANGE 69 WEST, 6TH P.M. (Campbell County)
Section 29: W½
Section 31: W½
TOWNSHIP 49 NORTH, RANGE 68 WEST, 6TH P.M. (Crook County)
Section 2: SW¼NW¼, SW¼, W½SE¼
Section 3: S½NE¼, E½SE¼
Section 9: S½SE¼
Section 10: E½NE¼, S½SW¼, SW¼SE¼
Section 11: W½W½
Section 15: N½NE¼, SW¼NE¼, NE¼NW¼
TOWNSHIP 42 NORTH, RANGE 67 WEST, 6TH P.M. (Weston County)
Section 4: W½SW¼, SW¼NW¼
Section 9: NW¼NW¼
TOWNSHIP 42 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 5: N½
Section 6: S½
TOWNSHIP 43 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)




Section 24: W½
Section 26: S½
TOWNSHIP 43 NORTH, RANGE 69 WEST, 6TH P.M. (Campbell County)
Section 2: SE¼NW¼, N½SW¼, SW¼SW¼
Section 3: S½SE¼, SE¼SW¼
Section 7: SE¼
Section 8: N½NE¼, SW¼
Section 9: N½N½, S½NE¼
Section 10: NE¼NW¼
TOWNSHIP 44 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 5: E½
Section 8: E½
Section 19: N½
Section 23: SE¼
Section 26: NE¼
Section 34: S½NE¼, NE¼NE¼, NE¼SE¼
Section 35: W½W½
TOWNSHIP 44 NORTH, RANGE 70 WEST, 6TH P.M. (Campbell County)
Section 4: SW¼NW¼
Section 5: N½N½, SE¼NE¼, SW¼NW¼, NE¼SW¼, N½SE¼
Section 6: NE¼NE¼, SE¼NE ¼
Section 7: N½
Section 12: SW¼NE¼
Section 15: SW¼SE¼
Section 17: W½
Section 22: N½N½, SW¼NE¼, SE¼NW¼, NE¼SW¼
TOWNSHIP 45 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 7: SE¼SE¼
Section 17: NW¼, N½SW¼
Section 18: SW¼SW¼, NE¼NE¼
Section 19: NW¼NW¼
Section 34: W½E½
TOWNSHIP 45 NORTH, RANGE 70 WEST, 6TH P.M. (Campbell County)
Section 1: E½, N½SW¼
Section 2: SW¼NE¼
Section 31: E½SE¼
Section 32: W½SW¼
TOWNSHIP 42 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)




Section 4: NE¼NW¼, N½NE¼, SE¼NE¼
TOWNSHIP 43 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 31: NE¼SE¼ Section 32: N½S½, S½SE¼
Section 33: SW¼SW¼
TOWNSHIP 45 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 14: S½
Section 23: N½
Section 29: SW¼NE¼, E½SW¼, W½SE¼, SE¼SE¼
Section 32: NE¼, E½NW¼
Belle Ayr Ranch
Property lying West of Hwy 59 is more particularly described as follows:
Beginning at the SW corner of Section 7, Township 48 North, Range 71 West, 6th P.M., thence S
00°15'37" E a distance of 1323.29'; thence S
00°15'38" E a distance of 1249.45'; thence S
86°05'53" W a distance of 1378.42'; thence S
12°06'30" W a distance of 1317.09'; thence N
89°55'41" W a distance of 1090.31'; thence S
00°37'29" W a distance of 1278.26'; thence S
89°54'24" W a distance of 1325.74'; thence S
00°22'06" E a distance of 1340.54'; thence S
89°52'55" E a distance of 1320.80'; thence S
00°33'44" E a distance of 2271.11'; thence S
12°46'37" W a distance of 3198.74'; thence S
89°59'38" W a distance of 616.48'; thence S
00°35'18" W a distance of 1319.09'; thence N
89°35'11" E a distance of 382.67'; thence S
08°58'18" W a distance of 2704.89'; thence N
89°43'46" W a distance of 1299.55'; thence S
00°44'29" W a distance of 1288.35'; thence S
00°34'53" W a distance of 3936.69'; thence S
00°09'07" W a distance of 4400.90'; thence S
00°22'09" W a distance of 2237.02'; thence S
89°14'28" E a distance of 1315.92'; thence S
01°21'42" E a distance of 1329.56'; thence S
89°48'40" E a distance of 1317.53'; thence S
00°32'26" W a distance of 1343.72'; thence N
89°17'43" E a distance of 2625.65'; thence N
01°32'17" E a distance of 1321.09'; thence N
89°51'22" E a distance of 2626.49'; thence S
00°06'10" E a distance of 1324.19'; thence S
00°06'09" E a distance of 1325.01'; thence S
89°34'49" W a distance of 1382.17'; thence S




89°35'05" W a distance of 1257.48'; thence N
85°44'11" W a distance of 991.87'; thence N
89°53'45" W a distance of 340.30'; thence N
89°53'44" W a distance of 415.96'; thence N
89°52'19" W a distance of 383.48'; thence N
89°51'38" W a distance of 390.75'; thence N
89°51'34" W a distance of 138.53'; thence N
89°51'32" W a distance of 341.39'; thence N
89°56'06" W a distance of 317.30'; thence N
89°56'56" W a distance of 376.51'; thence S
84°17'29" W a distance of 44.63'; thence S
87°02'57" W a distance of 51.34'; thence S
89°30'16" W a distance of 34.11'; thence N
89°16'44" W a distance of 8.13'; thence N
88°27'53" W a distance of 23.82'; thence N
86°16'52" W a distance of 50.87'; thence N
83°18'22" W a distance of 50.87'; thence N
80°57'32" W a distance of 29.37'; thence N
79°57'24" W a distance of 9.90'; thence N
78°11'47" W a distance of 51.51'; thence N
75°14'45" W a distance of 51.51'; thence N
72°17'42" W a distance of 51.51'; thence N
69°20'40" W a distance of 51.51'; thence N
66°23'36" W a distance of 51.51'; thence N
63°26'33" W a distance of 51.51'; thence N
60°29'31" W a distance of 51.51'; thence N
57°32'27" W a distance of 51.51'; thence N
55°57'46" W a distance of 3.53'; thence N
59°18'57" W a distance of 231.25'; thence N
56°53'17" W a distance of 70.35'; thence N
58°43'00" W a distance of 78.19'; thence N
60°38'30" W a distance of 78.19'; thence N
62°34'01" W a distance of 78.19'; thence N
64°29'31" W a distance of 78.19'; thence N
66°25'01" W a distance of 78.19'; thence N
68°05'34" W a distance of 57.92'; thence N
82°42'06" W a distance of 125.97'; thence N
89°49'59" W a distance of 126.58'; thence N
89°50'30" W a distance of 26.66'; thence N
89°49'55" W a distance of 25.13'; thence N
89°49'52" W a distance of 100.00'; thence S
00°10'07" W a distance of 614.27'; thence S
00°08'24" W a distance of 1.61'; thence S
00°10'06" W a distance of 493.38'; thence S
00°02'54" E a distance of 834.52'; thence S
00°01'36" E a distance of 1329.40'; thence N
89°49'26" W a distance of 1204.71'; thence N
89°50'13" W a distance of 1335.06'; thence N
89°50'12" W a distance of 1345.38'; thence N




89°50'14" W a distance of 1345.38'; thence N
89°59'41" W a distance of 1312.35'; thence N
89°59'39" W a distance of 1312.35'; thence N
89°59'40" W a distance of 1320.87'; thence N
89°59'41" W a distance of 1320.86'; thence N
00°21'26" E a distance of 1329.53'; thence N
00°15'12" E a distance of 1330.11'; thence N
00°02'45" W a distance of 1340.65'; thence N
00°00'52" W a distance of 1340.64'; thence N
89°58'10" E a distance of 1319.38'; thence N
00°17'41" E a distance of 1330.51'; thence S
89°50'16" W a distance of 1318.59'; thence N
00°19'55" E a distance of 72.12'; thence N
00°19'47" E a distance of 1254.36'; thence N
89°43'12" W a distance of 1332.35'; thence N
89°45'34" W a distance of 1331.61'; thence N
89°42'45" W a distance of 1332.34'; thence N
89°45'08" W a distance of 1332.35'; thence N
89°37'07" W a distance of 1336.73'; thence S
00°05'49" W a distance of 1342.67'; thence N
89°31'41" W a distance of 1334.64'; thence N
00°01'28" W a distance of 1339.65'; thence S
89°59'54" W a distance of 1339.66'; thence N
89°59'54" W a distance of 1338.93'; thence N
89°44'04" W a distance of 1499.54'; thence N
89°41'31" W a distance of 1498.80'; thence S
87°36'16" W a distance of 1500.43'; thence S
00°24'57" W a distance of 1345.84'; thence S
00°27'17" W a distance of 1347.47'; thence S
88°55'28" W a distance of 1397.71'; thence N
00°31'45" E a distance of 1331.84'; thence N
00°31'44" E a distance of 1331.84'; thence N
00°26'10" E a distance of 1330.85'; thence N
00°26'10" E a distance of 1330.84'; thence N
00°30'27" E a distance of 1328.84'; thence N
00°30'28" E a distance of 1328.85'; thence N
00°33'39" E a distance of 1322.24'; thence N
00°33'40" E a distance of 1322.24'; thence N
00°41'40" E a distance of 1326.87'; thence N
00°41'40" E a distance of 1326.86'; thence N
88°48'35" E a distance of 1536.01'; thence N
88°48'21" E a distance of 1696.34'; thence S
00°30'11" W a distance of 1358.47'; thence S
89°31'05" E a distance of 1322.27'; thence S
89°31'05" E a distance of 1322.27'; thence N
89°44'39" E a distance of 1333.58'; thence N
89°44'37" E a distance of 1333.58'; thence N
89°58'53" E a distance of 1333.35'; thence N
89°58'54" E a distance of 1333.34'; thence N




00°28'13" E a distance of 1317.32'; thence N
00°16'20" E a distance of 1325.86'; thence N
89°46'22" W a distance of 1331.68'; thence N
89°46'20" W a distance of 1331.67'; thence S
89°59'22" W a distance of 1332.19'; thence S
89°59'22" W a distance of 1332.20'; thence N
00°13'09" E a distance of 1333.05'; thence N
00°13'08" E a distance of 1333.07'; thence N
00°13'10" E a distance of 1333.07'; thence N
00°39'51" E a distance of 1333.10'; thence N
00°39'51" E a distance of 1333.11'; thence S
89°47'15" E a distance of 1332.18'; thence N
00°38'14" E a distance of 1334.65'; thence N
00°38'13" E a distance of 1334.60'; thence S
89°55'18" E a distance of 1330.94'; thence S
89°55'31" E a distance of 1330.93'; thence S
89°55'44" E a distance of 1330.94'; thence N
88°42'35" E a distance of 1322.30'; thence N
88°42'22" E a distance of 1322.30'; thence N
88°42'19" E a distance of 1322.27'; thence N
88°42'05" E a distance of 1322.27'; thence S
86°47'01" E a distance of 1328.52'; thence N
00°55'33" E a distance of 1339.11'; thence N
88°04'09" W a distance of 1328.44'; thence N
00°53'31" E a distance of 1309.32'; thence N
00°53'54" E a distance of 1309.31'; thence S
88°55'24" E a distance of 1329.70'; thence S
88°55'25" E a distance of 1329.70'; thence N
89°57'44" E a distance of 1315.42'; thence N
89°57'45" E a distance of 1315.42'; thence S
00°43'50" W a distance of 4008.96'; thence S
89°17'41" E a distance of 1330.78'; thence N
00°39'28" E a distance of 4006.37'; thence N
89°10'59" W a distance of 1325.68'; thence N
01°18'52" E a distance of 1320.98'; thence S
89°16'47" W a distance of 1319.89'; thence N
00°10'17" W a distance of 1334.39'; thence S
89°51'35" W a distance of 1322.28'; thence N
00°16'33" W a distance of 1347.69'; thence N
00°16'31" W a distance of 1321.89'; thence S
89°32'46" E a distance of 1327.24'; thence N
00°10'13" W a distance of 1321.42'; thence S
89°31'48" E a distance of 1329.67'; thence S
89°38'54" E a distance of 1317.54'; thence S
89°39'06" E a distance of 1317.54'; thence S
89°52'19" E a distance of 1317.54'; thence S
89°52'33" E a distance of 1317.54'; thence S
89°48'02" E a distance of 1326.42'; thence S
89°48'16" E a distance of 1326.43'; thence S




88°53'26" E a distance of 1326.76'; thence S
00°12'36" E a distance of 1330.68'; thence S
00°12'36" E a distance of 1330.71'; thence S
00°12'37" E a distance of 1325.48'; thence S
00°12'37" E a distance of 1325.53'; thence S
89°41'43" E a distance of 244.55'; thence S
89°43'11" E a distance of 100.47'; thence S
89°43'15" E a distance of 50.40'; thence N
07°58'59" E a distance of 588.53'; thence N
07°59'02" E a distance of 748.08'; thence S
89°37'49" E a distance of 548.55'; thence S
00°14'55" E a distance of 740.83'; thence S
00°15'00" E a distance of 582.95'; thence S
89°41'50" E a distance of 196.09';
which is the point at the beginning, having an area of 17114.300 acres more or less.
Bone Pile Hay Field
Starting at the SW corner of Section 9, Township 48 North, Range 72 West, 6th P.M., thence N
89°09'27" W a distance of 2655.00'; this being the point of the beginning; thence S
00°13'37" W a distance of 1335.23'; thence S
00°13'38" W a distance of 1335.22'; thence S
00°13'36" W a distance of 1327.91'; thence N
89°48'52" W a distance of 1331.41'; thence N
00°12'23" E a distance of 1330.34'; thence N
89°42'34" W a distance of 1331.89'; thence N
00°10'31" E a distance of 1332.80'; thence N
89°56'38" W a distance of 1330.38'; thence N
00°10'30" E a distance of 1352.10'; thence N
00°08'14" E a distance of 1306.04'; thence N
89°58'54" W a distance of 1329.15'; thence N
00°11'30" E a distance of 1285.77'; thence N
89°08'45" E a distance of 1328.12'; thence N
89°08'46" E a distance of 1328.11'; thence S
89°42'07" E a distance of 1335.33'; thence S
00°07'57" W a distance of 1324.91'; thence S
89°45'28" E a distance of 1334.21'; thence S
00°10'50" W a distance of 1323.60'; which is the point at the beginning, having an area of 486.400 acres more or less.
Together with all of Grantors’ interest in the minerals thereunder, all improvements situated thereon, and all water, water rights, ditch and ditch rights, and rights pertaining thereto, subject to all highways, right of ways, easements, leases, covenants, conditions, and prior reservations, including reservation of minerals, and all oil and gas leases now of record.




ALL EQUIPMENT AND OTHER PERSONAL PROPERTY RELATED TO, OR SITUATED ON, THE REAL PROPERTY DESCRIBED ABOVE, WHICH IS PLEDGED TO THE STATE OF WYOMING (OR ANY GOVERNMENTAL AGENCY THEREOF).





Crook County, Wyoming
Surface Land:
TOWNSHIP 50 NORTH, RANGE 66 WEST 6TH P.M.
Section 4: NW¼NW¼ (Bucks SUBD, BLK 2, Lots 25 and 26)
Together with all of Grantors’ interest in the minerals thereunder, all improvements situated thereon, and all water, water rights, ditch and ditch rights, and rights pertaining thereto, subject to all highways, right of ways, easements, leases, covenants, conditions, and prior reservations, including reservation of minerals, and all oil and gas leases now of record.
ALL EQUIPMENT AND OTHER PERSONAL PROPERTY RELATED TO, OR SITUATED ON, THE REAL PROPERTY DESCRIBED ABOVE, WHICH IS PLEDGED TO THE STATE OF WYOMING (OR ANY GOVERNMENTAL AGENCY THEREOF).






Schedule 1.01(d)
Reserve Areas
See attached.



    


Contura Owned Surface Tracts used for Proposed
Freeport Mine Surface Development
Parcel ID
Surface Owner
15-01-105
Contura PA Land, LLC
15-01-107
Contura PA Land, LLC
15-01-108
Contura PA Land, LLC
15-01-120
Contura PA Land, LLC
15-01-121
Contura PA Land, LLC
15-01-124
Contura PA Land, LLC
15-01-125
Contura PA Land, LLC
15-01-128A
Contura PA Land, LLC
15-01-130A
Contura PA Land, LLC
15-01-131
Contura PA Land, LLC
15-01-135
Contura PA Land, LLC
15-01-135A
Contura PA Land, LLC
15-01-136
Contura PA Land, LLC
15-01-145
Contura PA Land, LLC
15-01-145A
Contura PA Land, LLC
15-01-146
Contura PA Land, LLC
15-01-147
Contura PA Land, LLC
15-01-148
Contura PA Land, LLC
15-01-150A
Contura PA Land, LLC
15-01-152
Contura PA Land, LLC
15-01-153
Contura PA Land, LLC
15-01-154
Contura PA Land, LLC
15-01-157
Contura PA Land, LLC
17-06-122
Contura PA Land, LLC
17-06-123
Contura PA Land, LLC
17-06-123A
Contura PA Land, LLC
17-06-125
Contura PA Land, LLC
17-06-126
Contura PA Land, LLC
17-06-131
Contura PA Land, LLC
17-06-141
Contura PA Land, LLC
17-06-142
Contura PA Land, LLC
17-08-400A
Contura PA Land, LLC


    




Contura Leased Surface
Tracts used for Proposed
Freeport Mine Surface
Development
Those leased tracts described in
that Assignmnet of Leases and
Other Agreements effective July
26, 2016, by and between Alpha
Natural Resources, Inc. and
Contura Freeport, LLC of record
in OR Book 492, page 3079,
Greene County, Pennsylvania.


Contura Owned Coal
Tracts included in
Proposed Freeport Mine
That coal contained in the Deed
of Conveyance date July 26, 2016 from Alpha Natural Resources, Inc. to Contura Pennsylvania Land, LLC of record in Book 492, page 2955, Greene County, Pennsylvania.
 
That coal contained in the Deed
of Conveyance date July 26, 2016 from Alpha Natural Resources, Inc. to Contura Pennsylvania Land, LLC being Instrument No 201618557, Washington County, Pennsylvania.












Contura Owned Surface Tracts used for Proposed Sewickley Mine Surface Development
Parcel ID
Surface Owner
03-04-115
Contura PA Land, LLC
03-04-115A
Contura PA Land, LLC
03-04-115B
Contura PA Land, LLC
03-04-116
Contura PA Land, LLC
03-04-117
Contura PA Land, LLC
03-04-117A
Contura PA Land, LLC
03-04-118
Contura PA Land, LLC
03-04-124
Contura PA Land, LLC
03-04-124A
Contura PA Land, LLC
03-04-125
Contura PA Land, LLC
03-04-125A
Contura PA Land, LLC
03-04-125B
Contura PA Land, LLC
03-05-100
Contura PA Land, LLC
03-05-101
Contura PA Land, LLC
03-05-102
Contura PA Land, LLC
03-05-103
Contura PA Land, LLC
03-05-104
Contura PA Land, LLC
03-05-105
Contura PA Land, LLC
03-05-106
Contura PA Land, LLC
03-05-107
Contura PA Land, LLC
03-05-110
Contura PA Land, LLC
03-05-111
Contura PA Land, LLC
03-05-111A
Contura PA Land, LLC
03-05-111C
Contura PA Land, LLC
03-05-114
Contura PA Land, LLC
03-05-202
Contura PA Land, LLC
03-05-300
Contura PA Land, LLC
03-05-301
Contura PA Land, LLC
03-05-302
Contura PA Land, LLC
03-05-303
Contura PA Land, LLC
03-05-304
Contura PA Land, LLC
03-05-305
Contura PA Land, LLC
03-05-306
Contura PA Land, LLC
03-05-307
Contura PA Land, LLC
03-05-308
Contura PA Land, LLC
03-05-309
Contura PA Land, LLC
13-01-126
Contura PA Land, LLC






Contura Owned and Leased Coal for Proposed Sewickley Mine Development
The Sewickley seam of coal conveyed by CNG Coal Company to Cyprus Consolidated Resources Corporation (name changed to Alpha Coal Resources, LLC) by that Indenture dated July 2, 1996 of record in Book 0158, Page 0259 in Greene County, Pennsylvania; and being a portion of the property conveyed from Alpha Natural Resources, Inc to Contura Coal Resources, LLC by that Deed dated July 22, 2016 of record in OR Book 492, Page 2885-2892 and being Instrument No 2016-00004552 in Greene County, Pennsylvania.
 
The portion of that Coal Lease Agreement from Talen Generation, LLC (formerly known as PPL Generation, LLC, parent of Realty Company of Pennsylvania, successor in interest to Greene Manor Coal Company), to Pennsylvania Land Holdings Company, dated December 4, 1980, as assigned from Alpha Natural Resources, Inc to Contura Pennsylvania Land, LLC, by t hat Assignment of Leases and Other Agreements dated July 22, 2016 of record in OR Book 492, pages 3036 -3052, Greene County, Pennsylvania. (the "Greene Manor Lease") that leases the Sewlickley seam of coal.







UNDEVELOPED RESERVES - VA AND WV
DEEP MINES
Location
TRAX #
Leased/Owned or
other
Surface/Coal
Lessee/Grantee
Lessor/Grantor
Book/Page
Date
Tax Map/
Account #
Description
Stonecoal - Aily (Aily)
Stonecoal Creek of Dumps Creek, Russell County, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
579/619
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surface or deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
 
 
 
 
 
 
 
 
 
 
 
Cabin Ridge (Lower Banner)
Dickenson County, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
385/650
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
 
 
 
 
 
 
 
 
 
 
 
Tom's Creek North (Lower Banner)
Tom's Creek, Coeburn in Wise County, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
Inst # 200301638
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
 
 
 
 
 
 
 
 
 
 
 
Tom's Creek South (Lower Banner)
Tom's Creek, Coeburn in Wise County, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
Inst # 200301638
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
 
 
 
 
 
 
 
 
 
 
 
DM #42 (Jawbone)
Middle Fork of Open Fork, near Nora, Dickenson County, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
385/650
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
PAR-00396
Leased
Surface
Paramont Contura, LLC
Dickenson County School Board
526/684
5/15/2015
N/A
Surface Rights Agreement for ground-water monitoring well at Ervinton HS.
PAR-00397
Owned
Surface
Paramont Contura, LLC
Dewey French
529/110
09/15/2015
4630
Deed for 0.21 ac. tract of land situated in Dickenson County, VA, together with all improvements thereon and all appurtenances thereto belonging.
PAR-00401
Owned
Surface
Paramont Contura, LLC
Glenn E. Teasley, et al
529/499
10/06/2015
4021
Deed for 50 ac. tract of situated in Dickenson County, VA, together with all improvements thereon and all appurtenances thereto belonging.
NONE
Owned
Surface
Paramont Contura, LLC
Scott Mullins and Suzan Moore
Unrecorded
N/A
5243
Unrecorded deed for 3.65 ac. tract of situated in Dickenson County, VA,together with all improvements thereon and all appurtenances thereto belonging.
PAR-00442
Option to Purchase
Surface
Paramont Contura, LLC
Heartwood Forestland Fund IV Limited Partnership
160001429
10/10/2016
 
Option Agreement to purchase a 100% interest in and to certain realproperty, as depicted on Exhibit A, together with all appurtenant rights associated therewith and improvements located thereon, land situated in Dickenson County, VA.
 
 
 
 
 
 
 
 
 
 
 
Rolling Thunder (Peerless)
Twentymile Creek of Gauley River, Jefferson District of Nicholas County, WV
CCL-10068
Leased
Surface & Coal
Contura CAPP Land, LLC
WPP LLC
Unrecorded
07/01/2005
N/A
Coal Lease for former between Dingess-Rum Properties, Inc., on 2,484 ac tract.
CCL-10073
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
Unrecorded
05/12/1999
N/A
Sublease Agreement between Ark Land Company, now held by ACIN LLC, Sublessor, and Chicopee Coal Company, Inc. (subsequently assigned to Contura Capp Land, LLC), Sublessee, for Amherst Property.
CCL-10074
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
67/654
05/12/1999
N/A
Sublease Agreement between Ark Land Company, now with ACIN, LLC,Sublessor, and Chicopee Coal Company, Inc., assigned to Belle Coal Company, Inc., then assigned to Boone East Development Company, subsequently assigned to Contura CAPP Land, LLC, Sublessee, for Wriston Property.

    


SURFACE MINES
Location
TRAX #
Leased/
Owned or other
Surface/Coal
Lessee/Grantee
Lessor/Grantor
Book/Page
Date
Tax Map/Account #
Description
Kiwanis Park (Clintwood, Blair,& Eagle)
 
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
385/650
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
CCL-01000
Leased
Surface
Contura CAPP Land, LLC
Cox, Clara
475/804
3/22/2010/
7380
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01001
Leased
Surface
Contura CAPP Land, LLC
Fields, Stoney F. & Eurabell
475/800
3/22/2010
7036
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01002
Leased
Surface
Contura CAPP Land, LLC
Hall, Ray Wayne
476/796
3/19/2010
7214
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01006
Leased
Surface
Contura CAPP Land, LLC
Hay, R. Charles & Linda L.
476/152
03/24/2010
18997
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01007
Leased
Surface
Contura CAPP Land, LLC
Kiwanis Club of Haysi, Inc.
476/156
3/26/2010
17635
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01010
Leased
Surface
Contura CAPP Land, LLC
Mullins, Chris & Rebecca
476/690
4/22/2010
8456;22519
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01163
Leased
Surface
Contura CAPP Land, LLC
J.D. & Sandra Bailey, (Ray Hall)
502/578
11/09/2012
7205
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01024
Leased
Surface
Contura CAPP Land, LLC
Bailey, Edith
477/775
6/8/2010
6497;6491
Surface Rights Agreement granting right to mine in Dickenson County, VA.
 
 
 
 
 
 
 
 
 
 
 
Doe Branch (Eagle-Blair)
Doe Branch of Russell-Prater Creek, Dickenson County
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
385/650
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
 
 
 
 
 
 
 
 
 
 
 
Long Branch HWM/Wampler Ridge Surface (Upper & Lower Banner)
Dickenson County, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
385/650
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
CCL-01151
Leased
Surface
Contura CAPP Land, LLC
French, David F. & Jeanette et al
500/596
6/1/2012
2489;20057;20058;20059; 20060
Surface Rights Agreement granting right to mine in Dickenson County, VA.
CCL-01169
Leased
Surface
Contura CAPP Land, LLC
Columbus Phipps Foundation
504/71
1/1/2013
3142
Surface Rights Agreement granting right to mine on 1/3rd int in 30 ac inDickenson County, VA.
CCL-01170
Leased
Coal
Contura CAPP Land, LLC
Columbus Phipps Foundation
504/76
1/1/2013
3141, 11659
Lease Agreement granting right to mine the Lower Banner seam and above.
CCL-01194
Leased
Surface
Contura CAPP Land, LLC
Rasnick, Ruben Wayne & Letici
515/184
3/25/2014
5719
Surface Rights Agreement granting right to mine in Dickenson County, VA.
PAR-00363
Owned
Surface
Paramont Contura, LLC
Eva Mae Adkins
502/652
12/27/2012
3142
Deed for 2/3rds interest in the surface only of a 30 ac. tract of land situatedin Dickenson County, VA.
PAR-00363
Owned
Surface
Paramont Contura, LLC
Eva Adkins, aka Eva Mae MullinsAdkins, widow
502/652
12/27/2012
3137
Deed for the surface only of a 32 ac. tract of land situated in DickensonCounty, VA.
PAR-00375
Owned
Surface
Paramont Contura, LLC
Matthew Deel and Sherry M. Deel,husband and wife,
509/170
07/18/2013
25516
Deed for the surface only of a 10.8 ac. tract of land situated in DickensonCounty, VA.
 
 
 
 
 
 
 
 
 
 
 
Three-Forks II (Tiller - Upper Banner)
Dickenson County, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
385/650
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.
 
 
 
 
 
 
 
 
 
 
 




Copperhead Gap (Aily - Upper Banner)
Buchanan, VA
CCL-00023
Leased
Surface & Coal
Contura CAPP Land, LLC
ACIN LLC
Inst # 030001352
04/01/2003
N/A
Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.






Schedule 2.01
Commitments and L/C Sublimit
Lender
Commitment
L/C Sublimit
Citibank, N.A.
$30,000,000
$30,000,000
Credit Suisse AG, Cayman Islands Branch
$25,000,000
$25,000,000
BMO Harris Bank N.A.
$25,000,000
$25,000,000
Jefferies Finance LLC
$15,000,000
N/A
UBS AG, Stamford Branch
$15,000,000
N/A
Webster Business Credit Corporation
$15,000,000
N/A
Total
$125,000,000
$80,000,000






    


Schedule 5.03
Governmental Approvals
•
Certain consents, authorizations, filings or other actions with or by any Governmental Authority may be required in connection with the exercise of remedies by the Collateral Agent after an Event of Default.



    


Schedule 5.08(b)
Material Owned Real Property
Deed Date
Grantor
DB/PG or
Inst #
Active Location
Facility
TRAX No.
PARAMONT CONTURA, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc.
201603536
Wise County, VA
Toms Creek Preparation Plant and Loadout
PAR-00448
07/26/2016
Alpha Natural Resources, Inc.
201603538
Wise County, VA
Esserville Deep Mine Shop and Facilities (former Maxxim Rebuild, LLC)
PAR - 00422
DICKENSON-RUSSELL CONTURA, LLC
 
 
 
 
07/26/2016
Old ANR, LLC (successor by conversion to Alpha Natural Resources, Inc.) and Contura CAPP Land, LLC
539/402
Dickenson County, VA
McClure Preparation Plant and Loadout
DRC-00185
POWER MOUNTAIN CONTURA, LLC
 
 
 
 
07/22/2016
Alpha Natural Resources, Inc.
500/588
Nicholas County, WV
Power Mountain Preparation Plant and Loadout
Not yet in TRAX
CONTURA ENERGY SERVICES, LLC
 
 
 
 
07/22/2016
Alpha Natural Resources, Inc.
302/09
Boone County, WV
Running Right Leadership Academy
Not yet in TRAX
CONTURA WYOMING LAND, LLC
 
 
 
 
07/22/2016
Alpha Natural Resources, Inc.
 
Campbell County, WY (portion described below) Township 48 North, Range 71 West, 6th P.M. Section 34: E ½ NE
Campbell County, WY (portion described below)
Belle Ayr Load Out
Not yet in TRAX

    


07/22/2016
Alpha Natural Resources, Inc.
 
Township 51 North, Range 72 West, 6th P.M. Section 22: SWNW Section 21: S ½ NE
Eagle Butte Load Out
Not yet in TRAX
CONTURA PENNSYLVANIA TERMINAL, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
3314/2365
Fayette County, PA
LaBelle Dock
Not in TRAX yet
CONTURA COAL RESOURCES, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
492/2885
Greene County, PA
Future reserve area
Not in TRAX yet
EMERALD CONTURA, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
492/3015 1
Greene County, PA
Former Emerald Mine Area
Not in TRAX yet
CUMBERLAND CONTURA, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
492/2994 2
Greene County, PA
Cumberland Mine Area
Not in TRAX yet
CONTURA PENNSYLVANIA LAND, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
492/2955
Greene County, PA
Future Freeport reserve area
Not in TRAX yet
10/31/2016
Old ANR, LLC (f/k/a Alpha Natural Resources, Inc.)
495/3459
Greene County, PA
Deed of Correction
Not in TRAX yet
CONTURA PENNSYLVANIA LAND, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
492/2899 3
Greene County, PA
General Pennsylvania Property
Not in TRAX yet
10/31/2016
Old ANR, LLC (f/k/a Alpha Natural Resources, Inc.
495/3367
Greene County, PA
Deed of Correction
Not in TRAX yet
CONTURA ENERGY SERVICES, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
492/3023
Greene County, PA
Portal Road office area
Not in TRAX yet
CONTURA PENNSYLVANIA LAND, LLC
 
 
 
 
07/26/2016
Alpha Natural Resources, Inc
492/2893
Greene County, PA
Future Freeport reserve area
Not in TRAX yet
1 Less and excepting Parcels 07-06-120, 120A, 120B and 120D that are in the process of being conveyed to third parties.
2 Less and excepting 42 acres of Parcel 29-05-127 and all of Parcel 29-06-127A that are in the process of being conveyed to third parties.
3 Less and excepting Parcels 07-04-128A, 07-04-129 and 07-03-0130 that are in the process of being conveyed to third parties.




Schedule 5.08(c)
Material Leased Real Property
Deed Date
Grantor
Active Location
Notes
CONTURA WYOMING LAND, LLC
 
11/01/2001
United States Department of theInterior, by and through Bureau of Land Management
Campbell County, WY (2666/00177)
Belle Ayr Mine (Lease WYW 161248) TRAX No AWL-00036
04/02/2015
State of Wyoming by and through Board of Land Commissioners
Campbell County, WY (1978/531)
Belle Ayr Mine (Lease 0- 26954A) TRAX No AWL-00149
09/01/1965
United States Department of the Interior, by and through Bureau of Land Management
Campbell County, WY (56/552)
Eagle Butte Mine (WYW 0313733) (AWL-00144)
08/17/1982
United States Department of the Interior, by and through Bureau of Land Management
Campbell County, WY (692/92)
Eagle Butte Mine (WYW 78631) (AWL-00003)
08/01/1995
United States Department of the Interior, by and through Bureau of Land Management
Campbell County, WY (1366/664)
Eagle Butte Mine (WYW 124783) (AWL-00002)
 
 
 
 
05/01/2008
United States Department of the Interior, by and through Bureau of Land Management
Campbell County, WY (2357/182)
Eagle Butte Mine (Lease WYW 155132) (AWL-00006)
CONTURA CAPP LAND, LLC
 
04/01/2003
ACIN LLC
Dickenson County, VA (385/650)
Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)
04/01/2003
ACIN LLC
Russell County VA (579/619)
Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)

    


Deed Date
Grantor
Active Location
Notes
04/01/2003
ACIN LLC
Wise County, VA (200301638)
Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)
04/01/2003
ACIN LLC
Scott County, VA (615/974)
Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)
04/01/2003
ACIN LLC
Buchanan County, VA (567/285)
Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)
CONTURA PENNSYLVANIA LAND, LLC
 
12/04/1980
Talen Generation, LLC (formerly known as PPL Generation, LLC, parent of Realty Company of Pennsylvania, successor to Greene Manor Coal Company)
Greene County, PA (656/987) and (492/3036)
Cumberland Mine (PLH- 00889)






Schedule 5.09
Environmental Matters
None.



    


Schedule 5.13
Subsidiaries
Subsidiaries of the Company
Contura Energy, LLC
Contura Energy Services, LLC
Contura Mining Holding, LLC
Contura CAPP Land, LLC
Contura Coal Resources, LLC
Contura Coal Sales, LLC
Contura Coal West, LLC
Contura European Marketing, LLC
Contura Freeport, LLC
Contura Pennsylvania Land, LLC
Contura Pennsylvania Terminal, LLC
Contura Terminal, LLC
Contura Wyoming Land, LLC
Cumberland Contura, LLC
Dickenson-Russell Contura, LLC
Emerald Contura, LLC
Nicholas Contura, LLC
Paramont Contura, LLC
Power Mountain Contura, LLC







Schedule 5.18
Intellectual Property
None.



    


Schedule 5.20
Mines
See attached.




    


SCHEDULE 5.20
MSHA ID
Operator
Mine Name
Type
Status
Longitude
Latitude
Directions to Mine
County
Nearest
Town/City
State
4405270
Paramont Contura, LLC
Toms Creek Complex
Facility
Active
82.452778
36.972222
Go 2.4 miles on US 23 South, take exit 28 onto Alt. 58 East, go 7.9 miles, go right onto Exit 1 then left onto Route 72 North. Go 1.9 miles and turn right onto Route 652. Go 3 miles and facility is on the left. Toms Creek Road, Coeburn, Va 24230
Wise
Coeburn
VA
4406929
Paramont Contura, LLC
Deep Mine #26
Underground
Active
82.514722
37.0925
Travel North on HWY 23 to Pound, Va, take business 23 exit. Turn right on SR 63 toward Clintwood, Va. Turn on to Red Onion Prison Rd, Turn left on to Chip Mill Rd 1.5 miles to mine. Rt 665 Off Rt 72 Clintwood Va 24228
Dickenson
Pound
VA
4407163
Paramont Contura, LLC
88 Strip
Surface
Active
82.158889
37.075556
Go 2.4 mi. on US23S to Exit 2B To Alt.58E, GO 19.7 MI. lEFT onto Rt. 63N, go3.9 mi. Right onto Rt. 615, go 7.2 mi. Go straight onto Rt. 600,go 1 mi. Right onto Rt. 621, go 4.3 mi.Left onto Rt. 601, go 5.5 mi. 4536 Monte Road, Cleveland Va 24225
Dickenson
Bee
VA
4407223
Paramont Contura, LLC
Deep Mine 41
Underground
Active
82.388333
37.096111
North 23 to Pound Exit, turn right on to Rt. 83 to Clintwood bearing right toward McClure, turn right onto Route 63 at Fremont, go 2 miles and turn right onto mine road. Mine is on the left. Route 773 Off Rt 63 McClure, Va 24269
Dickenson
McClure
VA
4407322
Paramont Contura, LLC
Cabin Ridge Surface Mine
Surface
Active
82.230556
37.039167
Go 2.4 miles on US 23S to Exit 2B onto Alt 58E, go 19.7 mi. Left onto Rt 63N, go 10.5 mi Right onto Rt 657, go 5.1 mi. Turn left onto Rt 699 mine on right. 1300 Counts Ridge Dante Va 24237
Dickenson
Dante
VA
4407367
Paramont Contura, LLC
Toms Creek North
Underground
New Mine
82.463056
36.973889
From Coeburn, Va. take St. Rt. 72N 1.66 miles to St. Rt. 652(Ralph Stanley Hwy.). Turn right onto St. Rt. 652( Ralph Stanley Hwy). Go .4 miles. Turn left onto Tom┐s Creek Prep. Plant Raw Coal Rd. Stay to left and go .38 miles to the mine yard. 12237 Tom’s Creek Rd.Coeburn, VA. 24230
Wise
Coeburn
VA
 
 
 
 
 
 
 
 
 
 
 
4400271
Dickenson-Russell Contura, LLC
Moss No 1 Preparation Plant
Facility
NonProducing
82.525
37.125
Take U. S. 23 North to Pound Exit onto Business 23 Travel approximately 3 miles and turn right onto RT 83. Travel Rt. 83 for approxiamtely 5 miles. Turn right at Red onion Prison RD,2 miles mine on left
Dickenson
Pound
VA
4402277
Dickenson-Russell Contura, LLC
Moss #3 Plant
Facility
NonProducing
82.186111
36.952778
Go 2.4 miles on US235 to Ext 2B onto Alt 58E, go 19.7 mi. left onto rt. 63N, go3.9 mi. Right onto Rt.615, go 5 mi. facility is on left. Route 615, Cleveland Va 24225
Russell
Cleveland
VA
4405311
Dickenson-Russell Contura, LLC
McClure River Plant
Facility
Active
82.391667
37.108333
Travel 9.1 miles on US23North. Turn right onto Business 23 North, go 1.8 miles. Turn right onto Route 83, go 15.2 miles. Turn Right onto Route 63. Go 3 miles, turn right to Facility entrance.
Dickenson
McClure
VA
 
 
 
 
 
 
 
 
 
 
 
4608787
Nicholas Contura LLC
Jerry Fork Eagle
Underground
Active
80.990556
38.298611
39 West, 11 miles, turn right on Jerry Fork Rd. # 2 Jerry Fork Road, Drennen,
Nicholas
Drennen
WV
4606880
Power Mountain Contura LLC
Power Mountain Processing
Facility
Active
81.002778
38.326667
# 2 Jerry Fork Road, Drennen Wv 26667
Nicholas
Drennen
WV
 
 
 
 
 
 
 
 
 
 
 
3609741
Contura Freeport LLC
Freeport Mine
Underground
Temporarily Idled
68.847222
41.146111
1/2 mile south of Clarksville, PA on SR 1011
Greene
Clarksville
PA

    


MSHA ID
Operator
Mine Name
Type
Status
Longitude
Latitude
Directions to Mine
County
Nearest
Town/City
State
3605018
Cumberland Contura, LLC
Cumberland Mine
Underground
Active
79.970556
39.799722
From Ruff Creek, take Route 19 South to Waynesburg. Turn right at first stop light. Follow Rt 21 West approx. 3 miles. Turn left onto the Oak Forest Road. Go approx. 3 miles to village of Oak Forest. Go through the village and turn left at the white church. Go app. 1 mile to mine entrance on left.Cumberland No 9 Portal: 576 Maple RUn Road Wanesburg Pa 15370. Cumberland Preparation Plant: 855 Kirby Road Waynesburg Pa 15370
Greene
Waynesburg
PA
3605466
Emerald Contura, LLC
Emerald Mine No 1
Facility
NonProducing
80.195833
39.937778
I-79 South to Waynesburg Exit. Route 21 West to U.S.Rt. 19 South to Rolling Meadows Road. Rolling Meadows Road to Garards Fort Road. Go app. 1.5 miles - mine on right. Portal No. 8 Emerald Preparatoin Plant: Route 218 South Waynesburg Pa 15370
Greene
Waynesburg
PA
 
 
 
 
 
 
 
 
 
 
 
4800732
Contura Coal West LLC
Belle Ayr Mine
Surface
Active
105.383056
44.1
18 miles south of Gillette on Highway 59. 2273 Bishop Road, Gillette WY 82718
Campbell
Gillette
WY
4801078
Contura Coal West LLC
Eagle Butte Mine
Surface
Active
105.416667
44.516667
8 Miles North of Gillette on Highway 14-16. 10023 Hwy 14-16 Gillette Wy82718
Campbell
Gillette
WY
 
 
 
 
 
 
 
 
 
 
 
4407308
 
Deep Mine 44 (Contract Mine)
Deep
Active
82º 22’ 28”
37º 03’ 32”
The mine site is located off RT.652 on Rush Branch of Open Fork of the McClure River, Access to the mine will be 1.3 miles west of Rt. 63 at Nora, Va. Then 1 mile up Rush Branch which is the haulroad at latitude 37º 03’ 32” and longitude 82º 22’ 28” in Dickenson County, Virginia. 1004 Hammons Road, Nora Va 24272
Dickenson
Nora
VA
4407129
 
Deep Mine 25 (Contract Mine)
Deep
Active
82º 31’ 44”
37º 08’ 06”
The mine site is located on RT.83, 5 miles east of Pound, Va. at latitude 37º 08’ 06” and longitude 82º 31’ 44” in Dickenson County, Virginia. 1200 Dickenson Highway Clintwood Va 24228
Dickenson
Clintwood
VA
4407217
 
Bear Ridge (Contract Mine)
Deep
Active
37º 03’ 35”
82º 15’ 42”
The mine site is located in Dickenson County approximately 2.5 miles northeast of Trammel off State Route 656. The site covers approximately6.45 acres at latitude 37º 03’ 35” and longitude 82º 15’ 42” on the Nora 7.5’ USGS Quadrangle. The mine site situated along Rush Branch of Roaring Fork. Access to the mine will be from State Route 656 2.25 miles east of State Route 63. 767 Four O Road Dante Va 24237
Dickenson
Dante
VA
4407231
 
Deep Mine 37 (Contract Mine)
Deep
Active
37º 03’ 35”
82º 15’ 42”
The mine site is located in Dickenson County approximately 6 miles from Clintwood, Va. off of The Lake Road (St. Rt. 607). Turn right onto Dwale Lane. Go approximately .7 miles to the mine. The site covers approximately 6.45 acres at latitude 37º 03’ 35” and longitude 82º 15’ 42” on the Nora 7.5’ USGS Quadrangle. The mine site situated along Rush Branch of Roaring Fork.Access to the mine will be from State Route 607 6 miles northeast of Clintwood 3 way red light at the junction of State Route 83 and The Lake Road (St. Rt. 607). 1103 Dwale Lane, Clintwood Va 24228
Dickenson
Clintwood
VA
4407306
 
Reedy Ridge (Contract Mine)
Deep
Active
37º 06’ 25.12”
82º 23’ 45.90”
The mine site is located in Dickenson County approximately 1.2 miles west of McClure off State Route 773. The site covers approximately 0.7 acres at latitude 37º 06’ 25.12” and longitude 82º 23’ 45.90” on the Caney Ridge 7.5’ USGS Quadrangle. The site is situated along Caney Creek. Access to the mine will be from State Route 773 through Dickenson-Russell Coal Company’s McClure Preparation Plant (Permit #1401833) then towards the Refuse Area. 2676 Herndon Road, McClure Va 24237
Dickenson
McClure
VA




MSHA ID
Operator
Mine Name
Type
Status
Longitude
Latitude
Directions to Mine
County
Nearest
Town/City
State
3600897
 
La Belle Dock Facility
Facility
Active
79.98999786
40.01
106 East Fredericktown Road, LaBelle, Pennsylvania 15450
Fayette
La Belle
PA
 
 
 
 
 
 
 
 
 
 
 







Schedule 6.20
Post Closing Schedule
1.
Subject to the limitations set forth in the Security Agreement, unless otherwise agreed by the Administrative Agent, in its discretion, no later than 60 days after the Closing Date, deliver to the Administrative Agent a control agreement in respect of each deposit account, securities account or commodities account constituting Collateral identified in the Security Agreement.
2.
Within 90 days after the Closing Date (or such later date as the Administrative Agent, in its discretion, may agree), (A) deliver to the Administrative Agent executed counterparts of one or more Mortgages on all Material Real Property in a form appropriate for recording in the applicable recording office, (B) provide the Administrative Agent with such information as may be reasonably requested for the Administrative Agent to obtain “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determinations in respect of the Material Real Property and, if any Material Real Property is located in a special flood hazard area, (1) execute and return to the Administrative Agent any notice about special flood hazard area status and flood disaster assistance delivered to the Company by the Administrative Agent and (2) provide evidence of applicable flood insurance as required by Section 6.07(b)(i) if such Material Real Property constitutes Collateral, (C) deliver to the Administrative Agent customary local counsel legal opinions (which, for the avoidance of doubt, shall not include any title opinions) from counsel in such jurisdictions as the Material Real Property is located, each in form and substance reasonably satisfactory to Administrative Agent or the Collateral Agent, (D) to the extent required by the Administrative Agent, use commercially reasonable efforts to deliver to the Administrative Agent evidence of the filing of as-extracted UCC-1 financing statements in the appropriate jurisdiction and (E) payment by the Company of all mortgage recording taxes and related charges required for the recording of such Mortgages unless, in the judgment of the Administrative Agent, delivery of such materials is unnecessary to ensure the Secured Parties benefit from a perfected First Priority security interest (subject to Permitted Real Estate Encumbrances) in such Material Real Property in favor of the Collateral Agent and such flood insurance (it is understood that in lieu of any new Mortgage, mortgage supplements or any other security documents may be delivered if reasonably acceptable to the Administrative Agent).
3.
With respect to any leasehold interest of the Company or any Restricted Subsidiary that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Company or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for no more than 150 days following the Closing Date, provided that nothing herein shall be construed as requiring the Company or any Restricted Subsidiary to pay any sums to the applicable lessor or to file suit or terminate a lease, or to threaten to do so, other than immaterial or incidental fees and expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Company set forth in this Paragraph 3, any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Borrower and its Restricted Subsidiaries shall no longer be required to use commercially reasonable efforts to obtain any such consent after the above-mentioned time periods).



    


Schedule 7.01
Existing Liens
Debtor
Secured Party
Location
Filing
Number
Filing Date
Notes
Contura Energy Services, LLC
Bank of Utah, as Owner Trustee under the Trust Agreement
DE SOS
2016 4519334
7/26/2016
Lien related to the Aircraft Operating Agreement (N731BP)
Contura Energy Services, LLC
CSC Leasing Company
DE SOS
2016 5287246
8/30/2016
Equipment
Contura Energy Services, LLC
CSC Leasing Company
DE SOS
2017 0240017
1/11/2017
Equipment
Contura Coal West, LLC
Wyoming Department of Environmental Quality
DE SOS
2016 4869846
8/11/2016
Equipment
Contura Coal West, LLC
Wyoming Department of Environmental Quality
DE SOS
2016 4870083
8/11/2016
Equipment
Contura Coal West, LLC
Caterpillar Financial Services Corporation
DE SOS
2016 6589756
10/26/2016
Equipment
Contura Coal West, LLC
Joy Global Surface Mining, Inc.
DE SOS
2016 7213273
11/21/2016
Equipment
Contura Coal West, LLC
Joy Global Surface Mining, Inc.
DE SOS
2016 7213406
11/21/2016
Equipment




    


Schedule 7.02
Existing Investments
Owner
Investment
Ownership Interest
Contural Terminal, LLC
Dominion Terminal Associates
40.625%*
Contura Coal West, LLC
Wyoming Quality Healthcare Coalition
33 1/3%

*Contura Energy, Inc. will acquire, on or around March 31, 2017, additional ownership interests in Dominion Terminal Associates for a total ownership percentage of 65%.
Other Investments
1.
The loan evidenced by that certain Promissory Note, dated April 1, 2016, made by Four-O-Mining Corporation, a Virginia corporation, in favor of Paramont Contura, LLC (as assigned by Paramont Coal Company Virginia, LLC) in the amount of $180,000. As of February 2017, the amount outstanding under this loan is $122,466.42




    


Schedule 7.03
Existing Indebtedness
1.
VEBA contributions for non-union retirees in an amount not to exceed $7,000,000 in the aggregate.
2.
Limited Guaranty, dated December 22, 2016, by Contura Energy, Inc. in favor of the West Virginia Department of Environmental Protection (the “ WVDEP ”) to guarantee certain payment obligations of ANR, Inc. of up to $4.5 M under the Reclamation Funding Agreement and that certain Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia dated as of July 12, 2016, by and among ANR, Inc., Contura Energy, Inc. and the WVDEP.
3.
Indebtedness under that certain (i) Life Cycle Management Agreement (Model 4100 XPB, S/N ES41125), dated October 30, 2014, by and between Joy Global Surface Mining Inc. (“ Joy ”) and Contura Coal West, LLC (as successor to Alpha Coal West, Inc.) (“ Contura Coal West ”) and (ii) Life Cycle Management Agreement (Model 4100, S/N ES55301), dated October 30, 2014, by and between Joy and Contura Coal West.




    


Schedule 7.08
Transactions with Affiliates
None.




    


Schedule 7.10
Burdensome Agreements
None.




    


Schedule 11.02
Agents’ Offices, Certain Addresses for Notices
If to the Borrower Representative:
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd.
Bristol, Tennessee 37620
Attention: Andy Eidson, Mark Manno
Telephone: 423-573-0300
Facsimile: 423-573-0448
Email:
andy.eidson@conturaenergy.com
mark.manno@conturaenergy.com

With a copy to:
Hunton & Williams LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, VA 23219
Attention: Kimberly C. MacLeod
Telephone: 804-787-8529
Facsimile: 804-343-4668
Email: kmacleod@hunton.com
If to the Administrative Agent:
Citibank, N.A.
388 Greenwich St. 7th Floor
New York, NY 10013
Attn: Shane Azzara Tel: (212) 723-3748
Fax: (646) 291-3359
E-mail: shane.azzara@citi.com
If to the applicable L/C Issuer:
Citigroup | Asset Based & Transitional Finance
388 Greenwich St., 8th Floor
New York, NY, 10013
Attn: Denise Perry
Tel: (212) 723-3755
Fax: (646) 291-3358
E-mail: denise.perry@citi.com







EXHIBIT A
TO
CREDIT AGREEMENT
FORM OF BORROWING NOTICE
_______________ __, _______
Citibank, N.A.
as Administrative Agent under the
Credit Agreement referred to below
388 Greenwich St. 7th Floor
New York, NY 10013
Attention: [●]
Re:
Borrowing Notice (this “ Notice ”) of Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Borrowers ”)
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Company, as Borrower Representative, hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the undersigned hereby requests a Borrowing of Loans under the Credit Agreement and, in connection therewith, sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.02(a) of the Credit Agreement:
A.    The Business Day of the Proposed Borrowing is    , (the “ Funding Date ”).
B.    The applicable Borrower requesting the     Proposed Borrowing is
C.    [The aggregate amount of the Borrowing is $          , of which amount [$ consists of Base Rate Loans] [and] [$ consists of Eurocurrency Rate Loans having an initial Interest Period of [one] [two] [three] [six] or [twelve] 1 month[s]].]
The undersigned, being a Responsible Officer of the Company, hereby certifies, in its capacity as a Responsible Officer of the Company and not in his/her individual capacity, that the following statements are true and correct on the date hereof and will be true and correct on the Funding Date:
An Interest Period of twelve (12) months requires consent of all Lenders pursuant to the definition of “Interest Period” in the Credit Agreement.

A-1
    


A.    The representations and warranties of (i) the Borrowers contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, provided that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof;
B.    No Default or Event of Default has occurred or is continuing, or would result from the Proposed Borrowing or from the application of the Proceeds thereof; and
C.    After giving effect to any Credit Extension (or the incurrence of any L/C Obligations), the Total Outstandings shall not exceed the Maximum Revolving Credit.
[SIGNATURE PAGES FOLLOW]




A-2
    


IN WITNESS WHEREOF, the undersigned has caused this Notice to be executed and delivered by a duly authorized officer as of the date first written above.
CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:




[SIGNATURE PAGE TO BORROWING NOTICE]
    


EXHIBIT B
TO
CREDIT AGREEMENT
FORM OF
NOTICE OF CONVERSION OR CONTINUATION
FORM OF BORROWING NOTICE
_______________ __, _______
Citibank, N.A.
as Administrative Agent under the
Credit Agreement referred to below
388 Greenwich St. 7th Floor
New York, NY 10013
Attention: [●]
Re:    Notice of Conversion or Continuation (this “ Notice ”) Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Borrowers ”)
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Company, as Borrower Representative, hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the undersigned hereby requests, on behalf of the applicable Borrower ______________, a [conversion] [continuation] on     ______________,___, ____ of $ _________________ in principal amount of presently outstanding Loans that are [Base Rate] [Eurocurrency Rate] Loans having an Interest Period ending on    , ______________,___, ____ [to] [as] [Base Rate][Eurocurrency Rate] Loans. [The Interest Period for such amount requested to be converted to or continued as Eurocurrency Rate Loans is [one] [two] [three] [six] or [twelve] 1 month[s].]


1 An Interest Period of twelve (12) months requires consent of all Lenders pursuant to the definition of “Interest Period” in the Credit Agreement.

B-1
    


IN WITNESS WHEREOF, the undersigned has caused this Notice to be executed and delivered by a duly authorized officer as of the date first written above.
CONTURA ENERGY, INC. 1
By:
 
 
Name:
 
Title:



1 Notice of Conversion or Continuation must be signed by a Responsible Officer of the Company.

[SIGNATURE PAGE TO NOTICE OF CONVERSION OR CONTINUATION]
    


EXHIBIT C
TO
CREDIT AGREEMENT
FORM OF PROMISSORY NOTE
(this “ Note ”)
Lender: [NAME OF LENDER]
 
New York, New York
Principal Amount: [$ ________________]
 
______________ __, ____
FOR VALUE RECEIVED, the undersigned, Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Borrowers ”), hereby promise to pay, on a joint and several basis, to the order of the Lender set forth above (the “ Lender ”) the Principal Amount set forth above, or, if less, the aggregate unpaid principal amount of all Loans (as defined in the Credit Agreement referred to below) of the Lender to the Borrowers, payable at such times, and in such amounts, as are specified in the Credit Agreement.
The Borrowers promise to pay interest on the unpaid principal amount of the Loans from the date made until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in Dollars to Citibank, N.A., as Administrative Agent, at 388 Greenwich St. 7th Floor, New York, New York 10013, or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement, in immediately available funds.
This Note is one of the Notes referred to in, and is entitled to the benefits of, the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Credit Agreement, among other things, (a) provides for the making of Loans by the Lender to the Borrowers in an aggregate amount not to exceed at any time outstanding the Principal Amount set forth above, the indebtedness of the Borrowers resulting from such Loans being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain events stated therein and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
This Note is entitled to the benefits of the Guarantee provided in Article 10 of the Credit Agreement and is secured by the Collateral described in the Collateral Documents.
Demand, diligence, presentment, protest and notice of non-payment and protest are hereby waived by the Borrowers.

C-1
    


THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]



C-2
    


IN WITNESS WHEREOF, the Borrowers have caused this Note to be executed and delivered by a duly authorized officer as of the date first written above.
CONTURA ENERGY, INC.,
CONTURA ENERGY, LLC,
EMERALD CONTURA, LLC,
DICKENSON-RUSSELL CONTURA, LLC,
NICHOLAS CONTURA, LLC,
CONTURA MINING HOLDING, LLC,
CONTURA COAL RESOURCES, LLC,
CONTURA WYOMING LAND, LLC,
CONTURA COAL SALES, LLC,
CONTURA ENERGY SERVICES, LLC,
POWER MOUNTAIN CONTURA, LLC,
CUMBERLAND CONTURA, LLC,
CONTURA PENNSYLVANIA LAND, LLC,
CONTURA FREEPORT, LLC,
CONTURA EUROPEAN MARKETING, LLC,
PARAMONT CONTURA, LLC,
CONTURA PENNSYLVANIA TERMINAL, LLC,
CONTURA CAPP LAND, LLC,
CONTURA COAL WEST, LLC
CONTURA TERMINAL, LLC
By:
 
 
Name:
 
Title:






[SIGNATURE PAGE TO PROMISSORY NOTE]
    


EXHIBIT D
TO
CREDIT AGREEMENT
FORM OF SWINGLINE LOAN NOTICE
(this “Notice”)
______________ __, ____

Citibank, N.A.
as Administrative Agent under the
Credit Agreement referred to below
388 Greenwich St. 7th Floor
New York, NY 10013 Attention:    [●]
Re:
Swingline Loan Notice (this “ Notice ”) of Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Borrowers ”).
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Company, as Borrower Representative, hereby requests a Swingline Loan of Loans under the Credit Agreement and, in connection therewith, sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.05(b) of the Credit Agreement:
A.    The Business Day of the Proposed Borrowing is    ,      ,      (the “ Funding Date ”).
B.    The applicable Borrower requesting the Proposed Borrowing is           .
C.    [The aggregate amount of the Borrowing is $          , which amount shall consist of Base Rate Loans.]
The undersigned, being a Responsible Officer of the Company, hereby certifies, in its capacity as a Responsible Officer of the Company and not in his/her individual capacity, that the following statements are true and correct on the date hereof and will be true and correct on the Funding Date:
D.    The representations and warranties of (i) the Borrowers contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such

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earlier date, provided that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof;
E.    No Default or Event of Default has occurred or is continuing, or would result from the Proposed Borrowing or from the application of the Proceeds thereof; and
F.    After giving effect to any Credit Extension (or the incurrence of any L/C Obligations), the Total Outstandings shall not exceed the Maximum Revolving Credit.
[SIGNATURE PAGES FOLLOW]



D-2
    


IN WITNESS WHEREOF, the undersigned has caused this Notice to be executed and delivered by a duly authorized officer as of the date first written above.
CONTURA ENERGY, INC. 1
By:
 
 
Name:
 
Title:



1 Borrowing Notice must be signed by a Responsible Officer of the Company.

[SIGNATURE PAGE TO SWINGLINE NOTICE]
    


EXHIBIT E
TO
CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
(this “Certificate”)
Financial Statment Date: _______, ____
To:    Citibank, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Borrowers ”), the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein shall have the meanings given to them in the Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as of the date hereof that he/she is the          of the Company, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate (this “ Certificate ”) to the Administrative Agent on the behalf of the Company, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1.    Attached hereto as Schedule 1 are (i) the year-end audited financial statements required by Section 6.01(a) of the Credit Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section and (ii) a detailed reconciliation of such financial information for the Company and its Restricted Subsidiaries, on the one hand, and the Company’s Unrestricted Subsidiaries, on the other hand (provided, that, for the avoidance of doubt, such reconciliation shall not be audited). Such financial statements fairly present in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such date and for such period.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1.    Attached hereto as Schedule 1 are (i) the unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Company ended as of the above date and (ii) a detailed reconciliation of such financial information for the Company and its Restricted Subsidiaries, on the one hand, and the Company’s Unrestricted Subsidiaries, on the other hand. Such financial statements fairly present in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.

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2.    The undersigned has reviewed the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a review in reasonable detail of the financial condition of the Company during the accounting period covered by the attached financial statements.
3.    The examination described in paragraph 2 above did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default or Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate except as set forth below, describing in detail, the nature of the condition or event and the status of such condition or event:
[          ]
4.    Unless as stated otherwise in a certificate of a Responsible Officer attached hereto, there has been no material change in accounting policies or financial reporting practices by the Company or any Subsidiary, except for any changes made in accordance with GAAP.
5.    Except as set forth on Schedule 2 hereto, subsequent to the date of the most recent Compliance Certificate submitted by the Company pursuant to Section 6.02(a) of the Credit Agreement, no Loan Party has (i) acquired any Instruments, Certificated Securities, Negotiable Documents or Tangible Chattel Paper with a value in excess of $3,000,000 individually, (ii) acquired any other Pledged Equity Interests, (iii) acquired any Commercial Tort Claim in an amount in excess of $3,000,000 (taking the greater of the aggregate claimed damages or reasonable estimated value), (iv) acquired or become the beneficiary of receivables in excess of $3,000,000 (in the aggregate) in respect of which the account debtor is a governmental authority, or (v) opened any new deposit accounts (other than Excluded Accounts).
[Use following paragraph 6 only after the occurrence and during the continuation of a
Liquidity Period under the Credit Agreement.]
6.    The financial covenant analyses and information set forth on Schedule 3 attached hereto are true and accurate on and as of the date of this Certificate.
[SIGNATURE PAGES FOLLOW]



E-2
    


IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed and delivered by a duly authorized officer as of the date first written above.
CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:




[SIGNATURE PAGE TO COMPLIANCE CERTIFICATE]
    


SCHEDULE 1
to the Compliance Certificate
[See attached]



E-4
    


SCHEDULE 2
to the Compliance Certificate
[See attached]



E-5
    


SCHEDULE 3
[Calculation of Fixed Charge Coverage Ratio is only required after the occurrence and during the continuation of a Liquidity Period under the Credit Agreement.]
For the fiscal [quarter][year] ended          ,      (“ Statement Date ”)
Fixed Charge Coverage Ratio.
The Fixed Charge Coverage Ratio for the Test Period ended as of the Financial Statement Date written above (“ Measurement Period ”) is set forth below and [is/is not] greater than or equal to 1.00:1.00 for the Measurement Period.
Fixed Charge Coverage Ratio is defined as follows:
A.
Consolidated EBITDA of the Company and its Restricted Subsidiaries (per Exhibit A)
$
B.
Non-financed Capital Expenditures (including Capital Expenditures financed with the proceeds of any Loans) paid or payable currently in cash by the Company or any of its Subsidiaries
$
C.
Total (A minus  B)
$
D.
Fixed Charges of the Company and its Restricted Subsidiaries (per Exhibit C)
$
 
Fixed Charge Coverage Ratio (C divided by D)
 



E-6
    


EXHIBIT A
CONSOLIDATED EBITDA
($ in 000’s)
Calculation of Consolidated EBITDA
Consolidated EBITDA
Quarter
Ended
Quarter
Ended
Quarter
Ended
Quarter
Ended
Twelve Months Ended
As of the last day of any period, Consolidated Net Income (per Exhibit B) for such period plus , without duplication:
 
 
 
 
 
i. consolidated interest expense, determined in accordance with GAAP
 
 
 
 
 
ii. to the extent deducted in computing Consolidated Net Income, the sum of all income, franchise or similar taxes (and less income tax benefits)
 
 
 
 
 
iii. depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of acquisition accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period)
 
 
 
 
 

F-7
    


Consolidated EBITDA
Quarter
Ended
Quarter
Ended
Quarter
Ended
Quarter
Ended
Twelve Months Ended
iv. non-recurring restructuring costs, expenses and charges including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and professional fees and stay and retention bonuses; provided that the amount of non- recurring restructuring costs, expenses and charges permitted to be added back pursuant to this clause for a four- quarter period shall not exceed 20% of Consolidated EBITDA for such period (calculated before giving effect to such add-back)
 
 
 
 
 
v. any expenses, costs or charges related to any equity offering, Investment permitted under Section 7.02 of the Credit Agreement, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful)
 
 
 
 
 
vi. all non-recurring or unusual losses, charges and expenses (and less all non- recurring or unusual gains)
 
 
 
 
 
vii. all non-cash charges and expenses
 
 
 
 
 
viii. any debt extinguishment costs
 
 
 
 
 
ix. any amount of asset retirement obligations expenses
 
 
 
 
 
x. all Transaction Costs incurred in connection with the Transactions contemplated by the Credit Agreement
 
 
 
 
 
xi. transaction costs, fees and expenses incurred during this period in connection with any acquisition or disposition not prohibited under the Credit Agreement or any issuance of debt or equity securities by the Company or any of its Restricted Subsidiaries, in each case, for such expenses
 
 
 
 
 

F-8
    


Consolidated EBITDA
Quarter
Ended
Quarter
Ended
Quarter
Ended
Quarter
Ended
Twelve Months Ended
xii. commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income
 
 
 
 
 
= Consolidated EBITDA
 
 
 
 
 
Notwithstanding the foregoing, for purposes of determining First Lien Leverage Ratio and Total Leverage Ratio, Consolidated EBITDA for the fiscal quarters ended March 31, 2016, June 30, 2016, September 30, 2016 and December 31, 2016 shall be deemed to be $24,500,000, $24,500,000, $39,400,000 and $103,500,000, respectively.
 
 
 
 
 

F-9
    


EXHIBIT B
CONSOLIDATED NET INCOME
($ in 000’s)
Calculation of Consolidated Net Income
A.
The net income (or loss) attributable to the Company and its Restricted Subsidiaries (unless another Person is expressly indicated) for the period covered by the financial statements delivered herewith, determined in accordance with GAAP:
$
B.
Excluding, without duplication:
 
 
1. Noncash compensation expenses related to common stock and other equity securities issued to employees:
$
 
2. Extraordinary and non-recurring gains and losses:
$
 
3. Income or losses from discontinued operations or disposal of discontinued operations or costs and expenses associated with the closure of any mines (including any reclamation or disposal obligations):
$
 
4. Any non-cash impairment charges or asset write-off resulting from the application of ASC 320 Investments-Debt and Equity Securities, ASC 323 Investments-Equity Method and Joint Ventures, ASC 350 Intangibles—Goodwill and Other and ASC 360 Property, Plant and Equipment and any future or similar ASC standards relating to impairment
$
 
5. Net unrealized gains or losses resulting in such period from non-cash foreign currency remeasurement gains or losses:
$
 
6. Net unrealized gains or losses resulting in such period from the application ASC 815 Derivatives and Hedging, in each case, for such period:
$
 
7. Non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles:
$
 
8. Any net income (or loss) for such period of any Person that is not a Restricted Subsidiary or is otherwise not a Subsidiary of such Person or that is accounted for by the equity method of accounting except to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person:
$
 
9. The net income (but not loss) of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders (other than any restriction that has been waived or released):
$
C.
Plus , without duplication, any cash dividends and/or distributions actually received by the Company or a Restricted Subsidiary from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein:
$
 
Consolidated Net Income
(A – B.1 – B.2 – B.3 – B.4 – B.5 – B.6 – B.7 – B.8 – B.9 $ + C)
$

F-10
    


EXHIBIT C
FIXED CHARGES OF THE COMPANY AND ITS SUBSIDIARIES
A.
All scheduled amortization payments of principal paid or due and payable during the Measurement Period by the Company or any its Restricted Subsidiaries in respect of any Indebtedness under clause (a) of the definition of Indebtedness (including scheduled payments of the principal portion of Capital Lease Obligations
$
B.
Consolidated interest expense (including the interest component of payments under Capital Lease Obligations) of the Company and its Restricted Subsidiaries for the Measurement Period
$
C.
The aggregate amount of Federal, state, local and foreign income Taxes and franchise and similar Taxes (net of any benefit or credit) included in the determination of Consolidated Net Income paid in cash during the Measurement Period
$
D.
All Restricted Payments of the type described in clause (a) of the definition of Restricted Payments payable in cash during the Measurement Period to any Person other than the Company and its Restricted Subsidiaries
$
 
Fixed Charges (sum of A plus  B plus  C plus  D)
$

F-11
    


EXHIBIT F
TO
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (the “ Assignment and Acceptance ”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “ Assignor ”) and [ Insert name of Assignee ] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to such terms in the Credit Agreement referenced below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the Facility (including without limitation any letters of credit, guarantees, and swingline loans included in the Facility), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “ Assigned Interest ”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.
1. Assignor:                             
2. Assignee:                             

Assignee is an [Affiliate][Approved Fund] of [identify Lender]
3. Borrowers:
Contura Energy, Inc., Contura Energy, LLC, Emerald Contura,LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC(collectively, the “ Borrowers ”)

F-1
    


4. Administrative Agent: Citibank, N.A., in such capacity, as the Administrative Agent under the Credit Agreement
5. Credit Agreement:
Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
6. Assigned Interest:
Assignor
Assignee
Facility Assigned
Aggregate Amount of Commitment/ Loans for all Lenders
Amount of Commitment/ Loans Assigned
Percentage Assigned of Commitment/ Loans
CUSIP Number
 
 
 
$
$
%
 
 
 
 
$
$
%
 
 
 
 
$
$
%
 
 
 
 
 
 
 
 
7.    Trade Date:              1
Effective Date:                   , 20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
1 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

F-2
    


The terms set forth in this Assignment and Acceptance are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
 
 
Name:
 
Title:

ASSIGNEE
[NAME OF ASSIGNEE]
By:
 
 
Name:
 
Title:

[Consented to and] Accepted: 1

CITIBANK, N.A.,
as Administrative Agent[, L/C Issuer] 2
[and Swingline Lender] 3
By:
 
 
Name:
 
Title:
[Consented to and]: 4

CONTURA ENERGY, INC., as the Borrower Representative
By:
 
 
Name:
 
Title:
1 To be added only if the consent of the Administrative Agent is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”
2 To be added only if the consent of the L/C Issuer is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”
3 To be added only if the consent of the Swingline Lender is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”
4 To be added only if the consent of the Borrowers is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”




ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
ASSET-BASED REVOLVING CREDIT AGREEMENT DATED AS OF APRIL 3, 2017,
BY AND AMONG THE BORROWERS, THE LENDERS PARTY THERETO AND
CITIBANK, N.A., AS ADMINISTRATIVE AGENT
STANDARD TERMS AND CONDITIONS
1.    Representations and Warranties.
1.1    Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of their Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrowers, any of their Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.    Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06 of the Credit Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest, and (vii) if it is a Foreign Lender, attached to the Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.    Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of the principal amount outstanding, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the

F-4
    


foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.
3.    General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.

F-5
    


EXHIBIT G
TO
CREDIT AGREEMENT
FORM OF
BORROWING BASE CERTIFICATE
Contura Energy, Inc.
Borrowing Base Certificate
Period ending / /     
Citibank, N.A.
as Administrative Agent under the
Credit Agreement referred to below
388 Greenwich St. 7th Floor
New York, NY 10013
Pursuant to Section 6.02(f) of the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Borrowers ”), the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent, Capitalized terms used but not defined herein shall have the meanings given to such terms in the Credit Agreement. The undersigned, being a Responsible Officer of the Company, hereby certifies, in such capacity and not in any individual capacity that:
(a)    attached hereto as Exhibit A is a schedule of the Borrowing Base of the Borrowers as of the above date and the calculations made with respect thereto, and such attached information is true, complete and correct in all material respects as of the close of business on the period end set forth above, and
(b)    based on the schedule attached hereto as Exhibit A, the aggregate amount of the Borrowing Base as of such date is: $              .
[(c) attached hereto as Exhibit B is a calculation demonstrating compliance with the Payment Conditions set forth in the Credit Agreement.]
(d) attached hereto as Exhibit C is a list of all new surety arrangements entered into by any Loan Party since the delivery of the last Borrowing Base Certificate.
[SIGNATURE PAGES FOLLOW]


G-1
    


IN WITNESS WHEREOF, the Borrowers have caused this certificate to be executed and delivered by a duly authorized officer on the date first written above.
CONTURA ENERGY, INC.,
CONTURA ENERGY, LLC,
EMERALD CONTURA, LLC,
DICKENSON-RUSSELL CONTURA, LLC, NICHOLAS CONTURA, LLC,
CONTURA MINING HOLDING, LLC, CONTURA COAL RESOURCES, LLC, CONTURA WYOMING LAND, LLC, CONTURA COAL SALES, LLC,
CONTURA ENERGY SERVICES, LLC, POWER MOUNTAIN CONTURA, LLC, CUMBERLAND CONTURA, LLC, CONTURA PENNSYLVANIA LAND, LLC, CONTURA FREEPORT, LLC,
CONTURA EUROPEAN MARKETING, LLC,
PARAMONT CONTURA, LLC,
CONTURA PENNSYLVANIA TERMINAL, LLC,
CONTURA CAPP LAND, LLC,
CONTURA COAL WEST, LLC and CONTURA TERMINAL, LLC
By:
 
 
Name:
 
Title:

[SIGNATURE PAGE TO BORROWING BASE CERTIFICATE]
    


CONTURA ENERGY
FORM OF BORROWING BASE CERTIFICATE
AS OF    , 20[ ]
 
Amount
Gross billed receivables
$ −
Ineligible -
$ −
Over 60 days past due
$ −
Credits in past due
$ −
Cross-aging
$ −
Contra accounts
$ −
Chargebacks
$ −
A/R not assignable per contract
$ −
Foreign without credit insurance
$ −
Total ineligible
$ −
Total eligible
$ −
Advance rate
 
Available
$ −
Gross unbilled receivables
$ −
Ineligible -
 
A/R not assignable per contract
$ −
Total eligible
$ −
Advance rate
 
Available
$ −
Gross approved foreign receivables
$ −
Advance rate
 
Available
$ −
Gross raw coal inventory
$ −
Ineligible -
 
Shrinkage reserve
$ −
Total eligible
$ −
Advance rate
$ −
Available
$ −
Gross clean coal inventory
$ −
Ineligible -
 
Shrinkage reserve
$ −
FOB destination shipments
$ −
Total eligible
$ −
Advance rate
 
Available
$ −
Grand total available
$ −
Shipping reserve - Norfolk Southern
 
CSX Transportation
$ −




 
Amount
Three Rivers
$ −
Total
$ −
Other Reserves
$ −
Net availability
$ −
Delivered at Possession Inventory included in Eligible Inventory
$ −




EXHIBIT A TO BORROWING BASE CERTIFICATE
BORROWING BASE CALCULATIONS

G-3
    


EXHIBIT B TO BORROWING BASE CERTIFICATE
PAYMENT CONDITIONS

G-4
    


EXHIBIT C TO BORROWING BASE CERTIFICATE
LIST OF NEW SURETY ARRANGEMENTS

G-5
    


EXHIBIT H
TO
CREDIT AGREEMENT
SECURITY AGREEMENT
[SEE ATTACHED]

H-1
    



[FORM OF]
PLEDGE AND SECURITY AGREEMENT
among
CONTURA ENERGY, INC.,
each Subsidiary of Contura Energy, Inc. identified herein,
and
CITIBANK, N.A.,
as Collateral Agent
Dated as of April 3, 2017





TABLE OF CONTENTS
________________________________
PAGE
SECTION 1. DEFINED TERMS
1

1.1.
Definitions
1

1.2.
Other Definitional Provisions
5

SECTION 2. GRANT OF SECURITY INTEREST
5

SECTION 3. REPRESENTATIONS AND WARRANTIES
7

3.1.
[Reserved]
7

3.2.
Title; No Other Liens
7

3.3.
Valid, Perfected First Priority Liens
7

3.4.
Name; Jurisdiction of Organization, Etc
7

3.5.
Investment Property
8

3.6.
Commercial Tort Claims
9

3.7.
Intellectual Property
9

3.8.
Special Collateral
9

SECTION 4. COVENANTS
9

4.1.
[Reserved] ..............................................................Error! Bookmark not defined.
 
4.2.
Delivery of and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property
9

4.3.
Maintenance of Perfected Security Interest; Further Assurances
10

4.4.
Investment Property
10

4.5.
Voting and Other Rights with Respect to Pledged Securities
11

4.6.
Commercial Tort Claims
11

4.7.
Intellectual Property
11

4.8.
Vehicles
12

4.9.
Government Receivables
12

4.10.
Deposit Accounts
12

SECTION 5. REMEDIAL PROVISIONS
13

5.1.
Proceeds to be Turned Over To Collateral Agent
13

5.2.
Application of Proceeds
13

5.3.
Code and Other Remedies
13

5.4.
Certain Matters Relating to Receivables
15

5.5.
Effect of Securities Laws
15

5.6.
Deficiency
15

SECTION 6. POWER OF ATTORNEY AND FURTHER ASSURANCES
15

6.1.
Collateral Agent’s Appointment as Attorney-in-Fact, Etc.
15

6.2.
Authorization of Financing Statements
17

SECTION 7. LIEN ABSOLUTE
17

7.1.
Security Interest Absolute
17





7.2.
Continuing Rights
18

SECTION 8. THE COLLATERAL AGENT
18

8.1.
Authority of
18

8.2.
No Duty on the Part of Collateral Agent or Secured Parties
18

8.3.
Appointment Pursuant to Credit Agreement
18

8.4.
Hedge Bank
19

SECTION 9. MISCELLANEOUS
19

9.1.
Amendments in Writing
19

9.2.
Notices
19

9.3.
No Waiver by Course of Conduct; Cumulative Remedies
19

9.4.
[Reserved] ..............................................................Error! Bookmark not defined.
 
9.5.
Successors and Assigns
20

9.6.
Set-Off
20

9.7.
Counterparts
20

9.8.
Severability
20

9.9.
Section Headings
21

9.10.
Integration
21

9.11.
GOVERNING LAW
21

9.12.
Submission to Jurisdiction; Waivers
21

9.13.
Acknowledgments
22

9.14.
WAIVER OF JURY TRIAL
22

9.15.
Release.
22

9.16.
Additional Grantors
23

SCHEDULE 1
Subsidiary Parties
SCHEDULE 2
Description of Pledged Investment Property
SCHEDULE 3
Filings and Other Actions Required to Perfect Security Interests
SCHEDULE 4
Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office
SCHEDULE 5
Commercial Tort Claims
SCHEDULE 6
United States Copyrights; Patents; Trademarks; Copyright Licenses
SCHEDULE 7
Notices
ANNEX 1
Assumption Agreement
ANNEX 2
Form of Uncertificated Securities Control Agreement
EXHIBIT A-1
Form of Copyright Security Agreement
EXHIBIT A-2
Form of Patent Security Agreement
EXHIBIT A-3
Form of Trademark Security Agreement





PLEDGE AND SECURITY AGREEMENT, dated as of April 3, 2017 (the “ Execution Date ”), among Contura Energy, Inc., a Delaware corporation (the “ Company ”), each Subsidiary of the Borrower signatory hereto (together with any other Subsidiary of the Company that may become a party hereto as provided herein, each a “ Subsidiary Party ” and, together with the Company, the “ Grantors ”), and Citibank, N.A., as collateral agent for the Secured Parties (as herein defined) (in such capacity, the “ Collateral Agent ”).
W I T N E S S E T H:
WHEREAS, the Grantors have entered into that certain Asset-Based Revolving Credit Agreement dated as of the date hereof, among the Grantors, as Borrowers, the lenders from time to time party thereto and Citibank, N.A., as administrative agent (the “ Administrative Agent ”) (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”);
WHEREAS, in order to induce the Administrative Agent, the Collateral Agent, the Lenders and the L/C Issuers to enter into the Credit Agreement and to extend credit to the Borrowers, the Grantors have agreed to grant, pursuant to the terms of this Agreement, a continuing security interest in and to the Collateral to the Collateral Agent for the ratable benefit of the Secured Parties to secure the Obligations.
WHEREAS, the Company and each other Grantor are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the transactions contemplated by the Credit Agreement; and
NOW, THEREFORE, in consideration of the premises and the agreements herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1.    Definitions. (a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the following terms which are defined in the UCC are used herein as so defined (and if defined in more than one article of the UCC shall have the meaning specified in Article 9 thereof): Accounts, As-Extracted Collateral, Commercial Tort Claims, Certificated Security, Chattel Paper, Commodity Contract, Commodity Account, Documents, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Health Care Insurance Receivable, Instruments, Inventory, Letter of Credit Rights, Manufactured Homes, Money, Payment Intangibles, Securities Account, Security, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.
(b)    The following terms shall have the following meanings: “ Administrative Agent ”: as set forth in the recitals hereto.
“ Agreement ”: this Pledge and Security Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“ After-Acquired Intellectual Property ”: as set forth in Section 4.7(c).
“ Collateral ”: as set forth in Section 2.
“ Collateral Account ”: any collateral account established by the Collateral Agent as provided in Section 5.1 or Section 5.4.




“ Collateral Agent ”: as set forth in the preamble hereto.
“ Company ”: as set forth in the preamble hereto.
“ Copyrights ”: (a) all copyrights, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications therefor, and (b) all extensions, renewals and restorations thereof and the right to obtain the same.
“ Copyright Licenses ”: any written agreement to which any Grantor is a party (whether as licensor or licensee), granting any right to or under any Copyright, including providing any covenant not to sue for infringement or violation of a Copyright.
“ Credit Agreement ”: as set forth in the recitals hereto.
“ Deposit Account ” shall mean all “ deposit accounts ” as defined in Article 9 of the UCC and all other accounts maintained with any financial institution (other than Securities Accounts or Commodity Accounts), and shall include, without limitation, all of the accounts listed on Schedule 2 hereto under the heading “ Deposit Accounts ” together, in each case, with all funds held therein and all certificates or instruments representing any of the foregoing.
“ Execution Date ”: as set forth in the preamble hereto.
“ Insurance ”: all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is the a loss payee thereof).
“ Intellectual Property ”: in all jurisdictions worldwide, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses, and Trade Secrets, and all rights to sue at law or in equity for any infringement, dilution, misappropriation, violation or other impairment thereof, including the right to receive all past, present and future damages therefrom and all license fees, royalties, income payments and other proceeds therefrom now or hereafter due or payable with respect thereto.
“ Investment Property ”: the collective reference to (a) all “ investment property ” as such term is defined in Section 9-102(a)(49) of the UCC (including, without limitation, all Certificated Securities and Uncertificated Securities, all Security Entitlements, all Securities Accounts, all Commodity Contracts and all Commodity Accounts), (b) all security entitlements, in the case of any United States Treasury book-entry securities, as defined in 31 C.F.R. section 357.2, or, in the case of any United States federal agency book-entry securities, as defined in the corresponding United States federal regulations governing such book-entry securities, and (c) whether or not constituting “ investment property ” as so defined, all Pledged Notes, all Pledged Equity Interests, all Pledged Security Entitlements and all Pledged Commodity Contracts.
“ Issuer ”: each issuer of any Investment Property.
“ Patents ”: (a) all patentable inventions and designs, letters patent, certificates of invention and similar industrial property rights and all reissues and extensions thereof, (b) all related applications and all divisions, continuations and continuations-in-part thereof and reexaminations thereof and (c) all rights to obtain any reissues or extensions of the foregoing.
“ Patent License ”: all written agreements providing for the grant by or to any Grantor of any right to or under a Patent or otherwise providing for a covenant not to sue for infringement or other violation of a Patent.




“ Pledged Commodity Contracts ”: all Commodity Contracts, to which any Grantor is party from time to time.
“ Pledged Debt Securities ”: all debt securities now owned or hereafter acquired by any Grantor together with any other certificates, options, rights or security entitlements of any nature whatsoever in respect of the debt securities of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect.
“ Pledged Equity Interests ”: all Equity Interests, and shall include Pledged LLC Interests, Pledged Partnership Interests and Pledged Stock, now owned or hereafter acquired by any Grantor.
“ Pledged LLC Interests ”: all membership interests and other interests now owned or hereafter acquired by any Grantor in any limited liability company including, without limitation, all limited liability company interests listed on Schedule 2 hereto under the heading “ Pledged LLC Interests ” and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company and any securities entitlements relating thereto and all dividends, distributions, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests, in each case, constituting membership or other interests in any limited liability company and any other warrant, right or option or other agreement to acquire any of the foregoing and all related management rights, all voting rights, any interest in any capital account of a member in such limited liability company, and all rights as and to become a member of the limited liability company.
“ Pledged Notes ”: all promissory notes now owned or hereafter acquired by any Grantor including, those listed on Schedule 2 and all other promissory notes issued to or held by any Grantor (other than promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary course of business).
“ Pledged Partnership Interests ”: all partnership interests and other interests now owned or hereafter acquired by any Grantor in any general partnership, limited partnership, limited liability partnership or other partnership including, without limitation, all partnership interests listed on Schedule 2 hereto under the heading “ Pledged Partnership Interests ” and the certificates, if any, representing such partnership interests, and any interest of such Grantor on the books and records of such partnership and all dividends, distributions, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests, in each case, constituting membership or other interests in any general partnership, limited partnership, limited liability partnership or other partnership and any other warrant, right or option to acquire any of the foregoing and all management rights, all voting rights, any interest in any capital account of a partner in such partnership, and all rights as and to become a partner of such partnership.
“ Pledged Securities ”: the collective reference to the Pledged Debt Securities, the Pledged Notes and the Pledged Equity Interests regardless of whether constituting Securities under the UCC.
“ Pledged Security Entitlements ”: all security entitlements of any Grantor.
“ Pledged Stock ”: all shares of capital stock now owned or hereafter acquired by such Grantor, including, without limitation, all shares of capital stock described on Schedule 2 hereto under the heading “ Pledged Stock ”, and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares and all dividends, distributions, warrants, rights, options, instruments, securities and other property from time to time received, receivable or otherwise distributed in




respect of or in exchange for any or all of such shares, constituting capital stock and any other warrant, right or option to acquire any of the foregoing.
“ Proceeds ”: all “ proceeds ” as such term is defined in Section 9-102(a)(64) of the UCC and, in any event, shall include, without limitation, all dividends or other income from the Pledged Securities, collections thereon and distributions or payments with respect thereto.
“ Receivable ”: all Accounts and any other any right to payment for goods or other property sold, leased, licensed or otherwise disposed of or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper or classified as a Payment Intangible and whether or not it has been earned by performance. References herein to Receivables shall include any Supporting Obligation or collateral securing such Receivable.
“ Securities Act ”: the Securities Act of 1933, as amended.
“ Trademarks ”: (a) all trademarks, trade names, service marks, corporate names, business names, Internet domain names and URLs and other indicia of source or business identifiers, whether registered or unregistered and all goodwill symbolized by or associated with any of the foregoing, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications for registration thereof, and (b) all renewals and extensions thereof and the right to obtain all renewals and extensions thereof.
“ Trademark License ”: any written agreement providing for the grant by or to any Grantor of any right in or to any Trademark or otherwise providing for a covenant not to sue for infringement, dilution, or other violation of any Trademark or permitting co- existence with respect to a Trademark.
“ Trade Secrets ”: all trade secrets and all confidential and proprietary information, including know-how, manufacturing and production processes and techniques, inventions, research and development information, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and confidential information.
“ UCC ”: the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “ UCC ” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.
“ Vehicles ”: all cars, trucks, trailers, construction and earth moving equipment and other Equipment of any nature, in each case covered by a certificate of title law of any US jurisdiction and all tires and other appurtenances to any of the foregoing.
1.2.    Other Definitional Provisions. (a) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.
(b)    The interpretative provisions of Section 1.02 of the Credit Agreement shall be incorporated herein mutatis mutandis .
(c)    All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC.




SECTION 2. GRANT OF SECURITY INTEREST
(a)    Each Grantor hereby grants to the Collateral Agent and its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in all of the following property, in each case, wherever located and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “ Collateral ”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations:
(i)    all Accounts, including Receivables;
(ii)    all As-Extracted Collateral;
(iii)    all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(iv)    all Deposit Accounts;
(v)    all Documents;
(vi)    all Equipment;
(vii)    all Fixtures;
(viii)    all General Intangibles;
(ix)    all Instruments;
(x)    all Insurance;
(xi)    all Intellectual Property;
(xii)    all Inventory (including, without limitation, Coal Inventory);
(xiii)    all Investment Property;
(xiv)    all Letter of Credit Rights;
(xv)    all Money, cash and cash equivalents;
(xvi)    all Pledged Equity Interests;
(xvii)    all Vehicles;
(xviii)    all Collateral Accounts;
(xix)    all Goods not otherwise described above;
(xx)    all Commercial Tort Claims now or hereinafter described, including as set forth on Schedule 5 or for which documentation is provided in accordance with Section 4.6;




(xxi)    all books and records pertaining to the Collateral; and
(xxii)    to the extent not otherwise included, all other property of such Grantor and all Proceeds, products, accessions, rents and profits of any and all of the foregoing and all collateral security, Supporting Obligations and guarantees given by any Person with respect to any of the foregoing.
(b)    Notwithstanding any of the other provisions set forth in this Agreement or in any other Loan Document, this Agreement shall not constitute a grant of a security interest in any Excluded Assets and none of the Excluded Assets shall constitute Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Collateral Agent to enter into this Agreement and to induce each other Secured Party to make their respective extensions of credit to the Borrower under the Credit Agreement, each Grantor hereby represents and warrants to each of the Secured Parties that:
3.1.    [Reserved].
3.2.    Title; No Other Liens. Each Grantor owns each item of the Collateral free and clear of any and all Liens or claims, including, without limitation, Liens arising as a result of such Grantor becoming bound (as a result of merger or otherwise) as grantor under a security agreement or pledge agreement entered into by another Person, except, in each case, for Permitted Liens.
3.3.    Valid, Perfected First Priority Liens. The security interests granted pursuant to this Agreement constitute a legal and valid security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, securing the payment and performance of each Grantor’s Obligations and upon completion of the filings and other actions specified on Schedule 3 (all of which, in the case of all filings and other documents referred to on such Schedule, may be filed by the Collateral Agent at any time), will constitute fully perfected security interests in all of the Collateral prior to all other Liens on the Collateral except Permitted Liens. To the extent requested by the Collateral Agent, each Grantor has taken all actions necessary, including without limitation those specified in Section 4.2 to (i) establish the Collateral Agent’s “ control ” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Collateral constituting Certificated Securities or Uncertificated Securities or (ii) establish the Collateral Agent’s “ control ” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts (other than Excluded Accounts).
3.4.    Name; Jurisdiction of Organization, Etc. As of the Execution Date, (a) each Grantor’s exact legal name (as indicated on the public record of such Grantor’s jurisdiction of formation or organization), jurisdiction of organization and the location of each Grantor’s chief executive office or sole place of business are specified on Schedule 4; (b) each Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction; (c) except as specified on Schedule 4, it has not changed its name, jurisdiction of organization, chief executive office or sole place of business (if applicable) or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past four months; and (d) unless otherwise stated on Schedule 4, no Grantor is a transmitting utility as defined in UCC § 9- 102(a)(80).
3.5.    Investment Property. As of the Execution Date:
(a)    Schedule 2 hereto sets forth under the headings “ Pledged Stock ”, “ Pledged LLC Interests ” and “ Pledged Partnership Interests ”, respectively, all of the Pledged Equity Interests owned by any Grantor




and required to be pledged hereunder and such Pledged Equity Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interests or percentage of partnership interests of the respective issuers thereof indicated on such Schedule. Schedule 2 hereto sets forth under the headings “ Pledged Debt Securities ” or “ Pledged Notes ” all of the Pledged Debt Securities and Pledged Notes (in each case with a value in excess of $3,000,000, individually) owned by any Grantor and required to be pledged hereunder, and all of such Pledged Debt Securities and Pledged Notes, to the knowledge of such Grantor, are the legal, valid and binding obligation of the issuers thereof enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally, general principles of equity, regardless of whether considered in a proceeding in equity or at law and an implied covenant of good faith and fair dealing;
(b)    Schedule 2 hereto sets forth under the headings “ Securities Accounts, ” “ Commodities Accounts, ” and “ Deposit Accounts, ” respectively, all of the Securities Accounts, Commodities Accounts and Deposit Accounts in which each Grantor has an interest (other than, in each case, Excluded Accounts). Each Grantor is the sole entitlement holder or customer of each such account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto) having “ control ” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any other interest in, any such Securities Account, Commodity Account or Deposit Account or any securities, commodities or other property credited thereto;
(c)    All of the shares of Pledged Equity Interests required to be pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of the Equity Interests of each Issuer owned by such Grantor (other than any Excluded Assets);
(d)    All of the shares of Pledged Equity Interests required to be pledged hereunder have been duly and validly issued and (other than such Pledged Equity Interests consisting of limited liability or partnership interests which cannot be fully paid or which cannot be nonassessable) are fully paid and nonassessable;
(e)    Except as set forth on Schedule 2, there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interest required to be pledged hereunder;
(f)    Except as set forth on Schedule 2, there are no limited liability company or limited partnership interests required to be pledged hereunder that constitute a “ security ” within the meaning of Article 8 of the UCC.
3.6.    Commercial Tort Claims As of the Execution Date, all Commercial Tort Claims in an amount (taking the greater of the aggregate claimed damages thereunder or the reasonably estimated value thereof) of $3,000,000 or more of each Grantor in existence on the Execution Date are described on Schedule 5 hereto.
3.7.    Intellectual Property As of the Execution Date, (a) Schedule 6 sets forth, for each Grantor, a true and accurate list of: (i) all registrations and applications for registration of any United States Copyright owned by such Grantor; (ii) all United States Patents and applications for Patents owned by such Grantor; and (iii) all registrations and applications in connection with United States Trademarks owned by such Grantor, each of which is required to be pledged hereunder; (b) except as set forth on Schedule 6, such Grantor is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to such listed Intellectual Property, as well as any other material Intellectual Property owned by such Grantor,




in each case free and clear of all Liens, claims and exclusive licenses, except for Permitted Liens; (c) except as set forth on Schedule 6, such Grantor has not made a previous assignment, sale, transfer, exclusive license, or similar arrangement constituting a present or future assignment, sale, transfer, exclusive license or similar arrangement of any material Intellectual Property that has not been terminated or released; and (d) Schedule 6 lists all exclusive, inbound Copyright Licenses held by such Grantor pursuant to which such Grantor has been granted rights in or to any registered United States Copyrights.
3.8.    Special Collateral. As of the Execution Date, none of the Collateral constitutes, or is the Proceeds of, (a) Farm Products, (b) Manufactured Homes, (c) Health-Care Insurance Receivables, (d) timber to be cut, or (e) aircraft, engines, satellites, ships or railroad rolling stock, in each case with a value of individually greater than $3,000,000.
SECTION 4. COVENANTS
Each Grantor covenants and agrees with the Secured Parties that, from and after the date of this Agreement until the Payment in Full of the Obligations shall have occurred:
4.1. [Reserved]. Delivery of and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property. (a) If any of the Collateral (with a value in excess of $3,000,000, individually, for Collateral other than Pledged Equity Interests) becomes evidenced or represented by any Instrument, Certificated Security, Negotiable Document or Tangible Chattel Paper, such Instrument, Certificated Security, Negotiable Document or Tangible Chattel Paper shall be delivered to the Collateral Agent (or its bailee pursuant to the terms of the Term Loan Intercreditor Agreement) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), duly endorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement.
(b) If any of the Pledged Equity Interests required to be pledged hereunder becomes evidenced or represented by an Uncertificated Security, the Grantors shall within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), cause the relevant Issuer either (i) to register the Collateral Agent as the registered owner of such Uncertificated Security, upon original issue or registration of transfer, or (ii) to agree in writing with the relevant Grantor and the Collateral Agent that the relevant Issuer will, upon an Event of Default, comply with instructions with respect to such Uncertificated Security originated by the Collateral Agent without further consent of the relevant Grantor, such agreement to be in substantially the form of Annex 2 or in form and substance reasonably satisfactory to the Collateral Agent.
4.3.    Maintenance of Perfected Security Interest; Further Assurances. (a) Each Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 3.3 and shall take all reasonable actions to defend such security interest against the claims and demands of all Persons whomsoever (subject to Permitted Liens permitted to exist on the Collateral under Section 3.3).
(b) At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of such Grantor, such Grantor shall promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Collateral Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, (i) the filing of any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with




respect to the security interests created hereby and (ii) in the case of Investment Property, Deposit Accounts and any other relevant Collateral, taking any actions necessary to enable the Collateral Agent to obtain “ control ” (within the meaning of the applicable Uniform Commercial Code) with respect thereto to the extent required hereunder, including without limitation, executing and delivering and causing the relevant depositary bank or securities intermediary to execute and deliver a control agreement in form and substance reasonably satisfactory to the Collateral Agent.
4.4.    Investment Property. If a Grantor shall become entitled to receive or shall receive any stock or other ownership certificate (including, without limitation, any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), or option or rights in respect of the Pledged Equity Interest of any Issuer required to be pledged hereunder, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of or other ownership interests in such Pledged Equity Interests, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties and deliver the same forthwith to the Collateral Agent (or its bailee pursuant to the terms of the Term Loan Intercreditor Agreement) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), in the exact form received, duly endorsed by such Grantor to the Collateral Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor to be held by the Collateral Agent (or its bailee pursuant to the terms of the Term Loan Intercreditor Agreement), subject to the terms hereof, as additional collateral security for the Obligations. If an Event of Default shall have occurred and be continuing and any sums of money or property so paid or distributed in respect of the Pledged Equity Interests required to be pledged hereunder shall be received by such Grantor, such Grantor shall, until such money or property is paid or delivered to the Collateral Agent, hold such money or property in trust for the Secured Parties, segregated from other funds of such Grantor, as additional collateral security for the Obligations.
4.5.    Voting and Other Rights with Respect to Pledged Securities. Unless an Event of Default shall have occurred and be continuing and the relevant Grantor shall have received written notice from the Collateral Agent, such Grantor shall be permitted to receive all dividends and distributions paid in respect of the Pledged Equity Interests required to be pledged hereunder and all payments made in respect of the Pledged Notes or Pledged Debt Securities required to be pledged hereunder, to the extent permitted by the Credit Agreement and to exercise all voting and corporate rights with respect to such Pledged Equity Interests. If an Event of Default shall occur and be continuing and the relevant Grantor shall have received written notice from the Collateral Agent: (i) all rights of the relevant Grantor to exercise or refrain from exercising the voting and other consensual rights with respect to Pledged Securities required to be pledged hereunder, which it would otherwise be entitled to exercise shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right, but shall be under no obligation, to exercise or refrain from exercising such voting and other consensual rights, (ii) the Collateral Agent shall have the right to transfer all or any portion of such Pledged Securities to its name or the name of its nominee or agent, (iii) the Collateral Agent shall have the right at any time to exchange any certificates or instruments representing any Pledged Securities required to be pledged hereunder for certificates or instruments of smaller or larger denominations and (iv) in order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder, the relevant Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and the relevant Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth herein. Each Grantor hereby authorizes and instructs each Issuer of Pledged Securities required to be pledged hereunder




to (i) comply with any instruction received by it from the Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from the relevant Grantor, and each Grantor agrees that the Issuer shall be fully protected in so complying, and (ii) if an Event of Default shall have occurred and be continuing and any Issuer shall have received notice from the Collateral Agent, pay any dividends or other payments with respect to such Pledged Securities directly to the Collateral Agent.
4.6.    Commercial Tort Claims. If any Grantor shall at any time after the date of this Agreement acquire a Commercial Tort Claim in an amount (taking the greater of the aggregate claimed damages thereunder or the reasonably estimated value thereof) of $3,000,000 or more, such Grantor shall within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), notify the Collateral Agent thereof in a writing signed by such Grantor and shall promptly thereafter grant to the Collateral Agent a security interest therein and in the proceeds thereof, all upon the terms of this Agreement.
4.7.    Intellectual Property. (a) Such Grantor will not, without the prior written consent of the Collateral Agent, do any act or omit to do any act whereby any material Intellectual Property may lapse, become abandoned, cancelled, dedicated to the public, forfeited, or otherwise impaired, or abandon any application or any right to file an application for a Copyright, Patent, or Trademark listed in Schedule 6, except, in each case where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b)    Such Grantor agrees that, should it hereafter (i) obtain an ownership interest in any item of Intellectual Property, (ii) obtain an exclusive license to any Copyrights, (iii) (either by itself or through any agent, employee, licensee, or designee) file any application for the registration or issuance of any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any similar office or agency in any other country or in any political subdivision of any of the foregoing; or (iv) file a Statement of Use or an Amendment to Allege Use with respect to any “ intent-to-use ” Trademark application (the items in clauses (i), (ii) (iii) and (iv), collectively, the “ After-Acquired Intellectual Property ”), then the provisions of Section 2 shall automatically apply thereto and such Grantor shall comply with the terms of the Credit Agreement, including by executing IP Security Agreements with respect to any United States After-Acquired Intellectual Property in order to record the security interest granted herein to the Collateral Agent for the benefit of the Secured Parties with the United States Patent and Trademark Office or the United States Copyright Office, as applicable.
(c)    In the event that any material Intellectual Property owned by any Grantor is infringed, misappropriated, diluted or otherwise violated by another Person, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, such Grantor shall promptly take all actions (as determined in its own reasonable business judgment) to stop such infringement, misappropriation, dilution or other violation and protect its rights in such material Intellectual Property including, but not limited to, if so determined in its own reasonable business judgment, the initiation of a suit for injunctive relief and to recover damages.
4.8.    Vehicles. With respect to any Vehicle required to be pledged hereunder, upon the reasonable request of the Collateral Agent after an Event of Default has occurred and is continuing, all applications for certificates of title or ownership indicating the Collateral Agent’s first priority security interest in the Vehicle covered by such certificate, and any other necessary documentation, shall be filed in each office in each jurisdiction which the Collateral Agent shall deem advisable to perfect its security interests in such Vehicles.




4.9.    Government Receivables. If any Grantor shall at any time after the date of this Agreement acquire or become the beneficiary of Receivables required to the pledged hereunder in excess of $3,000,000 in the aggregate in respect of which the account debtor is a Governmental Authority, such Grantor shall (i) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), (ii) upon the reasonable request of the Collateral Agent, shall take any necessary steps to perfect the Lien of the Collateral Agent for the benefit of the Secured Parties therein, and (iii) make such Lien enforceable against the account debtor.
4.10.    Deposit Accounts. Each Grantor shall deliver to the Collateral Agent (i) within 60 days of the Execution Date (or such longer period as may be agreed by the Collateral Agent) an executed deposit account control agreement in form and substance reasonably satisfactory to the Collateral Agent, providing for springing cash dominion upon an Event of Default, over all Deposit Accounts of the Grantors other than Excluded Accounts and (ii) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), cause any new Deposit Account (other than Excluded Accounts) to be subject to such control agreement or another control agreement in form and substance reasonably satisfactory to the Collateral Agent.
SECTION 5. REMEDIAL PROVISIONS
5.1.    Proceeds to be Turned Over To Collateral Agent. If an Event of Default shall occur and be continuing, all Proceeds received by any Grantor consisting of cash, cash equivalents, checks and other near-cash items shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon request by the Collateral Agent, be turned over to the Collateral Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the Collateral Agent, if required). All Proceeds received by the Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained under its sole dominion and control. All Proceeds while held by the Collateral Agent in a Collateral Account (or by such Grantor in trust for the Secured Parties) shall continue to be held as collateral security for all the Obligations and shall not constitute payment thereof until applied as provided in Section 5.2.
5.2.    Application of Proceeds. All proceeds received by the Collateral Agent in respect of any sale of, any collection from, or other realization upon all or any part of the Collateral shall be applied by the Collateral Agent as provided in Section 8.04 of the Credit Agreement. Any proceeds not applied shall be held by the Collateral Agent as Collateral.
5.3.    Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable law or in equity. Without limiting the generality of the foregoing, the Collateral Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales,




at any exchange, broker’s board or office of any Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Collateral Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Collateral Agent deems appropriate. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold or to become the licensor of all or any such Collateral, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. For purposes of bidding and making settlement or payment of the purchase price for all or a portion of the Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code of the United States, the Collateral Agent, as agent for and representative of the Secured Parties in accordance with the Credit Agreement, shall be entitled to credit bid and use and apply the Obligations (or any portion thereof) as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale, such amount to be apportioned ratably to the Obligations of the Secured Parties in accordance with their pro rata share of such Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of each Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Each Grantor further agrees, at the Collateral Agent’s request, to assemble the Collateral and make it available to the Collateral Agent at places which the Collateral Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The Collateral Agent shall have the right to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process. The Collateral Agent shall have no obligation to marshal any of the Collateral.
(b) The Collateral Agent shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including, without limitation, reasonable and documented attorneys’ fees and disbursements. Any net Proceeds remaining after such deductions shall be applied in accordance with Section 5.2. If the Collateral Agent sells any of the Collateral upon credit, the relevant Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the relevant Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all




claims, damages and demands it may acquire against any Secured Party arising out of the exercise by it or them of any rights hereunder.
5.4.    Certain Matters Relating to Receivables. The Collateral Agent hereby authorizes each Grantor to collect such Grantor’s Receivables included in the Collateral; provided, however, that the Collateral Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default. If required by the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables included in the Collateral, when collected by any Grantor, (i) shall forthwith (and, in any event, within two (2) Business Days) be deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Collateral Agent if required, in a Collateral Account maintained under the sole dominion and control of the Collateral Agent, subject to withdrawal by the Collateral Agent for the account of the Secured Parties only as provided in Section 5.2, and (ii) until so turned over, shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor.
For the avoidance of doubt, it is understood that the provisions of Section 5.4 shall only be operative when an Event of Default has occurred and is continuing.
5.5.    Effect of Securities Laws. Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of any or all of the Pledged Equity Interests or Pledged Debt Securities by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Equity Interests or the Pledged Debt Securities for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if the Issuer would agree to do so.
5.6.    Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the reasonable and documented fees and disbursements of any attorneys employed by any Secured Party to collect such deficiency.
SECTION 6. POWER OF ATTORNEY AND FURTHER ASSURANCES
6.1.    Collateral Agent’s Appointment as Attorney-in-Fact, Etc. (a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:
(i)    in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys with respect to any Collateral and file any claim or take any other action or proceeding in any court of law or equity or




otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any and all such moneys due with respect to any other Collateral whenever payable;
(ii)    pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or purchase any insurance called for by the terms of this Agreement or the other Loan Documents and pay all or any part of the premiums therefor and the costs thereof;
(iii)    execute, in connection with any sale provided for in Section 5.3 or Section 5.4, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral;
(iv)    in the case of any Intellectual Property constituting Collateral, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Collateral Agent’s and the Secured Parties’ security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby; and
(v)    (1) sign and endorse any assignments, verifications, notices and other documents in connection with any of the Collateral; (2) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (3) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (4) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Agent may deem appropriate; and (5) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and do, at the Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Collateral Agent deems necessary to protect, preserve or realize upon the Collateral and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 6.1(a) to the contrary notwithstanding, the Collateral Agent agrees that, except as provided in Section 6.1(b), it will not exercise any rights under the power of attorney provided for in this Section 6.1(a) unless an Event of Default shall have occurred and be continuing.
(b)    If any Grantor fails to perform or comply with any of its agreements in this Agreement, the Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreements; provided, however, that unless an Event of Default has occurred and is continuing, the Collateral Agent shall not exercise this power without first making written demand on such Grantor and such Grantor failing to promptly comply therewith.
(c)    The expenses of the Collateral Agent incurred in connection with actions undertaken as provided in this Section 6.1 shall be payable by such Grantor to the extent that they would be payable by the Borrower pursuant to Section 11.04(a) of the Credit Agreement.
(d)    Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until a Payment in Full of the Obligations.
6.2.    Authorization of Financing Statements. Each Grantor acknowledges that pursuant to Section 9-509(b) of the UCC and any other applicable law, the Collateral Agent is authorized to file or record financing or continuation statements (including financing statements and continuations covering As-Extracted Collateral to the extent not covered by a Mortgage), and amendments thereto, and other filing or recording




documents or instruments with respect to the Collateral in such form and in such offices as the Collateral Agent reasonably determines appropriate to perfect or maintain the perfection of the security interests of the Collateral Agent under this Agreement. Each Grantor agrees that such financing statements may describe the collateral in the same manner as described in this Agreement or such other description as the Collateral Agent, in its reasonable judgment, determines is necessary or advisable, including using the collateral description “ all personal property ”. A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.
SECTION 7. LIEN ABSOLUTE
7.1.    Security Interest Absolute. All rights of the Collateral Agent and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of, and each Grantor hereby waives, to the extent permitted by law, all rights, claims, and defenses that it might otherwise have (now or in the future) (other than related to payment and performance) with respect to, in each case: (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any renewal or extension of, or any increase in the amount of the Obligations, any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment, supplement, modification or waiver of or any consent to any departure from the Credit Agreement or any other Loan Document (other than this Agreement or, solely with respect to the Borrower, the Credit Agreement) or any Swap Contract, (c) any defense, set-off or counterclaim which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party, (d) any exchange, release or nonperfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations or (e) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Obligations or this Agreement.
7.2.    Continuing Rights. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Grantor, the Collateral Agent may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against Borrower, such Grantor or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from Borrower, such Grantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of Borrower, such Grantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve such Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Secured Party against such Grantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
SECTION 8. THE COLLATERAL AGENT
8.1.    Authority of Collateral Agent. Each Grantor acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the other Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed to be acting as agent for the




Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
8.2.    No Duty on the Part of Collateral Agent or Secured Parties. The powers conferred on the Collateral Agent hereunder are solely to protect the interests of the Secured Parties in the Collateral and shall not impose any duty upon the Collateral Agent or any other Secured Party to exercise any such powers. The Administrative Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession is to comply with Section 9-207 of the UCC. The Collateral Agent and the other Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence, bad faith or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction.
8.3.    Appointment Pursuant to Credit Agreement. The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Lenders and, by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall exercise, or refrain from exercising, any remedies provided for herein in accordance with the terms of the Credit Agreement. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The rights, privileges, protections and immunities in the Credit Agreement for the benefit of the Collateral Agent and the other provisions of the Credit Agreement relating to the Collateral Agent are hereby incorporated herein with respect to the Collateral Agent.
8.4.    Hedge Bank; Cash Management Bank. No Hedge Bank or Cash Management Bank that obtains the benefits of this Agreement, any other Security Document or any Collateral by virtue of the provisions of the Credit Agreement or of any other Security Document, shall have any right to notice of any action or to consent to, direct or object to any action under any Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Agreement to the contrary, the Collateral Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Hedging Agreements or Cash Management Obligations unless the Collateral Agent has received written notice of such Obligations, together with such supporting documentation as the Collateral Agent may request, from the applicable Hedge Bank or Cash Management Bank, as applicable.
SECTION 9. MISCELLANEOUS
9.1.    Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 11.01 of the Credit Agreement. After Payment in Full, the provisions of this Agreement may be waived, amended, supplemented or otherwise modified by a written instrument executed by each affected Grantor and the Collateral Agent.
9.2.    Notices. All notices, requests and demands to or upon the Collateral Agent or any Grantor hereunder shall be effected in the manner provided for in Section 11.02 of the Credit Agreement; provided




that any such notice, request or demand to or upon any Grantor shall be addressed to such Grantor at its notice address set forth on Schedule 7.
9.3.    No Waiver by Course of Conduct; Cumulative Remedies. No Secured Party shall by any act (except by a written instrument pursuant to Section 9.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced to any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
9.4.    [Reserved].
9.5.    Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Secured Parties and their successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement, except through a transaction permitted by the Credit Agreement, without the prior written consent of the Collateral Agent and any attempted assignment, transfer or delegation without such consent shall be null and void.
9.6.    Set-Off. Each Grantor hereby irrevocably authorizes each Secured Party at any time and from time to time pursuant to, and to the extent set forth in, Section 11.02 of the Credit Agreement, upon any amount becoming due and payable hereunder, without notice to such Grantor, any such notice being expressly waived by such Grantor, to set-off and appropriate and apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to such Secured Party hereunder and claims of every nature and description of such Secured Party against such Grantor, in any currency, arising hereunder, under the Credit Agreement or any other Loan Document, as such Secured Party may elect, whether or not such Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. Each Secured Party exercising any right of set-off shall notify the relevant Grantor promptly of any such set-off and the application made by such Secured Party of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Secured Party under this Section 9.6 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Secured Party may have.
9.7.    Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
9.8.    Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction with respect to any Grantor shall, as to such jurisdiction, be ineffective to the extent of such




prohibition or unenforceability without invalidating the remaining provisions hereof with respect to such Grantor, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction with respect to such Grantor. The parties hereto shall endeavor in good- faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
9.9.    Section Headings. The Section headings and Table of Contents used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
9.10.    Integration. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Collateral Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof. There are no promises, undertakings, representations or warranties by any Secured Party relative to the subject matter hereof and thereof not expressly set forth or referred to herein or therein.
9.11.    GOVERNING LAW. THIS AGREEMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12.    Submission to Jurisdiction; Waivers. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS GUARANTY, EACH GRANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE GRANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 11.02 OF THE CREDIT AGREEMENT; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, ARRANGERS, COLLATERAL AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT. EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.




9.13.    Acknowledgments. Each Grantor hereby acknowledges that:
(a)    it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;
(b)    no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents and the provisions of Section 11.11 of the Credit Agreement are incorporated herein by reference, mutatis mutandis , and the relationship between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c)    no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.
9.14.    WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
9.15.    Release.
(a)    Subject to the terms of the Intercreditor Agreements, upon Payment in Full of Obligations, the Collateral shall be automatically released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.
(b)    The Collateral shall otherwise be released from the Liens created hereby on the terms and conditions of and to the extent provided by Section 9.12 of the Credit Agreement.
(c)    Until Payment in Full of the Obligations, each Grantor acknowledges that it is not authorized to file any financing statement amendment or termination statement with respect to any financing statement originally filed in connection herewith without the prior written consent of the Collateral Agent, subject to each Grantor’s rights under Section 9-509(d) of the UCC.




9.16.    Additional Grantors. Each Subsidiary of the Borrower that is required to become a party to this Agreement pursuant to Section 6.16 of the Credit Agreement shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.





IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and Security Agreement to be duly executed and delivered as of the date first above written.
GRANTORS:
CONTURA ENERGY, INC.  
CONTURA ENERGY, LLC  
EMERALD CONTURA, LLC  
DICKENSON-RUSSELL CONTURA, LLC NICHOLAS CONTURA, LLC  
CONTURA MINING HOLDING, LLC CONTURA COAL RESOURCES, LLC CONTURA WYOMING LAND, LLC CONTURA COAL SALES, LLC  
CONTURA ENERGY SERVICES, LLC POWER MOUNTAIN CONTURA, LLC CUMBERLAND CONTURA, LLC  
CONTURA PENNSYLVANIA LAND, LLC CONTURA FREEPORT, LLC  
CONTURA EUROPEAN MARKETING, LLC PARAMONT CONTURA, LLC  
CONTURA PENNSYLVANIA TERMINAL, LLC  
CONTURA CAPP LAND, LLC  
CONTURA COAL WEST, LLC  
CONTURA TERMINAL, LLC
By:
 
 
Name:
 
Title:

SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT - CONTURA
    


COLLATERAL AGENT:
CITIBANK, N.A.,
as Collateral Agent
By:
 
 
Name:
 
Title:

SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT - CONTURA
    


Pledge and Security Agreement
ASSUMPTION AGREEMENT, dated as of        , 20     , made by         (the “ Additional Grantor ”), in favor of CITIBANK, N.A., as collateral agent (in such capacity, the “ Collateral Agent ”) for Secured Parties (as defined in the Pledge and Security Agreement). All capitalized terms not defined herein shall have the meaning ascribed to them in such Pledge and Security Agreement.
W I T N E S S E T H :
WHEREAS, Contura Energy, Inc. (the “ Borrower ”) and certain of its Affiliates (other than the Additional Grantor) have entered into the Pledge and Security Agreement, dated as of April 3, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Pledge and Security Agreement ”) in favor of the Collateral Agent for the ratable benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the Pledge and Security Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Pledge and Security Agreement;
NOW, THEREFORE, IT IS AGREED:
1.    Pledge and Security Agreement. By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 9.16 of the Pledge and Security Agreement, hereby becomes a party to the Pledge and Security Agreement as a Grantor thereunder with the same force and effect as if originally named therein as a Grantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Grantor thereunder. The information set forth in Annex 1-A is true and correct in all material respects as of the date hereof. The Additional Grantor hereby represents and warrants that each of the representations and warranties contained in Section 3 of the Pledge and Security Agreement is true and correct in all material respects (except to the extent qualified as to materiality in which case they are true and correct in all respects) on and as the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date, and the Secured Parties shall be entitled to rely on each of such representations and warranties as if they were fully set forth herein, provided that each reference in each such representation and warranty to any Borrower’s knowledge shall, for purposes of Section 3.1 of the Pledge and Security Agreement, be deemed to be a reference to such Additional Grantor’s knowledge.
2.    Governing Law. THIS ASSUMPTION AGREEMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS ASSUMPTION AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.





IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR],
By:
 
 
Name:
 
Title:




Annex 1-A to Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
Supplement to Schedule 6
Supplement to Schedule 7





Annex 2 to
Pledge and Security Agreement
FORM OF UNCERTIFICATED SECURITIES CONTROL AGREEMENT
This CONTROL AGREEMENT (as amended, supplemented or otherwise modified from time to time, the “ Control Agreement ”) dated as of          ,      ,      is made by and among          , a      corporation (the “ Grantor ”), CITIBANK, N.A., as collateral agent (in such capacity, the “ Collateral Agent ”) for the Secured Parties (as defined in the Pledge and Security Agreement referred to below), and [    ], a Delaware corporation (the “ Issuer ”).
WHEREAS, the Grantor has granted to the Collateral Agent for the benefit of the Secured Parties a security interest in the uncertificated securities of the Issuer owned by the Grantor from time to time (collectively, the “ Pledged Securities ”), and all additions thereto and substitutions and proceeds thereof (collectively, with the Pledged Securities, the “ Collateral ”) pursuant to a Pledge and Security Agreement, dated as of April 3, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Pledge and Security Agreement ”), among the Grantor and the other persons party thereto as grantors in favor of the Collateral Agent. All capitalized terms not defined herein shall have the meaning ascribed to them in such Pledge and Security Agreement.
WHEREAS, the following terms which are defined in Articles 8 and 9 of the Uniform Commercial Code in effect in the State of New York on the date hereof (the “ UCC ”) are used herein as so defined: Adverse Claim, Control, Instruction, Proceeds and Uncertificated Security.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Notice of Security Interest. The Grantor, the Collateral Agent and the Issuer are entering into this Control Agreement to perfect and confirm the priority of the Collateral Agent’s security interest in the Collateral. The Issuer acknowledges that this Control Agreement constitutes written notification to the Issuer of the Collateral Agent’s security interest in the Collateral. The Issuer agrees to promptly make all necessary entries or notations in its books and records to reflect the Collateral Agent’s security interest in the Collateral and, upon request by the Collateral Agent if an Event of Default has occurred and is continuing, to register the Collateral Agent as the registered owner of any or all of the Pledged Securities. The Issuer acknowledges that the Collateral Agent has control over the Collateral.
SECTION 2. Collateral. The Issuer hereby represents and warrants to, and agrees with the Grantor and the Collateral Agent that (i) the terms of any limited liability company interests or partnership interests included in the Collateral from time to time shall expressly provide that they are securities governed by Article 8 of the Uniform Commercial Code in effect from time to time in the State of [    ], (ii) the Pledged Securities are uncertificated securities, (iii) the Issuer’s jurisdiction is the State of [    ] or such other state of which the Issuer has notified the Collateral Agent promptly of a change thereto and (iv) Schedule 2 contains a true and complete description of the Pledged Securities as of the date hereof.
SECTION 3. Control. If an Event of Default has occurred and is continuing, the Issuer hereby agrees, upon written direction from the Collateral Agent without further consent from the Grantor, (a) to comply with all instructions and directions of any kind originated by the Collateral Agent concerning the Collateral, to liquidate or otherwise dispose of the Collateral as and to the extent directed by the Collateral Agent and to pay over to the Collateral Agent all proceeds without any set-off or deduction, and (b) except




as otherwise directed by the Collateral Agent, not to comply with the instructions or directions of any kind originated by the Grantor or any other person.
SECTION 4. Other Agreements. In the event of any conflict between the provisions of this Control Agreement and any other agreement governing the Pledged Securities or the Collateral, the provisions of this Control Agreement shall control.
SECTION 5. Protection of Issuer. The Issuer may rely and shall be protected in acting upon any notice, instruction or other communication that it reasonably believes to be genuine and authorized.
SECTION 6. Termination. This Control Agreement shall terminate automatically upon receipt by the Issuer of written notice executed by the Collateral Agent that (i)    the Payment in Full of the Obligations has occurred, (ii) all of the Collateral has been released or (iii) the Pledged Securities cease to be Uncertificated Securities, whichever is sooner, and the Issuer shall thereafter be relieved of all duties and obligations hereunder.
SECTION 7. Notices.    All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three (3) days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, to the Grantor’s and the Collateral Agent’s addresses as set forth in the Pledge and Security Agreement, and to the Issuer’s address as set forth below, or to such other address as any party may give to the others in writing for such purpose:
[Name of Issuer]
[Address of Issuer]
Attention:     
Telephone: ( ) -     
Telecopy: ( ) -     
SECTION 8. Amendments in Writing. None of the terms or provisions of this Control Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the parties hereto.
SECTION 9. Entire Agreement. This Control Agreement and the Pledge and Security Agreement constitute the entire agreement and supersede all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.
SECTION 10. Execution in Counterparts. This Control Agreement may be executed in any number of counterparts by one or more parties to this Control Agreement and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Control Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 11. Successors and Assigns. This Control Agreement shall be binding upon the successors and assigns of each of the parties hereto and shall inure to the benefit of the parties hereto and their respective successors and assigns, provided that neither the Grantor nor the Issuer may assign, transfer or delegate any of its rights or obligations under this Control Agreement, except through a transaction permitted by the Credit Agreement, without the prior written consent of the Collateral Agent and any such assignment, transfer or delegation without such consent shall be null and void.




SECTION 12. Severability. Any provision of this Control Agreement which is prohibited or unenforceable in any jurisdiction with respect to the Grantor and Issuer shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof with respect to the Grantor and Issuer, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 13. Section Headings. The Section headings used in this Control Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
SECTION 14. Submission to Jurisdiction; Waivers. (a) The terms of Section 9.12 of the Pledge and Security Agreement with respect to submission to jurisdiction, waiver of venue and service of process are incorporated herein by reference mutatis mutandis and (b) each party hereto agrees to (i) such terms and (ii) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover any special, exemplary, punitive or consequential damages; provided that this waiver shall not limit the reimbursement and indemnification obligations of the Grantors under Section 9.4(b) of the Pledge and Security Agreement.
SECTION 15. GOVERNING LAW AND JURISDICTION. THIS CONTROL AGREEMENT HAS BEEN DELIVERED TO AND ACCEPTED BY THE COLLATERAL AGENT AND WILL BE DEEMED TO BE MADE IN THE STATE OF NEW YORK. THIS CONTROL AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 16. WAIVER OF JURY TRIAL. The terms of Section 9.14 of the Pledge and Security Agreement are incorporated herein by reference mutatis mutandis and the parties hereto agree to such terms.




IN WITNESS WHEREOF, each of the undersigned has caused this Control Agreement to be duly executed and delivered as of the date first above written.
[NAME OF GRANTOR]
By:
 
 
Name:
 
Title:

CITIBANK, N.A., as Collateral Agent
By:
 
 
Name:
 
Title:

[NAME OF ISSUER]
By:
 
 
Name:
 
Title:




EXHIBIT I
TO
CREDIT AGREEMENT
FORM OF COLLATERAL QUESTIONNAIRE
[SEE ATTACHED]




[FORM OF]
COLLATERAL QUESTIONNAIRE SUPPLEMENT
, 20[ ]
Reference is made to that certain Credit Agreement dated as of April 3, 2017 (as amended, restated, supplemented, reaffirmed or otherwise modified from time to time, the “ Credit Agreement ”), by and among, inter alios, Contura Energy, Inc., a Delaware corporation (the “ Company ”), each of the other borrowers party thereto, and Citibank, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not defined herein shall have the meaning assigned to such terms in the Uniform Commercial Code or the Credit Agreement, as applicable. As used herein, the term “ Collateral ” shall mean “ Collateral ” as defined in the Security Agreement.
The undersigned, a Responsible Officer of the Company, hereby certifies, solely in the capacity of an officer and not with any individual capacity, with respect to itself and each other Borrower (together with the Company, each a “ Grantor ”), as of the date hereof, as follows:
1.    Name.    The exact legal name of each Grantor as that name appears on its Certificate of Formation (or equivalent) is attached hereto as Schedule 1.
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Source:    UCC §9-503(a).
Other Identifying Factors.
(a)    The mailing address of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(A).
(b)    If different from its mailing address, each Grantor’s place of business or, if more than one, its chief executive office is attached hereto as Schedule 1.
Source:    UCC §§9-301(1) and 9-307.
(c)    The type of organization of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(d)    The jurisdiction of each Grantor’s organization is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(e)    Each Grantor’s state issued organizational identification number is attached hereto as Schedule 1.
Source:    UCC §9-9-516(b)(5)(C).




2.    Other Names, Etc.
(a)    The following is a list of all other names (including trade names or similar appellations) used by any Grantor, or any other business or organization to which any Grantor became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Source:    UCC §9-507(c); former UCC §9-402(7).
(b)    The following is a list of the information required in Section 1 above for any other business or organization to which any Grantor became the successor by merger, consolidation, acquisition (other than a transaction disclosed pursuant to Section 10 below), change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Source:    UCC §9-316.
3.    Owned and Leased Real Property. Attached hereto as Schedule 3 is a complete list of all Material Real Property (as defined in the Credit Agreement) of any Grantor.
4.    Other Current Locations.
(a)    The following are all other locations in the United States of America at which any Grantor maintains any books or records relating to any of the Collateral consisting of Accounts, Instruments, Chattel Paper, General Intangibles or Goods:
•    The books and records for each of the Grantors are located at the addresses set forth on Schedule 1 attached hereto.
Source:    UCC §§9-301(2) and (3) and 9-102(a)(2).
(b)    The following are all other leased locations in the United States of America where any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Grantors’ tangible personal property (except for Equipment and Inventory in transit, undergoing repairs, or replacements) is located:
Address
City
Zip
County
State
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]




[Identify changes below]
Source:    UCC §§9-301(2) and (3).
(c)    The following are the names and addresses of all persons or entities other than the any Grantor, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Collateral.
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Source:    UCC §§9-301(2) and (3), 9-312 and 9-313; former UCC §§9-103(1), 9-103(4), 9-304(2) and 9-304(3).
5.    Prior Locations.
(a) Set forth below is the information required by §4(a) or (b) with respect to each location or place of business previously maintained by any Grantor at any time during the past four months:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Source:    UCC §§9-316.
6.    Fixtures. Attached hereto as Schedule 6 is the information required by UCC §9- 502(b) or former UCC §9-402(5) of each state in which any of the Collateral consisting of fixtures are or are to be located and the name and address of each real estate recording office where a mortgage on the real estate on which such fixtures are or are to be located would be recorded.
Source:    UCC §§9-502(b) and 9-516(b)(3)(D).
7.    Intellectual Property. Attached hereto as Schedule 7 is a complete list of all United States patents, copyrights, trademarks, trade names and service marks registered or for which applications are pending in the name of any Grantor.
8.    Securities; Instruments. Attached hereto as Schedule 8 is a complete list of all stocks, bonds, debentures, notes and other securities and investment property owned by any Grantor (provide name of issuer, type of organization which issued such equity interests (e.g. corporation, limited liability company, partnership or trust) and a description of the security, including number of shares, total shares outstanding, percentage of interest pledged, certificate number (if uncertificated, please so indicate) and par value).
9.    Bank Accounts. Attached hereto as Schedule 9 is a complete list of all bank accounts (including deposit, securities and commodities accounts) maintained by any Grantor, other than Excluded Accounts (as defined in the Credit Agreement) (provide name and address of depository bank, type of account and account number).




10.    Unusual Transactions. Except for those purchases, acquisitions and other transactions described in Section 2 or on Schedule 10 attached hereto, all of the Collateral has been originated by the Grantors (or any of them) in the ordinary course of the Grantors' business or consists of goods which have been acquired by the Grantors (or any of them) in the ordinary course from a person in the business of selling goods of that kind.
Source:    UCC §§9-102(a)(64), 9-203(f), 9-301(2), 9-315(a) and 9-316).
11.    Commercial Tort Claims. Attached hereto as Schedule 11 is a brief written description of each and every commercial tort claim (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate) which the Grantors hold.
Source:    UCC §9-108(e)(1).
12.    Letter of Credit Rights. The following is a true and correct list of the Grantors’ letter of credit rights (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate), including a brief description thereof:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
13.    “ As Extracted ” Collateral. The following is a complete list of all the locations where any Grantor owns, leases or has an interest in any Mine (as defined in the Credit Agreement):
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
14.    Timber to be Cut. The following is a complete list of all the locations where any Grantor owns goods that are timber to be cut:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]




IN    WITNESS    WHEREOF, the undersigned    hereto has    caused this Collateral Questionnaire to be executed as of the date first referenced above.
CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:




SCHEDULE 1
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





SCHEDULE 3
Material Real Property
Material Owned Property
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





Material Leased Property
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





SCHEDULE 6
Fixtures
See Schedule 3.





SCHEDULE 7
PATENTS AND PATENT APPLICATIONS
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
TRADEMARK APPLICATIONS AND REGISTRATIONS
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
COPYRIGHT APPLICATIONS AND REGISTRATIONS
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





SCHEDULE 8
Pledged Membership Interests
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Owned Equity in Joint Ventures (not pledged):
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Debt Securities & Instruments:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





SCHEDULE 9
Bank Accounts
Deposit Accounts:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





SCHEDULE 10
Unusual Transactions
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





SCHEDULE 11
Commercial Tort Claims
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]





EXHIBIT J
TO
CREDIT AGREEMENT
FORM OF COLLATERAL QUESTIONNAIRE SUPPLEMENT
[SEE ATTACHED]






[FORM OF]
COLLATERAL QUESTIONNAIRE
, 2017
Reference is made to that certain Pledge and Security Agreement dated as of April 3, 2017 (as amended, restated, supplemented, reaffirmed or otherwise modified from time to time, the “ Security Agreement ”), by and among Contura Energy, Inc., a Delaware corporation (the “ Company ”), each of the other grantors party thereto, and Citibank, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not defined herein shall have the meaning assigned to such terms in the Uniform Commercial Code. As used herein, the term “ Collateral ” shall mean “ Collateral ” as defined in the Security Agreement.
The undersigned, the Executive Vice President, Chief Financial Officer and Treasurer of the Company, hereby certifies, solely in the capacity of an officer and not with any individual capacity, with respect to itself and each of its subsidiaries named as a “ Grantor ” in the Security Agreement (together with the Company, each a “ Grantor ”), as of the date hereof, as follows:
1.    Name.    The exact legal name of each Grantor as that name appears on its Certificate of Formation (or equivalent) is attached hereto as Schedule 1.
Source:    UCC §9-503(a).
Other Identifying Factors.
(a)    The mailing address of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(A).
(b)    If different from its mailing address, each Grantor’s place of business or, if more than one, its chief executive office is attached hereto as Schedule 1.
Source:    UCC §§9-301(1) and 9-307.
(c)    The type of organization of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(d)    The jurisdiction of each Grantor’s organization is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(e)    Each Grantor’s state issued organizational identification number is attached hereto as Schedule 1.
Source:    UCC §9-9-516(b)(5)(C).
2.    Other Names, Etc.
(a)    The following is a list of all other names (including trade names or similar appellations) used by any Grantor, or any other business or organization to which any Grantor became the successor by




merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
Source:    UCC §9-507(c); former UCC §9-402(7).
(b)    The following is a list of the information required in Section 1 above for any other business or organization to which any Grantor became the successor by merger, consolidation, acquisition (other than a transaction disclosed pursuant to Section 10 below), change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
Source:    UCC §9-316.
3.    Owned and Leased Real Property. Attached hereto as Schedule 3 is a complete list of all Material Real Property (as defined in the Credit Agreement) of any Grantor.
4.    Other Current Locations.
(a)    The following are all other locations in the United States of America at which any Grantor maintains any books or records relating to any of the Collateral consisting of Accounts, Instruments, Chattel Paper, General Intangibles or Goods:
•    The books and records for each of the Grantors are located at the addresses set forth on Schedule 1 attached hereto.
Source:    UCC §§9-301(2) and (3) and 9-102(a)(2).
(b)    The following are all other leased locations in the United States of America where any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Grantors’ tangible personal property (except for Equipment and Inventory in transit, undergoing repairs, or replacements) is located:
Address
City
Zip
County
State
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Source:    UCC §§9-301(2) and (3).
(c)    The following are the names and addresses of all persons or entities other than the any Grantor, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Collateral.
Source:    UCC §§9-301(2) and (3), 9-312 and 9-313; former UCC §§9-103(1), 9-103(4), 9-304(2) and 9-304(3).
5.    Prior Locations.
(a) Set forth below is the information required by §4(a) or (b) with respect to each location or place of business previously maintained by any Grantor at any time during the past four months:




Source:    UCC §§9-316.
6.    Fixtures. Attached hereto as Schedule 6 is the information required by UCC §9- 502(b) or former UCC §9-402(5) of each state in which any of the Collateral consisting of fixtures are or are to be located and the name and address of each real estate recording office where a mortgage on the real estate on which such fixtures are or are to be located would be recorded.
Source:    UCC §§9-502(b) and 9-516(b)(3)(D).
7.    Intellectual Property. Attached hereto as Schedule 7 is a complete list of all United States patents, copyrights, trademarks, trade names and service marks registered or for which applications are pending in the name of any Grantor.
8.    Securities; Instruments. Attached hereto as Schedule 8 is a complete list of all stocks, bonds, debentures, notes and other securities and investment property owned by any Grantor (provide name of issuer, type of organization which issued such equity interests (e.g. corporation, limited liability company, partnership or trust) and a description of the security, including number of shares, total shares outstanding, percentage of interest pledged, certificate number (if uncertificated, please so indicate) and par value).
9.    Bank Accounts. Attached hereto as Schedule 9 is a complete list of all bank accounts (including deposit, securities and commodities accounts) maintained by any Grantor, other than Excluded Accounts (as defined in the Credit Agreement) (provide name and address of depository bank, type of account and account number).
10.    Unusual Transactions. Except for those purchases, acquisitions and other transactions described in Section 2 or on Schedule 10 attached hereto, all of the Collateral has been originated by the Grantors (or any of them) in the ordinary course of the Grantors' business or consists of goods which have been acquired by the Grantors (or any of them) in the ordinary course from a person in the business of selling goods of that kind.
Source:    UCC §§9-102(a)(64), 9-203(f), 9-301(2), 9-315(a) and 9-316).
11.    Commercial Tort Claims. Attached hereto as Schedule 11 is a brief written description of each and every commercial tort claim (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate) which the Grantors hold.
Source:    UCC §9-108(e)(1).
12.    Letter of Credit Rights. The following is a true and correct list of the Grantors’ letter of credit rights (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate), including a brief description thereof:
13.    “ As Extracted ” Collateral. The following is a complete list of all the locations where any Grantor owns, leases or has an interest in any Mine (as defined in the Credit Agreement):
See Schedule 5.20 to the Credit Agreement.
14.    Timber to be Cut. The following is a complete list of all the locations where any Grantor owns goods that are timber to be cut:




IN    WITNESS    WHEREOF, the undersigned    hereto has    caused this Collateral Questionnaire to be executed as of the date first referenced above.

CONTURA ENERGY, INC.
By:
 
 
Name:
 
Title:






SCHEDULE 1






SCHEDULE 3
Material Real Property
Material Owned Property






Material Leased Property






SCHEDULE 6
Fixtures
See Schedule 3.





SCHEDULE 7
PATENTS AND PATENT APPLICATIONS
TRADEMARK APPLICATIONS AND REGISTRATIONS
COPYRIGHT APPLICATIONS AND REGISTRATIONS





SCHEDULE 8
Pledged Membership Interests
Owned Equity in Joint Ventures (not pledged):
Debt Securities & Instruments:





SCHEDULE 9
Bank Accounts
Deposit Accounts:





SCHEDULE 10
Unusual Transactions





SCHEDULE 11
Commercial Tort Claims





EXHIBIT K
FORM OF
ASSUMPTION AGREEMENT
(this “Assumption Agreement”)
ASSUMPTION AGREEMENT, dated as of    , 20    , made by     , a    [corporation] [limited liability company] [limited partnership] (the “ Additional Borrower ”), in favor of Citibank, N.A., as administrative agent (in such capacity, the “ Administrative Agent ”) for the banks and other financial institutions (the “ Lenders ”) parties to the Credit Agreement referred to below. All capitalized terms not defined herein shall have the meaning ascribed to them in such Credit Agreement.
WITNESSETH:
WHEREAS, Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “ Existing Borrowers ”, and together with the Additional Borrower, collectively, the “ Borrowers ”), the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and the Administrative Agent have entered into that certain Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”);
WHEREAS, the Credit Agreement provides for a guarantee by the Guarantors in favor of the Administrative Agent for the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Borrower to become a party to thereto as a borrower and guarantee the Obligations thereunder pursuant to Article 10 therefor; and
WHEREAS, the Additional Borrower has agreed to execute and deliver this Assumption Agreement in order to become a party to the Credit Agreement and the Security Agreement;
NOW, THEREFORE, IT IS AGREED:
1.    By executing and delivering this Assumption Agreement, the Additional Borrower, as provided in Section 6.12 of the Credit Agreement, hereby becomes a party to the Credit Agreement as both a Borrower and a Guarantor thereunder with the same force and effect as if originally named therein as a Borrower and a Guarantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Borrower and a Guarantor thereunder.
2.    The Additional Borrower hereby represents and warrants that (i) each of the representations and warranties, to the extent applicable to a Borrower and a Guarantor, contained in the Credit Agreement and in each other Loan Document, is true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date and (ii) as of the date hereof, no Default or Event of Default has occurred or is continuing, or would result from such Person becoming an Borrower and a Guarantor under the Credit Agreement.




3.    The Additional Borrower agrees that the guarantees of the Obligations contained in the Credit Agreement will apply to the Obligations of the Additional Borrower, to the extent applicable in accordance with the terms thereof. Upon execution of this Assumption Agreement by the Additional Borrower and the Administrative Agent, and the satisfaction of the conditions set forth in Section 6.12 of the Credit Agreement, the Additional Borrower (i) shall be a party to the Credit Agreement and the other Loan Documents and shall constitute a “ Borrower ” and a “ Guarantor ” for all purposes thereof with the same force and effect as if originally named a Borrower and a Guarantor therein and (ii) agrees to be bound by all provisions of the Credit Agreement and the other Loan Documents and shall have all the rights and obligations of a Borrower or a Guarantor thereunder.
4.    The Additional Borrower hereby ratifies and agrees to be bound by Section 11.18 (Joint and Several Liability) of the Credit Agreement and the appointment of the Borrower Representative under Section 11.21 of the Credit Agreement.
5.    Governing Law. THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]






IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL BORROWER]
By:
 
 
Name:
 
Title:

CITIBANK, N.A.,
as Administrative Agent
By:
 
 
Name:
 
Title:




EXHIBIT L
TO
CREDIT AGREEMENT
FORM OF SOLVENCY CERTIFICATE
_____________, _____
THE UNDERSIGNED CHIEF FINANCIAL OFFICER OF THE COMPANY (AS DEFINED BELOW) DOES HEREBY CERTIFY (IN SUCH CAPACITY AND NOT IN AN INDIVIDUAL CAPACITY) THAT, AS OF THE DATE HEREOF, AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED BY THE CREDIT AGREEMENT (AS DEFINED BELOW):
1.    I am the chief financial officer of Contura Energy, Inc., a Delaware corporation (“ Company ”).
2.    Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Company, the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
3.    I have reviewed the terms of the Credit Agreement and the definitions and provisions contained in the Credit Agreement relating thereto, together with each of the Loan Documents, and I have made, or have caused to be made under my supervision, such reasonable examination as is necessary to enable me to express an informed opinion as to the matters referred to herein.
4.    Based upon my review and examination described in paragraph 3 above, I certify that as of the date hereof, after giving effect to the consummation of the Transactions and the other transactions contemplated by the Loan Documents, the Company and its Restricted Subsidiaries are, on a consolidated basis, Solvent.
For purposes of this Certificate, “ Solvent ” means, with respect to any Person, that as of the date of determination, both (i)(a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date or with respect to any transaction contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “ solvent ” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).
[SIGNATURE PAGE FOLLOWS]





The foregoing certifications are made and delivered as of the date first set forth above.


By:
 
 
Name:
 
Title: Chief Financial Officer

[Signature Page to Solvency Certificate]





EXHIBIT M-1
TO
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Contura Energy, Inc. (the “ Company ”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.






[NAME OF PARTICIPANT]
By:
 
 
Name:
 
Title:
Date:
 

[Signature Page to U.S. Tax Compliance Certificate]





EXHIBIT M-2
TO
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Contura Energy, Inc. (the “ Company ”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.






[NAME OF PARTICIPANT]
By:
 
 
Name:
 
Title:
Date:
 

[Signature Page to U.S. Tax Compliance Certificate]






EXHIBIT M-3
TO
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Contura Energy, Inc. (the “ Company ”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.






[NAME OF PARTICIPANT]
By:
 
 
Name:
 
Title:
Date:
 

[Signature Page to U.S. Tax Compliance Certificate]




EXHIBIT M-4
TO
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Contura Energy, Inc. (the “ Company ”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Company with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.






[NAME OF PARTICIPANT]
By:
 
 
Name:
 
Title:
Date:
 

[Signature Page to U.S. Tax Compliance Certificate]



Exhibit 10.4
EXECUTION VERSION

FIRST AMENDMENT TO ASSET-BASED REVOLVING CREDIT AGREEMENT

THIS FIRST AMENDMENT TO ASSET-BASED REVOLVING CREDIT AGREEMENT (this “ Amendment ”) is made and entered into as of June 9, 2017, by and among CONTURA ENERGY, INC., a Delaware corporation (the “ Company ”), certain subsidiaries of the Company identified as borrowers under the Credit Agreement referred to below (together with the Company, each a “ Borrower ” and collectively, the “ Borrowers ”), the Lenders (as defined below) that are parties hereto, and CITIBANK, N.A., in its capacity as administrative agent (the “ Administrative Agent ”) and collateral agent (the “ Collateral Agent ”) for the Lenders.

W I T N E S S E T H :

WHEREAS, the Borrowers, the several banks and other financial institutions party thereto (collectively, the “ Lenders ”), the Administrative Agent and the Collateral Agent are parties to that certain Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as amended, supplemented and modified from time to time and in effect immediately prior to the date hereof, the “ Credit Agreement ”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement as amended hereby), pursuant to which the Lenders have made certain financial accommodations available to the Borrowers; and

WHEREAS, the Borrowers have requested that the Lenders, the Administrative Agent and the Collateral Agent amend certain provisions of the Credit Agreement in order to permit the Company to make a one-time dividend, and subject to the terms and conditions hereof, the Lenders executing this Amendment are willing to do so;

NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of which are acknowledged, the Borrowers, the Lenders executing this Amendment, the Administrative Agent and the Collateral Agent agree as follows:

1. Amendments to Credit Agreement .

(a)    Section 1.01 of the Credit Agreement is hereby amended by inserting the following defined terms therein in appropriate alphabetical order:

“‘ Available Amount ” means the “Available Amount” as defined in the Term Loan Credit Agreement as in effect on the First Amendment Effective Date.”

“‘ First Amendment Effective Date ” means June 9, 2017.”

(b)    Section 7.02(l) of the Credit Agreement is hereby amended and restated in its entirety as follows:

“(l) additional Investments by the Company or any Restricted Subsidiary (i) in an aggregate amount not to exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets plus (ii) an amount equal to the Available Amount, so long as the Payment Conditions are satisfied at the time the relevant Investment is consummated.”

(c)    Section 7.06 of the Credit Agreement is hereby amended by amending and restating clause (e) in its entirety as follows:

“(e) so long as no Event of Default shall have occurred and be continuing or would result therefrom and the Payment Conditions have been satisfied at the time such

1

Restricted Payment is made, the Company and its Subsidiaries may make Restricted Payments in an amount not to exceed (i) the remainder (if positive) of (1) $20,000,000 less (2) the aggregate amount of any Restricted Payment made pursuant to Section 7.06(n) , plus (ii) the Available Amount;”

(d)    Section 7.06 of the Credit Agreement is hereby further amended by (i) deleting the word “and” at the end of clause (l) thereof; (ii) deleting the period at the end of clause (m) thereof and replacing it with “; and”; and (iii) inserting a new clause (n) at the end thereof as follows:

“(n) the Company may (i) no later than 45 days after the First Amendment Effective Date, declare and pay a one-time cash dividend or distribution from unencumbered cash on hand to its shareholder, (ii) no later than December 31, 2017, purchase, redeem or otherwise acquire Equity Interests issues by it, or (iii) any combination of the foregoing, in an aggregate amount for all such transactions not to exceed $150,000,000 so long the Payment Conditions have been satisfied at the time such Restricted Payment is made.”

2. Effectiveness of Amendment . Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that the amendment contained herein shall not become effective, and the Borrowers shall have no rights under this Amendment, until the Administrative Agent shall have received:

(a)      this Amendment duly executed by the Borrowers, the Required Lenders, the Administrative Agent and the Collateral Agent;

(b)      a certificate signed by a Responsible Officer of the Company certifying that as of the effective date of this Amendment, (i) after giving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;

(c)      an amendment to the Term Loan Credit Agreement in the form attached hereto as Exhibit A, duly executed by the Required Lenders (as defined in the Term Loan Credit Agreement) and the Borrowers and effective in accordance with its terms; and

(d)      reimbursement or payment of the costs and expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment or otherwise outstanding under the Credit Agreement, including, without limitation, the reasonable fees and out-of-pocket expenses of outside counsel for the Administrative Agent.

3. Representations and Warranties . To induce the Lenders, the Administrative Agent and the Collateral Agent to enter into this Amendment, each of the Loan Parties represents and warrants to the Lenders, the Administrative Agent and the Collateral Agent that:

(a)    The execution, delivery and performance by such Loan Party of this Amendment are within its organizational powers and have been duly authorized by all necessary organizational and, if required, shareholder, partner or member action. This Amendment has been duly executed and delivered by such Loan Party and constitutes a valid and binding obligation of such Loan Party, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.


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(b)    The execution, delivery and performance by such Loan Party of this Amendment (a) do not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect, (b) will not violate any Requirement of Law or any judgment, order or ruling of any Governmental Authority, in each case, applicable to such Loan Party, (c) will not violate the terms of such Loan Party’s Organizational Documents, (d) will not violate or result in a default under any Contractual Obligation of such Loan Party or any of its assets or give rise to a right thereunder to require any payment to be made by such Loan Party and (e) will not result in the creation or imposition of any Lien on any asset of such Loan Party, except Liens (if any) created under the Loan Documents.

(c)    After giving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and no Default or Event of Default has occurred and is continuing as of the date hereof.

4. Reaffirmations and Acknowledgments . Each Loan Party does hereby adopt, ratify, and confirm the Credit Agreement and the other Loan Documents, as amended hereby and its obligations thereunder. Each of the Loan Parties hereby acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect, except as expressly amended hereby, notwithstanding the amendments contained herein.

5. Effect of Amendment . Except as set forth expressly herein, all terms of the Credit Agreement, as amended hereby, and the other Loan Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the Borrowers to the Lenders and the Administrative Agent. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement. Any reference in any Loan Document to the Credit Agreement (including “thereunder”, “thereof” or other words of like import referring to the Credit Agreement) shall be a reference to the Credit Agreement as amended by this Amendment. This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement.

6. Governing Law . This Amendment and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York (without giving effect to the conflict of law principles thereof except for Sections 5-1401 and 5-1402 of the New York General Obligations Law) and all applicable federal laws of the United States of America.

7. No Novation . This Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard thereto.

8. Counterparts . This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof.

9. Costs and Expenses . The Borrowers agree to pay all costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment which are payable pursuant to Section 11.04 of the Credit Agreement.

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10. Binding Nature . This Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and assigns.

11. Entire Understanding . This Amendment sets forth the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto.

[ Signature Pages Follow ]


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

BORROWERS:
 
 
 
CONTURA ENERGY, INC.
 
 
 
By:
/s/ C. Andrew Eidson
 
Name:   
C. Andrew Eidson
 
Title:   
Executive Vice President, Chief Financial Officer and Treasurer
 
 
 
CONTURA ENERGY, LLC
 
 
 
By:
/s/ C. Andrew Eidson
 
Name:   
C. Andrew Eidson
 
Title:   
Manager and President
 
 
 
CONTURA ENERGY SERVICES, LLC
 
 
 
By:
/s/ C. Andrew Eidson
 
Name:   
C. Andrew Eidson
 
Title:   
Executive Vice President and Chief Financial Officer
 
 
 
CONTURA MINING HOLDING, LLC
 
 
 
By:
/s/ C. Andrew Eidson
 
Name:   
C. Andrew Eidson
 
Title:   
Executive Vice President, Chief Financial Officer and Treasurer


[Signature Page to First Amendment to ABL Credit Agreement]

EMERALD CONTURA, LLC
DICKENSON-RUSSELL CONTURA, LLC
NICHOLAS CONTURA, LLC
CONTURA COAL RESOURCES, LLC
CONTURA WYOMING LAND, LLC
CONTURA COAL SALES, LLC
POWER MOUNTAIN CONTURA, LLC
CUMBERLAND CONTURA, LLC
CONTURA PENNSYLVANIA LAND, LLC
CONTURA FREEPORT, LLC
CONTURA EUROPEAN MARKETING, LLC
PARAMONT CONTURA, LLC
CONTURA PENNSYLVANIA TERMINAL, LLC
CONTURA CAPP LAND, LLC
CONTURA COAL WEST, LLC
CONTURA TERMINAL, LLC

By:
/s/ C. Andrew Eidson
 
Name:   
C. Andrew Eidson
 
Title:   
Vice President and Treasurer


[Signature Page to First Amendment to ABL Credit Agreement]

CITIBANK, N.A. , as Administrative Agent, Lender,
L/C Issuer and Swingline Lender
 
 
 
By:
/s/ Allister Chan
 
Name:   
Allister Chan
 
Title:   
Vice President



[Signature Page to First Amendment to ABL Credit Agreement]

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH ,   as a Lender and L/C Issuer
 
 
 
By:
/s/ Doreen Barr
 
Name:   
Doreen Barr
 
Title:   
Authorized Signatory
 
 
 
By:
/s/ Szymon Ordys
 
Name:   
Szymon Ordys
 
Title:   
Authorized Signatory


[Signature Page to First Amendment to ABL Credit Agreement]

BMO HARRIS BANK N.A. ,   as a Lender and L/C Issuer
 
 
 
By:
/s/ Jason Hoefler
 
Name:   
Jason Hoefler
 
Title:   
Managing Director


[Signature Page to First Amendment to ABL Credit Agreement]

JEFFERIES FINANCE LLC ,   as a Lender
 
 
 
By:
/s/ J. Paul McDonnell
 
Name:   
J. Paul McDonnell
 
Title:   
Managing Director



[Signature Page to First Amendment to ABL Credit Agreement]

UBS AG, STAMFORD BRANCH ,   as a Lender
 
 
 
By:
/s/ Craig Pearson
 
Name:   
Craig Pearson
 
Title:   
Associate Director
 
 
 
By:
/s/ Denise Bushee
 
Name:   
Denise Bushee
 
Title:   
Associate Director



[Signature Page to First Amendment to ABL Credit Agreement]

WEBSTER BUSINESS CREDIT CORPORATION ,   as a Lender
 
 
 
By:
/s/ Harvey Winter
 
Name:   
Harvey Winter
 
Title:   
SVP


[Signature Page to First Amendment to ABL Credit Agreement]
Exhibit 10.5






LOAN AGREEMENT

dated as of July 26, 2016

by and between

ANR, INC.
as Borrower

and
CONTURA ENERGY, INC.
as Lender





    


Article 1
Definitions
Section 1.01.
Definitions
1
Article 2
Credit Facility
Section 2.01.
Commitment to Make Loans
8
Section 2.02.
Promissory Note
9
Section 2.03.
Use of Proceeds
9
Section 2.04.
Repayment
9
Section 2.05.
Interest
9
Section 2.06.
Loans
9
Section 2.07.
Termination and Reduction of Commitment
10
Section 2.08.
Prepayment; Repayment
10
Section 2.09.
Payments
10
Section 2.10.
Mandatory Prepayments
10
Article 3
Representations and Warranties
Section 3.01.
Organization and Good Standing
11
Section 3.02.
Power and Authority: Validity of Agreement
11
Section 3.03.
No Violation of Laws or Agreements
11
Section 3.04.
Compliance
11
Section 3.05.
Litigation
12
Section 3.06.
Environmental Matters
12
Section 3.07.
Title to Assets
12
Section 3.08.
Accuracy of Information
12
Section 3.09.
Consents
12
Section 3.10.
Use of Proceeds
12
Section 3.11.
Anti-Corruption Laws and Sanctions
13
Article 4
Conditions
Section 4.01.
Effectiveness
13
Section 4.02.
Additional Condition to Each Loan
13
Article 5
Affirmative Covenants
Section 5.01.
Good Standing and Government Compliance
14
Section 5.02.
Financial Statements, Reports. Certificates
14
Section 5.03.
Taxes
15
Section 5.04.
Insurance
16
Section 5.05.
[Reserved]
16
Section 5.06.
Maintenance of Properties
16
Section 5.07.
Additional Guarantors
16

    


Section 5.08.
State Settlements
16
Section 5.09.
Compliance with Leases
16
Article 6
Negative Covenants
Section 6.01.
Change in Location; Change in Business
16
Section 6.02.
Mergers or Acquisitions
17
Section 6.03.
Distributions
17
Section 6.04.
Transactions with Affiliates
18
Section 6.05.
Use of Proceeds
18
Article 7
Default
Section 7.01.
Events of Default
18
Section 7.02.
Rights and Remedies
20
Section 7.03.
Remedies Cumulative; No Waiver
20
Section 7.04.
Demand; Protest
20
Article 8
Guarantee
Section 8.01.
Guarantee
20
Section 8.02.
Guarantee of Payment
20
Section 8.03.
No Limitations, etc
21
Section 8.04.
Reinstatement
22
Section 8.05.
Agreement to Pay; Subrogation and Subordination
22
Section 8.06.
Information
23
Article 9
Miscellaneous
Section 9.01.
Indemnification; Release; Expenses
23
Section 9.02.
Binding and Governing Law; Jurisdiction
24
Section 9.03.
Payment on Non-Business Days
24
Section 9.04.
Severability
24
Section 9.05.
Counterparts
24
Section 9.06.
Notices
25
Section 9.07.
Amendments, Etc
25
Section 9.08.
Waiver of Jury Trial
25

Exhibits
Exhibit A    Form of Promissory Note
Exhibit B    Form of Loan Notice
Exhibit C    Form of Compliance Certificate

Schedules

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Schedule I    Existing PNC Letters of Credit



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LOAN AGREEMENT
THIS LOAN AGREEMENT is made as of the 26 day of July, 2016, by and among ANR, Inc., a Delaware corporation (“ Borrower ”), the Guarantors (as hereinafter defined) party hereto and Contura Energy, Inc. (“ Lender ”).
PREAMBLE
WHEREAS, on August 3, 2015 (the “ Petition Date ”), Alpha Natural Resources, Inc., a Delaware corporation and certain of its Subsidiaries each filed voluntary petitions for relief under chapter 11 the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”) and commenced their chapter 11 cases, which have been jointly administered under Case No. 15-99896-KGH (collectively, “ Cases ”); and
WHEREAS, on the Approved Plan Effective Date (as hereinafter defined), pursuant to the Plan of Reorganization (as hereinafter defined), Lender agreed to provide loans to Borrower subject to the terms and conditions set forth herein.
In consideration of the foregoing and the promises and the agreements hereinafter set forth, and intending to be legally bound hereby, the parties hereto agree as follows:
Article 1
DEFINITIONS
Section 1.01.      Definitions . In addition to the initially capitalized terms defined elsewhere herein, when used in this Agreement, the following terms shall have the respective meanings set forth below.
“ 13-Week Projection ” shall mean a projected statement of sources and uses of Cash and Cash Equivalents for Borrower and its Subsidiaries on a weekly basis for the following 13 calendar weeks, including the anticipated uses of the Loans for each week during such period.
“ Affiliate ” means, with respect to any Person, any Person that owns or controls directly or indirectly such Person, any Person that controls or is controlled by or is under common control with such Person, and each of such Person’s senior executive officers, directors and partners.
“ AFR ” is the applicable federal rate in effect under Section 1274(d) of the Code (as of the day on which the Loan was made).
“ Agreement ” means this Loan Agreement and all annexes, exhibits and schedules hereto, as each may be amended from time to time.
“ Anti-Corruption Laws ” means all laws, rules, and regulations of any jurisdiction applicable to Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.
“ Approved Plan Effective Date ” the effective date of the Plan of Reorganization, which is July 26, 2016.

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“ Availability Termination Date ” means the earlier to occur of (i) September 30, 2018 and (ii) the termination of the Commitment in accordance with Section 7.02 of this Agreement.
“ Bankruptcy Code ” means The Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
“ Board of Directors ” means the board of directors or similar governing body of a Loan Party.
“ Borrower ” has the meaning set forth in the first paragraph hereof, including its successors and assigns.
“ Business Day ” means any day not a Saturday, Sunday or a day on which banks are required or permitted to be closed under the laws of the State of New York.
“ Capital Stock ” means: (i) in the case of a corporation, corporate stock; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“ Cash ” means lawful currency of the United States of America.
“ Cash Equivalents ” means (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any state thereof maturing within one (1) year from the date of acquisition thereof, (ii) commercial paper maturing no more than one (1) year from the date of creation thereof and currently having rating of at least A-2 or P-2 from either Standard & Poor’s Rating Service or Moody’s Investors Service, Inc., (iii) certificates of deposit maturing no more than one (1) year from the date of investment therein and issued by any bank or trust company organized under, or authorized to operate as a bank or trust company under, the laws of the United States of America, any state thereof or the District of Columbia or any political subdivision thereof and that has capital and surplus of not less than $500,000,000, and (iv) money market accounts and deposit accounts issued by any bank or trust company organized under, or authorized to operate as a bank or trust company under, the laws of the United States of America, any state thereof or the District of Columbia or any political subdivision thereof and that has capital and surplus of not less than $500,000,000.
“ Change in Control ” means, at any time, the occurrence of any of the following:
(i)    the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of Borrower and its Subsidiaries taken as a whole to any Person (including any “person” or “group” (as such terms are used in Sections 13(d)(3) and 14(d), respectively, of the Exchange Act as in effect on the Effective Date)); or

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(ii)    any “person” or “group” (each as used in Sections 13(d) and 14(d) of the Exchange Act as in effect on Effective Date) is or becomes the beneficial owner (as defined in Rule 13d-3 of the Exchange Act as in effect on Effective Date), directly or indirectly, in the aggregate Equity Interests representing 50% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Borrower.
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, and all rules and regulations in effect from time to time thereunder.
“ Commitment ” has the meaning set forth in Section 2.01 .
“ Confirmation Order ” means the order of the Bankruptcy Court confirming the Plan of Reorganization entered pursuant to section 1129 of the Bankruptcy Code dated July 12, 2016, Docket No. 3038.
“ Default ” means an event, condition or circumstance, the occurrence of which would, with the giving of notice or the passage of time or both, become an Event of Default.
“ Disqualified Equity Interest ” shall mean any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Equity Interest), or upon the happening of any event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Equity Interest, in whole or in part, on or prior to the date that is 91 days after the Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in (a) above, in each case at any time on or prior to the date 91 days after the earlier of the Maturity Date or the date that the Obligations hereunder are no longer outstanding, or (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations. The amount of Disqualified Equity Interests deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that Borrower and its Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Equity Interests, exclusive of accrued dividends.
“ Domestic Subsidiary ” shall mean any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.
“ Effective Date ” means the date of this Agreement.
“ Environmental Laws ” means all laws (including common law), treaties, judgments, rules, regulations, orders, decrees, injunctions, permits, requirements and the like of any supranational, federal, state, local, foreign or other Governmental Authority, whether now or hereafter in effect, relating to the environment, natural resources, health, safety (respect to exposure to or releases of, any Hazardous Substances), mine reclamation, or to any pollutant, chemical or toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous materials or wastes, toxic substances, flammable, explosive or radioactive materials, asbestos or other similar materials.

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“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder.
“ Event of Default ” means an event described in Section 7.01 hereof.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Existing PNC Letters of Credit ” means all letters of credit issued by PNC Bank, National Association for the account of a Loan Party and/or one of its Affiliates and outstanding on the Effective Date as set forth on Schedule I .
“ GAAP ” means generally accepted accounting principles in the United States of America, consistently applied.
“ Governmental Authorities ” means individually and collectively the government of the United States of America or any other nation and any state, province, local or other political subdivision thereof, and any department, authority or administrative agency exercising executive, legislative, judicial, regulatory or administrative authority over the business, operations or property of the Loan Parties or their Subsidiaries.
“ Guarantors ” initially means the Domestic Subsidiaries of Borrower party to this Agreement as of the date hereof, and shall at any time after the date hereof also include any other Person that shall become a “Guarantor” pursuant Section 5.07 hereof.
“ Hazardous Substances ” means any pollutant, contaminant, waste or chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material, or any substance, waste or material having any constituent elements displaying any of the foregoing characteristics, including, petroleum, its derivatives, by-products and other hydrocarbons and any substance, waste or material regulated under any Environmental Law.
“ Indebtedness ” of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes, credit or loan agreements or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except accrued expenses and trade accounts payable arising in the ordinary course of business and that are not past due for more than 90 days, (iv) all lease obligations of such Person as lessee that are capitalized in accordance with GAAP, (v) all non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, bankers’ acceptance or similar instrument (whether drawn or undrawn), (vi) all obligations described in any of clauses (i), (ii), (iii), (iv) or (v) above secured by a Lien on any asset of such Person, whether or not such Indebtedness is otherwise an obligation of such Person, and (vii) all Indebtedness of others guaranteed, directly or indirectly, by such Person.
“ Indemnified Party ” has the meaning set forth in Section 9.01(a) .

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“ IRS ” means the United States Internal Revenue Service.
“ Lender ” has the meaning set forth in the first paragraph hereof and shall include any successors or assigns thereof (and any subsequent successor or assignee thereof).
“ Lender Expenses ” mean all reasonable and documented costs and expenses of Lender, or any other holder or owner of any Obligations (including, without limitation, court costs, and reasonable and documented attorneys’ fees and expenses, whether or not suit is instituted, and, if suit is instituted, whether at trial court level, appellate court level, in a bankruptcy, probate or administrative proceeding or otherwise) incurred in connection with collecting under (or attempting to collect under) or enforcement of (or attempting to enforce) the Loan Documents or the Obligations, or incurred in defending the Loan Documents, or incurred in any other matter or proceeding relating to the Loan Documents or the Obligations.
“ Lien ” means any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on contract, statute, or common law, including any mortgage, lien, deed of trust, charge, pledge, security interest or other encumbrance.
“ Loan ” or “ Loans ” has the meaning set forth in Section 2.01 .
“ Loan Documents ” means collectively this Agreement and the Note, and all other agreements, documents and certificates required hereunder, each as may be entered into or amended from time to time.
“ Loan Parties ” means Borrower and the Guarantors.
“ Margin Stock ” has the meaning provided in Regulation U.
“ Material Adverse Effect ” means (i) a material adverse change in the operations, assets, business or financial condition of Borrower and its Subsidiaries taken as a whole (excluding (x) any matters publicly disclosed prior to the Approved Plan Effective Date, and (y) the effect of any action required to be taken in connection with the Plan of Reorganization), (ii) any material adverse effect on the ability of the Loan Parties taken as a whole to perform their obligations under this Agreement or on Borrower’s ability to perform its obligations under the Note or (iii) any material adverse effect on the Lender’s rights and remedies hereunder.
“ Material Indebtedness ” means Indebtedness (other than Indebtedness hereunder) of Borrower and/or one or more of its Subsidiaries arising in one or more related or unrelated transactions in an aggregate principal or face amount exceeding fifteen million dollars ($15,000,000).
“ Material Lease ” shall mean any lease of real property or other contractual obligation in respect of Material Leased Real Property.
“ Material Leased Real Property ” means any real property subject to a real property lease with a Loan Party as lessee, with minimum royalties, rents or any similar payment

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obligations in excess of five million dollars ($5,000,000) in the most recently ended fiscal year of Borrower or such Subsidiary.
“ Material Subsidiary ” means any Subsidiary of Borrower that, on any date of determination, owns assets with a value in excess of ten million dollars ($10,000,000) on such date, as determined in accordance with GAAP.
“ Maturity Date ” means September 30, 2019.
“ Note ” means Borrower’s promissory note in favor of Lender evidencing Borrower’s indebtedness to Lender under the Loans, in the form of Exhibit A attached hereto, to be delivered by Borrower to Lender pursuant to Section 4.01(a) , as the same may be amended, modified, restated or replaced from time to time.
“ Obligations ” means all debt, principal, interest, Lender Expenses and other amounts owed by any Loan Party to Lender or any other Indemnified Party pursuant to this Agreement or any other Loan Documents, whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of any bankruptcy or insolvency proceeding.
“ Permitted Financing ” means (a) the exit letter of credit facility entered into by Borrower and its Subsidiaries pursuant to the Plan of Reorganization and (b) any other financing arrangement entered into by Borrower and/or its Subsidiaries with the prior written consent of the Lender.
“ Permitted Financing Cash Collateral ” means the Cash and Cash Equivalents (if any) held as collateral and/or reserve amounts for the benefit of the lenders in any Permitted Financing pursuant to the terms thereof.
“ Permitted Liens ” means (a) Liens for Taxes, assessments or other governmental charges or levies (i) in respect of which funds have been set aside to pay such amounts and extinguish liens on or as soon as practicable after the date hereof, (ii) not yet delinquent or (iii) that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, Borrower or any Subsidiary shall have set aside on its books adequate reserves in accordance with GAAP; (b) landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, Borrower or any Subsidiary shall have set aside on its books adequate reserves in accordance with GAAP; (c) zoning restrictions, easements, trackage rights, leases, licenses, special assessments, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of Borrower or any Subsidiary or would not result in a Material Adverse Effect; (d) Liens granted by Borrower and/or its Subsidiaries under or in connection with any Permitted Financing; (e) Liens granted by Borrower and/or its Subsidiaries under or in connection with any State Settlement; (f) local, county, state and federal laws, ordinances or governmental regulations including Environmental Laws and regulations, local building and fire codes, and zoning conservation or other land use regulations now or hereafter

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in effect relating to any property owned, leased or licensed by the Loan Parties or any of their respective Subsidiaries; (g) Liens securing “Class 5 Claims” (within the meaning of Article II, section B(5) of the Plan of Reorganization) that have been reinstated in accordance with the Plan of Reorganization; (h) Liens on Cash and/or Cash Equivalents and any related deposit or securities accounts representing reserves established pursuant to Article V.J of the Plan of Reorganization; (i) Liens on Cash collateral securing the Existing PNC Letters of Credit; and (j) the following encumbrances which do not, in any case, individually or in the aggregate, materially detract from the value of any mine subject thereto or interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted on, at or with respect to such mine and as to be conducted following the Effective Date: (i) encumbrances typically found upon real property used for mining purposes in the applicable jurisdiction in which the applicable real property is located to the extent such encumbrances would be permitted or granted by a prudent operator of mining property similar in use and configuration to such real property (e.g., surface rights agreements, wheelage agreements and reconveyance agreements); (ii) rights and easements of owners (A) of undivided interests in any of the real property where the applicable Loan Party or Subsidiary owns less than 100% of the fee interest, (B) of interests in the surface of any real property where the applicable Loan Party or Subsidiary does not own or lease such surface interest, (C) and lessees, if any, of coal or other minerals (including oil, gas and coalbed methane) where the applicable Loan Party or Subsidiary does not own such coal or other minerals, and (D) and lessees of other coal seams and other minerals (including oil, gas and coal bed methane) not owned or leased by such Loan Party or Subsidiary; (iii) with respect to any real property in which Borrower or any Subsidiary holds a leasehold interest, terms, agreements, provisions, conditions, and limitations (other than royalty and other payment obligations which are otherwise permitted hereunder) contained in the leases granting such leasehold interest and the rights of lessors thereunder (and their heirs, executors, administrators, successors, and assigns); (iv) farm, grazing, hunting, recreational and residential leases with respect to which Borrower or any Subsidiary is the lessor encumbering portions of the real properties to the extent such leases would be granted or permitted by, and contain terms and provisions that would be acceptable to, a prudent operator of mining properties similar in use and configuration to such real properties; (v) royalty and other payment obligations to sellers or transferors of fee coal or lease properties to the extent such obligations constitute a lien not yet delinquent; (vi) rights of others to subjacent or lateral support and absence of subsidence rights or to the maintenance of barrier pillars or restrictions on mining within certain areas as provided by any mining lease, unless in each case waived by such other Person; and (vii) rights of repurchase or reversion when mining and reclamation are completed.
“ Person ” means any individual, corporation, limited liability company, partnership, business trust, joint venture, Governmental Authority or other entity.
“ Plan of Reorganization ” means that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession as confirmed by the Bankruptcy Court in the Confirmation Order in connection with the Cases.
“ Responsible Officer ” means, with respect to any Loan Party, each of the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the Treasurer and the Controller of such Loan Party.

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“ Sanctions ” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”) or the U.S. Department of State, (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“ Sanctioned Country ” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“ Sanctioned Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, or by the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United Kingdom, (b) any Person located, organized or resident in a Sanctioned Country (except any U.S. Person with a location in a Sanctioned Country pursuant to an OFAC license), or (c) any Person owned fifty percent or more by any Person or Persons described in clause (a).
“ State Settlement Cash Collateral ” means, with respect to any State Settlement, the Cash and Cash Equivalents (if any) held as collateral for the benefit of the Governmental Authority (or its agent) party to such State Settlement.
“ State Settlements ” means any settlements approved by the Bankruptcy Court among the Reorganized Debtors, Lender and any state or federal environmental regulatory agencies related to ongoing regulatory compliance obligations.
“ Subsidiary ” of any Person means any corporation, partnership, limited liability company or other entity of which such Person, directly or indirectly, now or in the future, owns more than fifty percent (50%) of the Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors, manager or other governing body of such Person, and any partnership in which such Person is a general partner or managing member.
“ Tax ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Article 2
CREDIT FACILITY
Section 2.01.      Commitment to Make Loans . From time to time prior to the Availability Termination Date, subject to the other provisions of this Agreement and the other Loan Documents, Lender hereby agrees to make loans to Borrower (such loans, the “ Loans ”) in an amount such that the aggregate principal amount of all Loans outstanding at any time shall not to exceed $35,000,000 (the “ Commitment ”). Subject to the terms and conditions hereof and prior to the Availability Termination Date, once borrowed and repaid, Loans may be reborrowed.
Section 2.02.      Promissory Note .

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(a)          The Indebtedness of Borrower to Lender under the Loans may also be evidenced by a Note executed by Borrower in favor of Lender. The original principal amount of the Note will be the amount of the Commitment, provided , however , that notwithstanding the face amount of the Note, Borrower’s liability under the Note shall be limited to all Obligations owing hereunder.
(b)          The date and amount of each Loan made by Lender to Borrower, and each payment made on account of the principal thereof, shall be recorded on Lender’s books and, prior to any transfer of the Note, may be endorsed by Lender on a schedule to be attached to the Note or any continuation thereof; provided that the failure of Lender to make any such recordation or endorsement shall not affect the obligations of Borrower to make a payment when due of any amount owing under the Note.
Section 2.03.      Use of Proceeds . The proceeds of all borrowings of Loans shall be used for lawful general corporate purposes of Borrower and its Subsidiaries.
Section 2.04.      Repayment . Without limiting the effect of any provision hereof requiring repayment or prepayment at an earlier date, the aggregate outstanding balance of Loans shall be due and payable on the Maturity Date.
Section 2.05.      Interest .
(a)      Subject to clause (b) below, prior to maturity, each Loan shall bear interest at a rate per annum equal to the lesser of (i) AFR and (ii) 2%. Interest shall be calculated on the basis of the actual number of days elapsed over a year of three hundred and sixty-five (sixty-six) (365/366) days.
(b)      Notwithstanding the foregoing, upon Lender’s written request after the occurrence and during the continuance of an Event of Default ( provided that no such written request shall be required upon the occurrence of an Event of Default described in Section 7.01(e) or Section 7.01(f) ), Borrower hereby agrees to pay to Lender interest on the outstanding principal balance of the Loans and, to the extent permitted by law, overdue interest with respect thereto, in each case at the rate of two percent (2%) per annum in excess of the rate then applicable to each Loan then outstanding.
(c)      Interest shall be due and payable on the last Business Day of each fiscal quarter of Borrower and on the Maturity Date. Without limitation of the foregoing or any other provision hereof, if any amount of any Loan is prepaid or repaid on any date that is not the last Business Day of such fiscal quarter, such prepayment or repayment shall be accompanied by payment of all accrued and outstanding interest with respect thereto (and all amounts received in connection with such prepayment or repayment shall be and be deemed first applied to such accrued and unpaid interest).
Section 2.06.      Loans . From time to time prior to the Availability Termination Date, Borrower may request Loans on any Business Day upon telephone, fax or other written notice to Lender’s designated representative (with any such notice promptly (and on the same day) followed by a written Loan notice in the form attached hereto as Exhibit B ) not less than ten (10) Business Days prior to the date on which the Loan is to be funded. Each request for

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a Loan shall identify the account to which such Loan is to be made or to which such Loan is to be wired or other appropriate instructions, the amount of the Loan and the date on which the Loan is requested to be funded. Subject to satisfaction of the terms and conditions hereof, Lender shall make the requested Loan available to Borrower by crediting the amount of such Loan to Borrower’s designated account not later than four o’clock (4:00) p.m. eastern time on the day for funding of the requested Loan.
Section 2.07.      Termination and Reduction of Commitment . The Commitment provided for hereunder shall terminate on the Availability Termination Date. From time to time, Borrower may, upon written notice to Lender, permanently reduce the Commitment in whole or in part.
Section 2.08.      Prepayment; Repayment . Loans may be prepaid, without premium or penalty at any time. Any mandatory prepayment or repayment made prior to the applicable interest due date (as described in Section 2.05(c)) shall be applied to principal of the Loan outstanding, and all prepayments or repayments made on an interest due date shall be applied first to accrued and unpaid interest, then to principal of the Loan outstanding.
Section 2.09.      Payments . All payments of principal, interest and other amounts due hereunder, including any prepayments thereof, shall be made by Borrower to Lender in immediately available funds before four o’clock (4:00) p.m. eastern time on any Business Day at the office of Lender set forth in Section 9.06 or as otherwise directed by Lender to Borrower in writing from time to time.
Section 2.10.      Mandatory Prepayments.
(a)      Overdrawn Amounts . Without limiting the effect of clause (b) below, if at any time the aggregate principal amount of Loans outstanding hereunder shall exceed the amount of the Commitment then in effect, Borrower shall promptly (within one (1) Business Day) repay the Loans in the amount necessary such that the aggregate amount of all Loans outstanding shall no longer exceed the amount of the Commitment.
(b)     Cash Balances. If the amount of Cash and Cash Equivalents (other than (i) the proceeds of outstanding Loans, (ii) the Permitted Financing Cash Collateral and (iii) all State Settlement Cash Collateral and (iv) any other restricted Cash and Cash Equivalents that are reserved pursuant to an order entered by the Bankruptcy Court as contemplated in Article V.J of the Plan of Reorganization) of Borrower and its Subsidiaries (on a consolidated basis) exceeds $20,000,000 (including actual (as opposed to projected) results as may be indicated on any applicable 13-Week Projection) as of the end of any calendar quarter ending on or prior to September 30, 2018, then, promptly, but in any event within ten (10) Business Days after any such calendar quarter-end, Borrower shall repay the Loans in the amount of such excess. If the amount of Cash and Cash Equivalents (other than (i) the proceeds of outstanding Loans, (ii) the Permitted Financing Cash Collateral, (iii) all State Settlement Cash Collateral and (iv) any other restricted Cash and Cash Equivalents that are reserved pursuant to an order entered by the Bankruptcy Court as contemplated in Article V.J of the Plan of Reorganization) held by Borrower and its Subsidiaries (on a consolidated basis) exceeds $30,000,000 as of the end of any calendar quarter ending after September 30, 2018, then, promptly, but in any event within ten (10) Business Days after any such calendar quarter-end, Borrower shall repay the Loans in the amount of such excess.

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Article 3
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent to Lender, on behalf of themselves and their Subsidiaries, as follows:
Section 3.01.      Organization and Good Standing . Borrower and each of its Subsidiaries is an entity duly existing under the laws of the jurisdiction in which it is incorporated or organized, as applicable, and qualified and licensed to do business in any jurisdiction in which the conduct of its business or its ownership of property requires that it be so qualified, except where to be so qualified or licensed could not reasonably be expected to result in a Material Adverse Effect.
Section 3.02.      Power and Authority: Validity of Agreement . Subject to the entry of the Confirmation Order, each Loan Party has the partnership, corporate or other power and authority to enter into and perform each Loan Document to which it is a party; and subject to the entry of the Confirmation Order, all actions necessary or appropriate for its execution and performance of such Loan Documents have been taken, and, upon their execution, and assuming due execution, delivery and performance by Lender, if required, the same will constitute the valid and binding obligations of such Loan Party, enforceable in accordance with their terms subject to the effect of applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and to general equitable principles limiting the availability of equitable remedies.
Section 3.03.      No Violation of Laws or Agreements . Except as could not reasonably be expected to have a Material Adverse Effect, the making and performance of this Agreement, the Note and the other Loan Documents by each Loan Party do not violate any provisions of any law or regulation, federal, state or local, or any Loan Party’s organizational documents or result in any breach or violation of, or constitute a default under, any material agreement or material instruments by which either such Loan Party or its property may be bound, except for cases in which consents and/or approvals have heretofore been given, made or received.
Section 3.04.      Compliance . Such Loan Party and each of its Subsidiaries have met the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA. No event has occurred resulting from such Loan Party’s failure to comply with ERISA that is reasonably likely to result in such Loan Party incurring any liability that could reasonably be expected to have a Material Adverse Effect. Such Loan Party is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940. Such Loan Party has not violated any statutes, laws, ordinances or rules applicable to it, the violation of which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Such Loan Party and each Subsidiary of such Loan Party have filed or caused to be filed all federal income Tax returns and all other material Tax returns required to be filed, and all such Tax returns are true and complete in all material respects, and, subject to the claims reconciliation process in the Cases, have paid, or have made adequate provision for the payment of, all Taxes reflected therein except those being contested in good faith with adequate reserves under GAAP.

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Section 3.05.      Litigation . There are no actions, suits, litigations, proceedings, orders, decrees or claims (at law or in equity) that are pending or, to the best of its knowledge or information, threatened against any Loan Party or any Subsidiary thereof, before any court, administrative agency, or arbitrator, which, if adversely resolved, would have a Material Adverse Effect.
Section 3.06.      Environmental Matters. After giving effect to the Confirmation Order and the effectiveness of the State Settlements, there are no liabilities or obligations of or relating to any Loan Party or any Subsidiary thereof, whether accrued, contingent, absolute, determined, determinable or otherwise, arising under or relating to any Environmental Law or Hazardous Substance which, individually or in the aggregate, would have a Material Adverse Effect, and, to the best of each Loan Party’s knowledge or information there are no facts, conditions or circumstances which would reasonably be expected result in or be the basis for any such liabilities or obligations which, individually or in the aggregate, would have a Material Adverse Effect.
Section 3.07.      Title to Assets . Each Loan Party has good and marketable title to or a valid leasehold interest in (or holds pursuant to a valid license) all of its properties and assets material to the operation and conduct of its/their business free and clear of any Liens, except for Liens that will be terminated on the Effective Date and Permitted Liens.
Section 3.08.      Accuracy of Information .
(a)      All information furnished to Lender and its affiliates concerning the financial condition of the Loan Parties and their Subsidiaries has been prepared in accordance with GAAP in all material respects, except as otherwise disclosed therein, and fairly presents the financial condition of the Loan Parties and their Subsidiaries as of the dates and for the periods covered and discloses all liabilities required to be disclosed under GAAP, and there has been no material adverse change in the financial condition or business of Loan Parties from the date of such statements to the date hereto; and
(b)      Neither this Agreement, the other Loan Documents, or any other documents furnished by or on behalf of Borrower or its Subsidiaries to Lender in connection with this Agreement contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements contained therein not misleading. Borrower has disclosed to Lender in writing any and all facts which, to its knowledge, materially and adversely affect the business, properties, operations or condition, financial or otherwise, of Borrower, its Subsidiaries or any of their ability to perform their obligations under this Agreement, the Note and the other Loan Documents.
Section 3.09.      Consents . Subject to the entry of the Confirmation Order, the Loan Parties and their Subsidiaries have obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Governmental Authorities that are necessary for the continued operation of such Loan Party’s business as currently conducted.
Section 3.10.      Use of Proceeds . No part of the Loan (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock.  Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other Loan will violate or be inconsistent with the provisions of

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Regulation T, U or X of the Board of Governors of the Federal Reserve System. Not more than 25% of the value of the assets of Borrower and its Subsidiaries taken as a whole is represented by Margin Stock.
Section 3.11.      Anti-Corruption Laws and Sanctions . Borrower, its Subsidiaries and, to the knowledge of Borrower, its officers, directors, employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) Borrower, any Subsidiary or, to the knowledge of Borrower or such Subsidiary, any of their respective directors, officers or employees or (b) to the knowledge of Borrower, any agent of Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
Article 4
CONDITIONS
Section 4.01.      Effectiveness . The effectiveness of this Agreement and obligation of Lender to make the initial Loans shall be subject to satisfaction of the following conditions, including Lender’s receipt of the documents referred to below, each in form and substance satisfactory to Lender (unless waived by Lender in writing):
(a)      Agreement . This Agreement duly executed by Borrower and each Guarantor.
(b)      Promissory Note . The Note duly executed by Borrower.
(c)      Representations and Warranties. All representations and warranties set forth herein and in the other Loan Documents shall be true and correct as of the Effective Date in all material respects (except to the extent such representation or warranty is qualified by materiality, in which such case, in all respects).
(d)      No Default or Event of Default . No Event of Default or Default shall exist, or would result immediately after giving effect to the effectiveness of this Agreement.
(e)      Officer Certificate . Lender shall have received a certificate executed by a Responsible Officer of Borrower certifying as to the matters set forth in Section 4.01(c) and (d) .
(f)      Plan of Reorganization; State Settlements . Lender shall have received evidence, in form and substance satisfactory to Lender that prior to the date hereof or concurrently herewith the Approved Plan Effective Date shall have occurred, and the Confirmation Order shall be valid, subsisting and continuing.
Section 4.02.      Additional Condition to Each Loan . The obligation of Lender to make each Loan hereunder, including the initial Loan, is further subject to the following conditions:
(a)      Representations and Warranties. All representations and warranties set forth herein and in the other Loan Documents shall be true and correct as if made on the date of such Loan in all material respects (except to the extent such representation or warranty is qualified by materiality, in which such case, in all respects).

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(b)      No Default or Event of Default . (i) No Default or Event of Default shall have occurred and be continuing on the date of such Loan or be caused by such Loan and (ii) immediately prior to and after giving effect to the borrowing of such Loan, no default shall have occurred or be continuing in respect of any Material Indebtedness of the Borrower and its Subsidiaries.
(c)      Borrowing Notice. Lender shall have received a completed Loan request, in the form attached hereto as Exhibit B , accompanied by any other documents or information reasonably required by Lender in connection therewith.
(d)      Cash Balance Certificate . After giving effect to such Loans the balance of Cash and Cash Equivalents (other than (i) the Permitted Financing Cash Collateral, (ii) all State Settlement Cash Collateral and (iii) any other restricted Cash and Cash Equivalents that are reserved pursuant to an order entered by the Bankruptcy Court as contemplated in Article V.J of the Plan of Reorganization) held by Borrower and its Subsidiaries (on a consolidated basis) shall not exceed $20,000,000 and Lender shall have received a certificate executed by the Chief Financial Officer of Borrower certifying to the same.
Each request for a Loan shall be deemed to be a representation by Borrower that the conditions set forth above in this Section 4.02 shall be satisfied as of the date of such Loan.
Article 5
AFFIRMATIVE COVENANTS
Each Loan Party covenants that, until payment in full of all Obligations, and for so long as Lender may have any Commitment hereunder, each Loan Party shall and shall cause its Subsidiaries to do the following:
Section 5.01.      Good Standing and Government Compliance . (a) Each Loan Party shall maintain its, and each of its Subsidiaries’ (i) limited liability company, partnership or corporate existence, as applicable, unless (other than in the case of Borrower) the failure to maintain any such existence could not reasonably be expected to have a Material Adverse Effect, and (ii) good standing in its respective jurisdiction of organization or incorporation and, as applicable, shall maintain qualification and good standing in each other jurisdiction in which the failure to maintain good standing could reasonably be expected to have a Material Adverse Effect. Each Loan Party shall, and shall cause each of its subsidiaries to, comply in all material respects with all applicable Environmental Laws, and maintain all material permits, licenses and approvals required thereunder, except, in each case, to the extent that the failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each Loan Party shall comply, and shall cause each of its Subsidiaries to comply, with all statutes, laws, ordinances and government rules and regulations to which it is subject (including any zoning, mining, building ordinance, code or approval), and shall maintain, and shall cause each of its Subsidiaries to maintain, in force all licenses, approvals and agreements, the loss of which or failure to comply with which would reasonably be expected to have a Material Adverse Effect.
Section 5.02.      Financial Statements, Reports. Certificates .

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(a)      Borrower shall deliver to Lender:
(i)      within forty-five (45) days after the end of Borrower’s fiscal quarter, unaudited consolidated balance sheets, income statements and statements of cash flows covering each Loan Party and its Subsidiaries’ operations during such period, prepared in accordance with GAAP, in a form reasonably acceptable to Lender, certified by a Responsible Officer and accompanied by an executed Compliance Certificate in the form attached hereto as Exhibit C ; and
(ii)      within one hundred twenty (120) days after the end of Borrower’s fiscal year, audited consolidated financial statements (including balance sheets, income statements and statements of cash flows) of Borrower and its consolidated Subsidiaries prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Lender.
(b)      At any time a Loan is outstanding hereunder (but only if a Loan is outstanding), Borrower shall deliver to Lender:
(i)      commencing with the borrowing of the initial Loan (or if such initial Loan has been repaid prior to the borrowing of any Loan, the borrowing of such Loan thereafter), on the Thursday of the immediately succeeding calendar week following such borrowing and on the first Thursday of every month thereafter, a 13-Week Projection (it being agreed that if there are multiple borrowings outstanding at any time, the obligation to deliver the 13-Week Projection shall commence from the earliest to occur of such borrowings);
(ii)      promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against such Loan Party or any Subsidiary thereof that, if adversely resolved, could result in a Material Adverse Effect; and
(iii)      such sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Lender may reasonably request from time to time.
(c)      As soon as available, but in any event not later than January 15 of each calendar year, each Loan Party’s financial and business projections and budget on a monthly basis for such year, with evidence of approval thereof by each Loan Party’s Board of Directors (such Loan Party shall deliver Board of Directors approved revisions to such projections within fifteen (15) days after such approval thereof).
(d)      Borrower shall deliver notice to Lender promptly upon becoming aware of the occurrence or existence of a Default or Event of Default hereunder.
Section 5.03.      Taxes . Such Loan Party shall make, and cause each of its Subsidiaries to make, due and timely payment of all material federal, state, and local Taxes, assessments, or contributions required of it by law, including, but not limited to, those laws concerning income

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Taxes; provided that such Loan Party or a Subsidiary of such Loan Party need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by such Loan Party or its Subsidiary, as applicable or is otherwise subject to the claims reconciliation process in the Cases.
Section 5.04.      Insurance . The Loan Parties and their Subsidiaries, at their expense, shall keep the all of their properties owned by any of them insured against loss or damage by fire, theft, explosion, sprinklers, and all other hazards and risks, and in such amounts, as ordinarily insured against by other owners in similar businesses conducted in the locations where such Loan Party’s or its Subsidiaries’ (as applicable) business is conducted. Each Loan Party shall also maintain liability and other insurance in amounts and of a type that are customary to businesses similar to such Loan Party’s.
Section 5.05.      [Reserved] .
Section 5.06.      Maintenance of Properties . Except as could not be reasonably be expected to have a Material Adverse Effect, the Loan Parties will maintain their properties in good working order and repair, reasonable wear and tear excepted.
Section 5.07.      Additional Guarantors . If any Loan Party acquires or creates a Domestic Subsidiary that is a Material Subsidiary after the Effective Date, then Borrower shall, within 30 Business Days of the date on which such Subsidiary was acquired or created, cause each such Subsidiary to execute a joinder to this Agreement in order for such Subsidiary to become a Guarantor hereunder.
Section 5.08.      State Settlements . Borrower and its Subsidiaries shall comply with the terms of the State Settlements unless the failure to comply could not reasonably be expected to have a Material Adverse Effect.
Section 5.09.      Compliance with Leases . Except as could not be reasonably be expected to have a Material Adverse Effect, the Loan Parties shall make all payments and otherwise perform all obligations in respect of all Material Leases to which any Loan Party is a party, keep such Material Leases in full force and effect and not allow such Material Leases to lapse or be terminated or any right to be forfeited or cancelled.
Article 6
NEGATIVE COVENANTS
So long as the Commitment remains in effect or any Obligations remain outstanding, the Loan Parties covenant and agree that, without Lender’s prior written consent, none of the Loan Parties will, nor will they permit any of their respective Subsidiaries to:
Section 6.01.      Change in Location; Change in Business. Change its status as a U.S. person for U.S. tax purposes, become a resident for tax purposes in any jurisdiction other than the United States or any other subdivision thereof or permit any of its Subsidiaries to engage in any business, other than or reasonably related or incidental to the businesses currently engaged in by such Loan Party.

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Section 6.02.      Mergers or Acquisitions . Directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or sell, assign, lease, transfer, convey or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default or Event of Default exists or would result therefrom:
(a)      any Subsidiary may merge with (x) Borrower, provided , that Borrower shall be the continuing or surviving Person, or (y) any one or more other Subsidiaries, provided , that when any Subsidiary that is a Loan Party is merging with another Subsidiary, the Loan Party shall be the continuing or surviving Person;
(b)      any Subsidiary may sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its assets (upon dissolution, liquidation or otherwise) to Borrower or to another Subsidiary; provided , that if the transferor in such a transaction is a Loan Party, then the transferee must either be Borrower or another Loan Party; provided , further , that if such Subsidiary is dissolving or liquidating its assets and is not a Material Subsidiary, distributions of its assets or the proceeds thereof may also be made to creditors and other claimants legally entitled to receive such proceeds;
(c)      any Subsidiary that is not a Material Subsidiary may sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its assets (upon dissolution, liquidation or otherwise) to a third party; provided that such Subsidiary has permanently ceased to generate income and/or is operating at a loss; and provided , further , that such Subsidiary provides to Lender at least ten (10) days’ prior written notice of the transaction;
(d)      the sale of idle mines, mines in reclamation, and any other mine or site at which the Loan Party has ceased ordinary course operations and any other sales, leases, transfers, conveyances or other dispositions permitted under any Permitted Financing; and
(e)      Borrower and any Subsidiary may merge or consolidate with any other Person in a transaction in which Borrower or such Subsidiary is the surviving or continuing Person.
Section 6.03.      Distributions . At any time pay any dividends or make any other distribution or payment on account of or in redemption, retirement or purchase of any Equity Interests, other than:
(a)      dividends or distributions payable in Equity Interests of Borrower (other than Disqualified Equity Interests);
(b)      dividends or distributions payable to Borrower or any Subsidiary, and payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by any Subsidiary to the holders of its Equity Interests (other than holders that are Affiliates of Borrower, except for those holders that are Affiliates solely as a result of their ownership of such Equity Interests) on a pro rata basis;
(c)      the repurchase of Equity Interests deemed to occur upon (i) the exercise of stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities, to the extent such Equity Interests or other securities represent a portion of the

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exercise price of those stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities or (ii) the withholding of a portion of Equity Interests issued to employees and other participants under an equity compensation program of Borrower or its Subsidiaries to cover withholding tax obligations of such persons in respect of such issuance; and
(d)      distributions by any Subsidiary of Borrower that is not a Material Subsidiary in connection with the dissolution or liquidation of any of Borrower’s subsidiaries to any Person legally entitled to receive such distributions.
For the avoidance of doubt, nothing in this Section 6.03 shall prohibit the making of any Reorganized ANR Contingent Revenue Payment (as defined in the Plan Reorganization) and the Loan Parties shall not be required to obtain the Lender’s consent prior to making any such Reorganized ANR Contingent Revenue Payment.
Section 6.04.      Transactions with Affiliates . Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of such Loan Party (other than Lender and its Affiliates) except for transactions that are in the ordinary course and upon fair and reasonable terms that are not materially less favorable to such Loan Party than would be obtained in an arm’s length transaction with a non-affiliated Person; provided that the foregoing restrictions shall not apply to: (a) transactions between or among Borrower and its Subsidiaries and (b) payments permitted pursuant to Section 6.03 .
Section 6.05.      Use of Proceeds . Use the proceeds of any Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose or (b) for any purpose other than those described in Section 2.03 . Borrower will not request any Loan, and Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
Article 7
DEFAULT
Section 7.01.      Events of Default . Each of the following events shall be an Event of Default hereunder:
(a)      Payment. If Borrower shall fail to pay any installment of principal under any Loan when due or, within five (5) Business Days of when due any interest or any other sum payable to Lender hereunder or otherwise; or
(b)      Covenant Default .

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(i)      If any Loan Party fails to perform any obligation under Section 5.01(a)(i) (with respect to Borrower) or Section 5.02(a) , (b)(i) or (d) or violates any of the covenants or agreements contained in Article 6 of this Agreement; or
(ii)      If any Loan Party shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those referred to in clause (i) above), the Note, or any of the other Loan Documents to which it is a party and, if capable of being remedied, such failure shall remain unremedied for thirty (30) days after written notice thereof shall have been received by Borrower from Lender; or
(c)      [Reserved.]
(d)      Cross-Acceleration . If as a result of the occurrence of any event or condition, any Material Indebtedness of any Loan Party or any Subsidiary thereof shall be accelerated or declared to be due and payable or shall be required to be prepaid (other than by a regularly-scheduled required prepayment) in whole or in part prior to its stated maturity; or
(e)      Voluntary Bankruptcy . If Borrower or any of its Material Subsidiaries shall (i) apply for or consent to the appointment of a receiver, trustee or liquidator for itself or a material part of its assets, (ii) make a general assignment for the benefit of its creditors, or (iii) commence a voluntary case for relief as a debtor under the Bankruptcy Code or under any other applicable law, or file a petition seeking reorganization, insolvency, readjustment of debts, dissolution or liquidation; or
(f)      Involuntary Bankruptcy . If an involuntary case under the Bankruptcy Code shall be commenced against Borrower or any of its Material Subsidiaries or a petition shall be filed against Borrower or any of its Material Subsidiaries seeking similar relief under any other applicable law and such case or petition shall remain undismissed for sixty (60) days after the filing or commencement thereof; or
(g)      Invalidity . This Agreement or any other Loan Document (or any material provision of either thereof) shall cease to be in full force and effect (or shall be declared by a court to be null and void) (other than any Loan Document not in full force and effect with respect to any non-Material Subsidiary) or shall be asserted to be invalid or unenforceable by any Loan Party or any Affiliate thereof or any Loan Party shall deny its liability thereunder; or
(h)      Judgments; Settlements . If one or more judgments, orders, decrees or arbitration awards requiring Borrower and/or its Subsidiaries to pay an aggregate amount of fifteen million dollars ($15,000,000) or greater (and that is not reimbursed by third party insurance) shall be rendered against Borrower and/or its Subsidiaries and the same shall not have been vacated or stayed within thirty (30) days thereafter; or
(i)      State Settlements . Termination of any State Settlement as a result of Borrower or any of its Subsidiaries breaching or otherwise failing to perform any or all of its obligations or agreements in respect of such State Settlement, which termination results in a Material Adverse Effect; or
(j)      Change of Control . A Change in Control shall occur.

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Section 7.02.      Rights and Remedies . Upon the occurrence and during the continuance of an Event of Default, Lender may, at its election, without notice of its election and without demand, do any one or more of the following, all of which are authorized by each Loan Party:
(a)      Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable and all Commitments hereunder terminated ( provided that upon the occurrence of an Event of Default described in Section 7.01(e) or Section 7.01(f) , all Obligations shall become due and payable and all Commitments hereunder terminate, in each case, automatically and immediately, without need for any action by Lender);
(b)      Cease advancing money or extending credit to or for the benefit of Loan Parties, or any of them, under this Agreement or under any other agreement between Loan Parties, or any of them, and Lender; and
(c)      Set off and apply to the Obligations against any and all (i) balances and deposits of Loan Parties, or any of them, held by Lender (if any), and (ii) indebtedness at any time owing to or for the credit or the account of Loan Parties, or any of them, held by Lender.
Section 7.03.      Remedies Cumulative; No Waiver . All rights and remedies of Lender shall be cumulative to the fullest extent allowed by law. No exercise by Lender of one right or remedy shall be deemed an election, and no waiver by Lender of any Event of Default on any Loan Party’s part shall be deemed a continuing waiver. No delay by Lender shall constitute a waiver, election or acquiescence by it. No waiver by Lender shall be effective unless made in a written document signed on behalf of Lender and then shall be effective only in the specific instance and for the specific purpose for which it was given. Each Loan Party expressly agrees that this Section 7.03 may not be waived or modified by Lender by course of performance, conduct, estoppel or otherwise.
Section 7.04.      Demand; Protest . Except as otherwise provide in this Agreement, each Loan Party waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment and any other notices relating to the Obligations.
Article 8
GUARANTEE
Section 8.01.      Guarante e. Each Loan Party unconditionally guarantees, jointly and severally with the other Loan Parties, the due and punctual payment and performance of the Obligations. Each Loan Party further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Loan Party waives presentment to, demand of payment from and protest to Borrower or any other Loan Party of any of the Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment.
Section 8.02.      Guarantee of Payment . Each Loan Party further agrees that its guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives any

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right to require that any resort be had by Lender to any security held for the payment of the Obligations or to any balance of any deposit account or credit on the books of Lender in favor of Borrower or any other person.
Section 8.03.      No Limitations, etc.
(a)      The obligations of each Loan Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(i)      the failure of Lender to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document or otherwise;
(ii)      any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Loan Party under this Agreement;
(iii)      the failure to perfect any security interest in, or the exchange, substitution, release or any impairment of, any security held by Lender for the Obligations;
(iv)      any default, failure or delay, willful or otherwise, in the performance of the Obligations;
(v)      any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations);
(vi)      the existence of any claim, set-off or other rights that the Guarantor may have at any time against Borrower, Lender, or any other entity or Person, whether in connection herewith or any unrelated transactions, provided that nothing herein will prevent the assertion of any such claim by separate suit or compulsory counterclaim; and
(vii)      any other circumstance (including without limitation, any statute of limitations) or any existence of or reliance on any representation by Lender that might otherwise constitute a defense to, or a legal or equitable discharge of, Borrower or the Guarantor or any other guarantor or surety.
(b)      To the fullest extent permitted by applicable law, each Loan Party waives any defense based on or arising out of any defense of Borrower or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of Borrower or any other Loan Party, other than the indefeasible payment

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in full in cash of all the Obligations. Lender may, at its election, compromise or adjust any part of the Obligations, make any other accommodation with Borrower or any other Loan Party or exercise any other right or remedy available to them against Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been fully and indefeasibly paid in full in cash and discharged. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against Borrower or any other Loan Party, as the case may be.
Section 8.04.      Reinstatement . Each Loan Party agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of Borrower, any other Loan Party or otherwise.
Section 8.05.      Agreement to Pay; Subrogation and Subordination .
(a)      In furtherance of the foregoing and not in limitation of any other right that Lender has at law or in equity against any Loan Party by virtue hereof, upon the failure of Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Loan Party hereby promises to and will forthwith pay, or cause to be paid, to Lender in cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to Lender as provided above, all rights of such Loan Party against Borrower, or other Loan Party or any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Sections 8.05(b) , (c) and (d) .
(b)      In addition to all such rights of indemnity and subrogation as the Loan Parties may have under applicable law (but subject to Section 8.05(d) ), Borrower agrees that (i) in the event a payment shall be made by any Guarantor under this Agreement in respect of any Obligation of Borrower, Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the person to whom such payment shall have been made to the extent of such payment and (ii) in the event any assets of any Guarantor shall be sold pursuant to this Agreement to satisfy in whole or in part an Obligation of Borrower, Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.
(c)      Each Guarantor agrees (subject to Section 8.05(d) ) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation owed to Lender and such other Guarantor (the “ Claiming Guarantor ”) shall not have been fully indemnified by Borrower as provided in Section 8.05(b) , the contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment multiplied by a fraction of which the numerator shall be the net worth of such contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.07 , the date of the supplement hereto executed and delivered by such Guarantor). Any contributing Guarantor

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making any payment to a Claiming Guarantor pursuant to this Section 8.05(c) shall be subrogated to the rights of such Claiming Guarantor under Section 8.05(b) to the extent of such payment.
(d)      Notwithstanding any provision of this Agreement to the contrary, all rights of the Loan Parties under Sections 8.05(b) and 8.05(c) and all other rights of indemnity, contribution or subrogation of the Loan Parties under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of the Obligations. No failure on the part of Borrower or any Guarantor to make the payments required by Sections 8.05(b) and 8.05(c) (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Loan Party with respect to its obligations hereunder, and each Loan Party shall remain liable for the full amount of the obligations of such Loan Party hereunder. Each Guarantor hereby agrees that all Indebtedness and other monetary obligations owed by it to any other Guarantor or any Subsidiary shall be fully subordinated to the indefeasible payment in full in cash of the Obligations.
Section 8.06.      Information . Each Loan Party assumes all responsibility for being and keeping itself informed of the financial condition and assets of Borrower and each other Loan Party, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that Lender will have no duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks.
Article 9
MISCELLANEOUS
Section 9.01.      Indemnification; Release; Expenses .
(a)      Borrower hereby agrees to defend Lender and each of their respective directors, officers, agents and employees (each an “ Indemnified Party ”) from, and hold each of them harmless against, any and all losses and liabilities (including without limitation settlement costs and amounts, transfer Taxes, documentary Taxes, or assessments or charges made by any Governmental Authority), claims, damages, settlement costs, interest, judgments, costs, or expenses, including without limitation, reasonable and documented out of pocket fees and disbursements of one primary legal counsel (and such local or specialty counsels as shall be reasonably necessary) (collectively, “ Losses ”), incurred by or asserted against any of them arising out of, in connection with or by reason of this Agreement, the Commitment, the making of the Loan or any Loan Document, or the use of the proceeds of the Loan by Borrower or its Subsidiaries, including Losses relating to any Environmental Law or Hazardous Substance; provided , however , that Borrower shall not be liable for any portion of such Losses resulting from the gross negligence or willful misconduct of an Indemnified Party. Borrower hereby releases Lender and its affiliates and each of their respective directors, officers, agents, and employees from any and all claims for loss, damages, costs or expenses caused or alleged to be caused by any act or omission on the part of any of them not resulting from their gross negligence, material breach of contractual obligation under any Loan Document or willful misconduct. All obligations provided for in this Section 9.01 shall survive any termination of this Agreement or the Commitment and the repayment of the Loan.

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(b)      If Loan Parties, or any of them, fail to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this Agreement, then Lender may make payment of the same or any part thereof. Any amounts so paid or deposited by Lender shall constitute Lender Expenses, shall be immediately due and payable, and shall bear interest at the then applicable rate hereinabove provided. Any payments made by Lender shall not constitute an agreement by Lender to make similar payments in the future or a waiver by Lender of any Event of Default under this Agreement.
Section 9.02.      Binding and Governing Law; Jurisdiction .
(a)      This Agreement and all documents executed hereunder shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns and shall be governed as to their validity, interpretation and effect by the laws of the State of New York (without regard to the conflict of law principles set forth therein).
(b)      Each party hereto (i) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party to the exclusive general jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan in the City of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof; (ii) agrees that a final judgment in any such suit, action or proceeding brought in any such court may be enforced in any other court to whose jurisdiction the applicable party is or may be subject, by suit upon judgment; (iii) consents that any such action or proceeding may only be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (iv) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address provided for in Section 9.06 ; and (v) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law.
Section 9.03.      Payment on Non-Business Days . Whenever any payment to be made hereunder shall be stated to be due on a day other than a Business Day, such payment may be made on the next succeeding Business Day, provided , however , that such extension of time shall be included in the computation of interest due in conjunction with such payment or other fees due hereunder, as the case may be.
Section 9.04.      Severability . If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
Section 9.05.      Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all the signatures on such counterparts appeared on one document, and each such counterpart shall be deemed to be an original.

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Section 9.06.      Notices . All notices, demands, or other communications pursuant hereto shall be in writing and sent by certified mail (return receipt requested), nationally recognized overnight courier services, charges prepaid, telex or telecopy or electronic mail. All notices shall be deemed to have been given or made (i) in the case of notice sent by mail or courier, when received by the applicable addressee at its address set forth below, or (ii) in the case of notice sent by telex or telecopy or electronic mail, when sent to the applicable addressee at its applicable facsimile number or e-mail address set forth below but only to the extent confirmation of receipt is received by the sender (as such addresses and facsimile numbers may be changed from time to time by notice by one party to the other party):
(a)      If to a Loan Party:
c/o ANR, Inc.
300 Running Right Way
Julian, WV 25528
Attention: Drew McCallister
Telephone: (304)-369-8961
E-mail: dmccallister@alphanr.com

(b)      If to Lender:
Contura Energy, Inc.
P.O. Box 848
Bristol, TN 37664-0700
Attention: Andy Eidson, Mark Manno
Telephone: (276)-285-2099 (until August 30, 2016)
(423)-573-0300 (after August 30, 2016)
Facsimile: (276)-628-3116 (until August 30, 2016)
(423)-573-0448 (after August 30, 2016)
E-mail: andy.eidson@conturaenergy.com; mark.manno@conturaenergy.com

Section 9.07.      Amendments, Etc . No amendment or waiver of any provision of this Agreement or any other Loan Document shall in any event be effective unless the same shall be in writing and signed by the party against whom enforcement is sought.
Section 9.08.      Waiver of Jury Trial . BORROWER AND LENDER EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CLAIM, DEMAND OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANYWAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE DEALINGS BETWEEN THEM WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
[Signature page follows]



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IN WITNESS WHEREOF, the undersigned, have executed this Agreement the day and year first above written.

CONTURA ENERGY, INC., as Lender
By:
/s/ John DeGroote
 
Name: John DeGroote
  
 
Title: President and Secretary
   

ANR, INC., as Borrower

By:
/s/ David J. Stetson

 
Name: David J. Stetson
   
 
Title: President & Chief Executive Officer
  


[Signature Page to Loan Agreement]


ALEX ENERGY, LLC
ALPHA COAL SALES CO., LLC
ALPHA NATURAL RESOURCES, LLC
AMFIRE MINING COMPANY, LLC
ARACOMA COAL COMPANY, LLC
BANDMILL COAL LLC
BLACK CASTLE MINING COMPANY, LLC
BROOKS RUN MINING COMPANY, LLC
BROOKS RUN SOUTH MINING, LLC
DELBARTON MINING COMPANY, LLC
ELK RUN COAL COMPANY, LLC
ENTERPRISE MINING COMPANY, LLC
GOALS COAL COMPANY
HIGHLAND MINING COMPANY
INDEPENDENCE COAL COMPANY, LLC
JACKS BRANCH COAL COMPANY
KANAWHA ENERGY COMPANY, LLC
KEPLER PROCESSING COMPANY, LLC
KINGSTON MINING, INC.
LITWAR PROCESSING COMPANY, LLC
MARFORK COAL COMPANY, LLC
MILL BRANCH COAL LLC
NORTH FORK COAL CORPORATION
OMAR MINING COMPANY, LLC
PIGEON CREEK PROCESSING CORPORATION
PIONEER FUEL CORPORATION
POWER MOUNTAIN COAL COMPANY, LLC
REPUBLIC ENERGY, LLC
RIVERSIDE ENERGY COMPANY, LLC
ROAD FORK DEVELOPMENT COMPANY, LLC
ROCKSPRING DEVELOPMENT, INC.
RUM CREEK COAL SALES, INC.
SIDNEY COAL COMPANY, LLC
SPARTAN MINING COMPANY, LLC
STIRRAT COAL COMPANY, LLC
TRACE CREEK COAL COMPANY

as Guarantors


By:
/s/ Andrew Eidson
 
Name: Andrew Eidson
  
 
Title: Vice President
  

[Signature Page to Loan Agreement]

Exhibit 10.6







REGISTRATION RIGHTS AGREEMENT


by and among


CONTURA ENERGY, INC.


and


THE HOLDERS PARTY HERETO







Dated as of July 26, 2016









TABLE OF CONTENTS
 
 
PAGE
1
Definitions.
1

 
 
 
2
Demand Registration.
5

 
 
 
3
Shelf Registration.
8

 
 
 
4
Piggyback Registration.
9

 
 
 
5
Suspensions; Withdrawals; Notices
10

 
 
 
6
Company Undertakings.
12

 
 
 
7
Holder Undertakings
18

 
 
 
8
Registration Expenses.
20

 
 
 
9
Lock-Up Agreements.
21

 
 
 
10
Information Rights.
22

 
 
 
11
Indemnification; Contribution.
23

 
 
 
12
Transfer of Registration Rights.
27

 
 
 
13
Amendment, Modification and Waivers; Further Assurances.
27

 
 
 
14
Miscellaneous.
28

 
 
 
Annex A       Form of Joinder Agreement


i

REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is made as of July 26, 2016 by and among Contura Energy, Inc., a Delaware corporation (the “ Company ”), and each of the holders of Common Stock of the Company party hereto who received such shares pursuant to the Plan of Reorganization (the “ Plan ”) of Alpha Natural Resources, Inc. and certain of its subsidiaries and affiliates under Chapter 11 of Title 11 of the United States Code approved by the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”). Capitalized terms used but not otherwise defined herein are defined in Section ‎‎1 hereof.
RECITALS:
WHEREAS, the Company proposes to issue the Common Stock pursuant to, and upon the terms set forth in, the Plan to the Holders party hereto; and
WHEREAS, the Board of Directors of the Company has determined it is in the best interests of the Company to provide to the Holders that received Common Stock pursuant to the Plan in any amount representing at least 0.50% of the Common Stock outstanding (or deemed outstanding) on the Effective Date certain arrangements with respect to registration of the Registrable Securities (as defined in Section ‎1) under the Securities Act.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Company and each of the Holders (as defined in Section ‎1) hereby agree as follows:
1. Definitions.
(a) As used herein, the following terms have the following meanings:
“ Affiliate ” of any particular Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person; provided that funds or accounts managed, advised or sub-advised by any Holder shall also be considered Affiliates of such Holder.
“ Automatic Shelf Registration Statement ” means an “automatic shelf registration statement” as defined in Rule 405 (or any successor rule then in effect) promulgated under the Securities Act.
“ beneficially owned ”, “ beneficial ownership ” and similar phrases have the same meanings as such terms have under Rule 13d-3 and 13d-5 (or any successor rule then in effect) promulgated under the Exchange Act, except that in calculating the beneficial ownership of any Holder, such Holder shall be deemed to have beneficial ownership of all securities that such Holder has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The calculation of beneficial ownership for a Holder shall also include funds or accounts managed, advised or sub-advised by any Holder.


“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by applicable law or executive order to close.
“ Capital Stock ” means with respect to a corporation, any and all shares, interests or equivalents in capital stock of such corporation (whether voting or nonvoting and whether common or preferred) and any and all warrants, rights (including conversion and exchange rights) and options to purchase any such shares, interests or equivalents (including convertible debt).
“ Commission ” means the United States Securities and Exchange Commission or any successor governmental agency.
“ control ” (including the terms “controlling,” “controlled by” and “under common control with”) means, unless otherwise noted, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares, by contract, or otherwise.
“ Counsel to the Holders ” means the one law firm or other legal counsel to the Holders selected (i) in the case of a Demand Registration, Shelf Registration or Shelf Takedown, by the Holders of a majority of the Registrable Securities initially requesting such Demand Registration, Shelf Registration or Shelf Takedown; and (ii) in the case of a Piggyback Registration, the Holders of a majority of the Registrable Securities included in such Piggyback Registration.
“ EDGAR ” means the Electronic Data Gathering, Analysis and Retrieval System of the Commission.
“ Effective Date ” has the meaning assigned to such term in the Plan.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time.
“ Excluded Registration ” means (i) a registration relating to the sale of securities to employees of the Company or a Subsidiary pursuant to a stock option, stock purchase, or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (iv) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
“ FINRA ” means the Financial Industry Regulatory Authority or any successor regulatory authority.
“ Free Writing Prospectus ” means any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act.

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“ Follow-On Offering ” means any of the following: (i) a Demand Registration occurring after the consummation of an IPO for an underwritten Public Offering, (ii) an Underwritten Shelf Takedown, or (iii) a Piggyback Registration occurring after the consummation of an IPO for an underwritten Public Offering, in each case where Holders of Registrable Securities are permitted to participate.
“ Holder ” means (i) any Holder that beneficially owns Registrable Securities and is a party to this Agreement or (ii) any other party to any Joinder, in each case, that, together with its Affiliates, beneficially owns Registrable Securities.
“ IPO ” means the initial underwritten Public Offering of the Company’s Capital Stock (other than an Excluded Offering) following the Effective Date of the Plan.
“ Issuer Free Writing Prospectus ” means an issuer free writing prospectus as defined in Rule 433 under the Securities Act.
“ Joinder ” a joinder agreement in the form of Annex A executed and delivered to the Company pursuant to Section ‎‎12 hereof.
“ Material Adverse Effect ” means any material adverse effect on the business, properties, assets, operations, results of operations, condition (financial or otherwise) or prospects of the Company and its subsidiaries, taken as a whole.
“ National Securities Exchange ” means any exchange registered as a U.S. national securities exchange in accordance with the provisions of Section 19 of the Exchange Act (or any successor provisions then in effect).
“ Common Stock ” means the shares of common stock, par value $0.01 per share, of the Company issued on or after the Effective Date.
“Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, a governmental entity or any department, agency or political subdivision thereof or any other entity.
“ Public Offering ” means any sale or distribution to the public of Common Stock of the Company pursuant to an offering registered under the Securities Act, whether by the Company, by Holders and/or by any other holders of the Company’s Common Stock.
“ Public Reporting Date ” means the date, if any, that the Company becomes subject to filing information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
“ Prospectus ” means the prospectus used in connection with a Registration Statement.
“ Registrable Securities ” means at any time Common Stock of the Company held or beneficially owned by any Holder, including (i) any Common Stock issued pursuant to the Plan

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or upon the conversion, exercise or exchange, as applicable, of any other securities and/or interests issued pursuant to the Plan; (ii) any shares of Common Stock acquired in the open market or otherwise purchased or acquired by the Holder after the Effective Date and (iii) any shares of Common Stock issued by way of dividend, distribution, split or combination of securities or any recapitalization, merger, consolidation or other reorganization; provided , however , that as to any Registrable Securities, such securities shall irrevocably cease to constitute Registrable Securities upon the earliest to occur of: (A) the date on which such securities have been disposed of pursuant to an effective registration statement under the Securities Act; (B) the date on which such securities have been disposed of pursuant to Rule 144; (C) the date on which such securities have been transferred to any Person, other than a Holder or a Person pursuant to Section ‎‎12 hereof; and (D) the date on which such securities cease to be outstanding. In addition, after the consummation of two Follow-On Offerings, such securities shall irrevocably cease to constitute Registrable Securities on the date they are eligible for resale pursuant to Rule 144 or another exemption from the registration requirements of the Securities Act, in each case without restriction or limitation, and without the need for registration under the Securities Act (for the avoidance of doubt such shares shall not cease to be Registrable Securities while they are held by an affiliate (as defined in Rule 144) of the Company or constitute “control” securities).
“ Registration Statement ” means any registration statement filed hereunder or in connection with a Piggyback Registration.
“ Required Holders ” means Holders who collectively have beneficial ownership of at least (i) in the case of Section 2(a)(i) herein, 20% of the Common Stock outstanding, and (ii) in all other cases, 10% of the Common Stock outstanding.
“ Rule 144 ” means Rule 144 promulgated under the Securities Act (or any successor rule then in effect).
“ Rule 144A ” means Rule 144A promulgated under the Securities Act (or any successor rule then in effect).
“ Securities Act ” means the Securities Act of 1933, as amended from time to time.
“ Selling Expenses ” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Counsel to the Holders borne and paid by the Company as provided in Section 8(b).
“ Shelf Registration ” means a registration of securities pursuant to a Registration Statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“ Shelf Takedown ” means an Underwritten Shelf Takedown or another Public Offering pursuant to a Shelf Registration.

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(b) Each of the following terms is defined in the Section set forth opposite such term:
Term
Section
Company
Recitals
Company Demand Registration Notice
2(b)
Company Shelf Registration Notice
3(a)
Company Shelf Takedown Notice
3(c)
Demand Registration Notice
2(b)
Demand Shelf Takedown Notice
3(c)
Determination Date
3(g)
Due Diligence Information
6(a)(x)
End of Suspension Notice
5(b)
Form S-1 Shelf
3(a)
Form S-3 Shelf
3(a)
Lock-Up Agreement
10(a)
Long-Form Registration
2(a)
Losses
11(a)
Opt-In Election
7(e)
Opt-Out Election
7(e)
Permitted Free Writing Prospectus
7(a)
Piggyback Registration
4(a)
Plan
Recitals
Required Effective Period
6(a)(iii)
road show
11(a)
Shelf Registration Statement
3(a)
Short-Form Registration
2(a)
Suspension Event
5(b)
Suspension Notice
5(b)
Underwritten Shelf Takedown
3(c)
Withdrawal Request
5(d)
2. Demand Registration.
(a) Requests for Registration . At any time after February 1, 2017,
(i) prior to the consummation of an IPO, the Required Holders may request one registration under the Securities Act of all or any portion of the Registrable Securities held by such Required Holder(s) (A) on Form S-1 (or any successor form then in effect) (a “ Long-Form Registration ”) or (B) on Form S-3 or any similar short-form registration (a “ Short-Form Registration ”), if available (any registration under this Section ‎2(a), a “ Demand Registration ”); provided that

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(i) the Registrable Securities to be covered by any such Demand Registration, will not be less than 10% of the outstanding Common Stock of the Company on the date of the request and (ii) the reasonably anticipated implied valuation of the Company after giving effect to the Demand Registration (determined in good faith by the Required Holders requesting the Demand Registration) shall be in excess of one hundred million dollars ($100,000,000); and
(ii) at least 180 days following consummation of an IPO, the Required Holders may request Demand Registrations at any time (but no more frequently than once every consecutive 180 calendar day period); provided , that (i) the Registrable Securities to be covered by any such Demand Registration will not be less than 5% of the outstanding Common Stock of the Company on the date of the request and (ii) the reasonably anticipated aggregate offering price to the public of all Registrable Securities for which the Demand Registration has been requested by Required Holders (determined in good faith by the Required Holders requesting the Demand Registration) shall be in excess of five million dollars ($5 million); provided, further , that the Company will not be required to take any action pursuant to this Section ‎‎2(a)(ii) of this Agreement if within the 180 calendar day period preceding the date of a Demand Registration Notice, the Company effected a Demand Registration, Underwritten Shelf Takedown or a Piggyback Registration, such Required Holders received notice of such Demand Registration, Underwritten Shelf Takedown or Piggyback Registration, and such Required Holders were able to register and sell pursuant to such registration at least 50% of the Registrable Securities requested to be included in such registration either at the time of the registration or within 90 calendar days thereafter.
(b) Demand Registration Notices . All requests for Demand Registrations shall be made by giving written notice to the Company (the “ Demand Registration Notice ”). Each Demand Registration Notice shall specify (i) whether such Demand Registration shall be an underwritten Public Offering and (i) the approximate number of Registrable Securities proposed to be sold in the Demand Registration. The Company shall promptly give written notice (a “ Company Demand Registration Notice ”) of the filing of a Registration Statement pursuant to this Section ‎2 to all of the Holders within five (5) Business Days after such filing, and, subject to the provisions of Section ‎‎2(d) below, shall include in such Demand Registration all Registrable Securities held by Holders on the date of the Company Demand Registration Notice with respect to which the Company has received written requests for inclusion therein within 10 Business Days after the date of the Company Demand Registration Notice.
(c) Short-Form Registrations . Demand Registrations shall be Short-Form Registrations whenever the Company is permitted to use any applicable short form registration statement under the rules and regulations of the Securities Act, unless the underwriters, in their reasonable discretion, determine that the use of a Long-Form Registration is necessary in order for the successful offering of such Registrable Securities. Promptly after the Company has become eligible to use Form S-3 under the Securities Act, the Company shall use commercially

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reasonable efforts to make Short-Form Registrations on Form S-3 (or any successor form) available for the resale of Registrable Securities on a continuous or delayed basis.
(d) Priority on Demand Registrations . The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the Holders of a majority of the Registrable Securities requested to be included in the Demand Registration. If the Demand Registration is an underwritten Public Offering and the managing underwriters for such Demand Registration advise the Company and applicable Holders in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such Demand Registration exceeds the number of Registrable Securities and other securities, if any, which can be sold without adversely affecting the marketability, proposed offering price range acceptable to the Holders of a majority of the Registrable Securities requested to be included in the Demand Registration, timing or method of distribution of the offering, the Company shall include in such Demand Registration the number of Registrable Securities which can be sold without such adverse effect in the following order of priority: (i) first, the Registrable Securities requested to be included in such Demand Registration, allocated pro rata among the respective Holders of such Registrable Securities on the basis of the number of Registrable Securities owned by each such Holder; and (i) second, other securities requested to be included in such Demand Registration to the extent permitted hereunder.
(e) Selection of Underwriters . The Holders of a majority of the Registrable Securities initially requesting a Demand Registration which is an underwritten Public Offering shall, after consultation with the Company, have the right to select the managing underwriters to administer the Public Offering (which shall consist of one or more reputable nationally recognized investment banks).
(f) Effective Demand Registration . A registration shall not constitute a Demand Registration unless:
(i) it has been declared effective by the Commission and remains continuously effective for the Required Effective Period;
(ii) if after such Demand Registration has become effective and prior to all of the Registrable Securities registered in such Demand Registration being sold, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Holder requesting the Demand Registration and such interference is not eliminated within forty-five (45) days thereafter; or
(iii) the conditions specified in the underwriting agreement, if any, entered into in connection with such Demand Registration are not satisfied or waived, other than by reason of a failure on the part of the Holders.

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3. Shelf Registration.
(a) Requests for Shelf Registration . At any time after February 1, 2017, and at least 180 days following consummation of an IPO, the Required Holders may request that the Company file a Registration Statement for a Shelf Registration on Form S-1 covering the resale of the Registrable Securities on a delayed or continuous basis (the “ Form S-1 Shelf ”) or, if available, on Form S-3 (a “ Form S-3 Shelf ” and, together with the Form S-1 Shelf, a “ Shelf Registration Statement ”) and specify the approximate number of Registrable Securities to be included in such Shelf Registration Statement; provided , that (i) the Registrable Securities to be covered by any such Shelf Registration Statement will not be less than 5% of the outstanding Common Stock of the Company on the date of the request and (ii) the reasonably anticipated aggregate offering price to the public of all Registrable Securities to be included on such Shelf Registration Statement (determined in good faith by the Required Holders requesting the Shelf Registration Statement) shall be in excess of five million dollars ($5 million). The Company shall give written notice (a “ Company Shelf Registration Notice ”) of the filing of the Shelf Registration Statement within 5 Business Days of such filing to all Holders of Registrable Securities and shall include in such Shelf Registration Statement all Registrable Securities held by Holders on the date of the Company Shelf Registration Notice with respect to which the Company has received written requests for inclusion therein within 10 Business Days of the date of the Company Shelf Registration Notice. The Shelf Registration Statement shall be effective for a period ending on the earlier of (i) the date on which all Registrable Securities included in such registration have been sold; (ii) the date on which all such securities cease to be Registrable Securities or (iii) the maximum length permitted by the Commission. The Company shall maintain the Shelf Registration Statement in accordance with the terms hereof.
(b) Conversion to Form S-3 . The Company shall use commercially reasonable efforts to convert any Form S-1 Shelf to a Shelf Registration Statement on Form S-3 as soon as reasonably practicable after the Company is eligible to use Form S-3.
(c) Requests for Underwritten Shelf Takedowns . At any time and from time to time after the Shelf Registration Statement has been declared effective by the Commission (but no more frequently than once every consecutive 180 calendar day period), the Required Holders may request to sell all or any portion of their Registrable Securities in an underwritten Public Offering that is registered pursuant to the Shelf Registration Statement (each, an “ Underwritten Shelf Takedown ”); provided , that (i) the Registrable Securities to be covered by any such Underwritten Shelf Takedown will not be less than 5% of the outstanding Common Stock of the Company on the date of the request and (ii) the reasonably anticipated aggregate offering price to the public of all Registrable Securities to be sold pursuant to such Underwritten Shelf Takedown (determined in good faith by the Required Holders requesting the Underwritten Shelf Takedown) shall be in excess of five million dollars ($5 million); provided, further , that the Company will not be required to take any action pursuant to this Section ‎3(c) of this Agreement if within the 90 calendar day period preceding the date of a request for a Underwritten Shelf Takedown, the Company effected a Demand Registration, Underwritten Shelf Takedown or a Piggyback Registration, such Required Holders received notice of such Demand Registration, Underwritten Shelf Takedown or Piggyback Registration, and such Required Holders were able to register and

8


sell pursuant to such registration at least 50% of the Registrable Securities requested to be included in such registration either at the time of the registration or within 30 calendar days thereafter. All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company (a “ Demand Shelf Takedown Notice ”). Each Demand Shelf Takedown Notice shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Within five Business Days after receipt of any Demand Shelf Takedown Notice, the Company shall give written notice of such requested Underwritten Shelf Takedown to all other Holders which have Registrable Securities included on such Shelf Registration (a “ Company Shelf Takedown Notice ”) and, subject to the provisions of Section ‎3(d)‎ below, shall include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after sending the Company Shelf Takedown Notice.
(d) Priority on Underwritten Shelf Takedowns . The Company shall not include in any Underwritten Shelf Takedown that is not a Piggyback Registration any securities which are not Registrable Securities without the prior written consent of the Holders of a majority of the Registrable Securities requested to be included in such Underwritten Shelf Takedown. If the managing underwriters for such Underwritten Shelf Takedown advise the Company and the Holders of Registrable Securities included in the Shelf Takedown in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such Underwritten Shelf Takedown exceeds the number of Registrable Securities and other securities, if any, which can be sold without adversely affecting the marketability, proposed offering price range acceptable to the Holders of a majority of the Registrable Securities requested to be included in such Underwritten Shelf Takedown, timing or method of distribution of the offering, the Company shall include in such Underwritten Shelf Takedown the number of Registrable Securities which can be so sold in the following order of priority: (i) first, the Registrable Securities requested to be included in such Underwritten Shelf Takedown allocated pro rata among the respective Holders of such Registrable Securities on the basis of the number of Registrable Securities owned by each such Holder; and (i) second, other securities requested to be included in such Underwritten Shelf Takedown to the extent permitted hereunder.
(e) Selection of Underwriters . The Holders of a majority of the Registrable Securities initially requesting an Underwritten Shelf Takedown shall, after consultation with the Company, have the right to select the managing underwriters to administer the Public Offering (which shall consist of one or more reputable nationally recognized investment banks).
4. Piggyback Registration.
(a) Right to Piggyback . Whenever the Company proposes to file a Registration Statement under the Securities Act or conduct a Shelf Takedown with respect to a Public Offering of any class of the Company’s Capital Stock (other than a Demand Registration or an Excluded Registration, a “ Piggyback Registration ”), the Company shall give prompt written notice to all Holders of Registrable Securities of its intention to effect such Piggyback Registration and (i) in the case of a Piggyback Registration that is a Shelf Takedown, such notice

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shall be given not less than five (5) Business Days prior to the expected date of commencement of marketing efforts for such Shelf Takedown and (ii) in the case of any other Piggyback Registration, such notice shall be given not less than five (5) Business Days after the public filing of such Registration Statement. The Company shall, subject to the provisions of Section ‎‎4(b) below, include in such Piggyback Registration, as applicable, all Registrable Securities held by Holders on the date of the notice of Piggyback Registration with respect to which the Company has received written requests for inclusion therein within (i) three (3) Business Days in the case of a Shelf Takedown or otherwise (ii) ten (10) Business Days, in each case after the date of the Company’s notice; provided that the Company may not commence marketing efforts for such Public Offering until after such periods and the inclusion of all such securities requested subject to Section ‎‎4(b).
(b) Priority on Piggyback Registrations . For any Piggyback Registration that includes an underwritten Public Offering and the managing underwriters advise the Company in writing that in their reasonable opinion the number of securities requested to be included in such Piggyback Registration exceeds the number of Registrable Securities and other securities, if any, which can be sold without adversely affecting the marketability, proposed offering price range acceptable to the Holders of a majority of the Registrable Securities requested to be included in such Piggyback Registration, timing or method of distribution of the offering, the Company shall include in such Demand Registration the number of Registrable Securities which can be sold without such adverse effect in the following order of priority: (i) first , if the Piggyback Registration includes a primary offering of Company securities for the Company’s own account, the securities offered by the Company thereby; (i)  second , the Registrable Securities requested to be included in such Piggyback Registration by the Holders allocated pro rata among the Holders on the basis of the number of Registrable Securities owned by each Holder; and (i) third , other securities requested to be included in such Piggyback Registration, if any.
(c) Selection of Underwriters . For any Piggyback Registration that includes an underwritten Public Offering, the Company will have the sole right to select the underwriters for the Public Offering, each of which shall be a nationally recognized investment bank, reasonably acceptable to the Holders of a majority of Registrable Securities, if any, to be included in such Public Offering, which approval shall not be unreasonably withheld or delayed.
5. Suspensions; Withdrawals; Notices
(a) Suspensions . The Company may postpone, for up to 60 days from the date of the Demand Registration Notice, Underwritten Shelf Takedown Notice or request for a Shelf Registration Statement, the filing or the effectiveness of a Registration Statement for a Demand Registration or Shelf Registration Statement or suspend the use of a Prospectus that is part of a Shelf Registration for up to 60 days from the date of the Suspension Notice (as defined below) and therefore suspend sales of Registrable Securities included therein by providing written notice to the Holders included in such registration if the Company shall have furnished to the Holders a certificate signed by the Chief Executive Officer (or other authorized officer) of the Company stating that the Company’s Board of Directors has determined in its reasonable good faith judgment that the offer or sale of Registrable Securities should be suspended; provided that the

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Company may not invoke a delay pursuant to this Section ‎5(a) more than twice or for more than sixty (60) days in the aggregate, in each case, in any twelve (12) month period. The Company may invoke this Section ‎5(a) only if the Company’s Board of Directors determines in good faith, after consultation with its external advisors or legal counsel, that the offer or sale of Registrable Securities would reasonably be expected to: (i) have a material adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in any material acquisition of assets or stock (other than in the ordinary course of business) or any material merger, consolidation, tender offer, recapitalization, reorganization or other transaction involving the Company or any of its subsidiaries; or (ii) require premature disclosure of material non-public information that the Company has a bona fide business purpose for preserving as confidential. Furthermore, the Company shall not be required to effect any registration pursuant to this Agreement while awaiting the Commission to declare the effectiveness of a registration statement of the Company.
(b) In the case of an event that causes the Company to suspend the use of a Registration Statement as set forth in Section ‎5(a) or ‎6(a)(vi)(A), (a “ Suspension Event ”), the Company shall give a notice to the Holders of Registrable Securities included in such Registration Statement (a “ Suspension Notice ”) to suspend sales of the Registrable Securities and such notice shall state that such suspension shall continue only for so long as the Suspension Event or its effect is continuing. The Company shall not include any material non-public information in the Suspension Notice and or otherwise provide such information to a Holder unless specifically requested by a Holder in writing. A Holder shall not effect any sales of the Registrable Securities pursuant to such Registration Statement (or such filings) at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice. Holders may recommence effecting sales of the Registrable Securities pursuant to the Registration Statement (or such filings) following further written notice to such effect (an “ End of Suspension Notice ”) from the Company, which End of Suspension Notice shall be given by the Company to the Holders and Counsel to the Holders, if any, promptly following the conclusion of any Suspension Event.
(c) Time Extension . Notwithstanding any provision herein to the contrary, if the Company gives a Suspension Notice with respect to any Registration Statement pursuant to this Section ‎5, the Company agrees that it shall (i) extend the Required Effective Period which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from the date of receipt by the Holders of the Suspension Notice to and including the date of receipt by the Holders of the End of Suspension Notice; and (ii) provide copies of any supplemented or amended prospectus necessary to resume sales, with respect to each Suspension Event; provided that such period of time shall not be extended beyond the date that there are no longer Registrable Securities covered by such Registration Statement.
(d) Withdrawal Requests . At any time prior to the effective date of a Registration Statement, the Required Holders may withdraw such demand or request for registration (“ Withdrawal Request ”) by providing written notice of such withdrawal to the Company. A Withdrawal Request shall count as one of the permitted Demand Registrations or Underwritten Shelf Takedowns hereunder unless: (i) such withdrawal arose out of the fault of the

11


Company; (ii) in the reasonable judgment of the Required Holders, a Material Adverse Effect has occurred; (iii) a Suspension Notice was delivered to the Holders; or (iv) the managing underwriters advise that the amount of Registrable Securities to be sold in such offering be reduced by more than 25% of the Registrable Securities to be included in such Registration Statement. The Company shall pay all Registration Expenses in connection with any Registration Statement subject to a Withdrawal Request. Any Holder may withdraw its request for inclusion of Registrable Securities in a Registration Statement by giving written notice to the Company of its intention to remove its Registrable Securities from such Registration Statement within two Business Days before the earlier of (i) the expected date of the commencement of marketing efforts for the Public Offering in connection with such Registration Statement or (ii) the effectiveness of the Registration Statement.
(e) Limitation of Notices . Notwithstanding anything to the contrary contained in this Agreement, upon the consummation of two Follow-On Offerings, the Company shall only be required to give any notices under this Agreement to Holders of Registrable Securities that the Company has actual knowledge (it being acknowledged that the Company may rely on filings, if any, made by Holders with the Commission on Schedules 13D or 13G) beneficially own at least 10% of the Common Stock outstanding on the date such notice is to be given.
6. Company Undertakings.
(a) Whenever Registrable Securities are registered pursuant to this Agreement, the Company shall use commercially reasonable efforts to effect the registration and the sale of such Registrable Securities as soon as reasonably practicable in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as promptly as reasonably practicable:
(i) prepare and file with the Commission a Registration Statement with regard to such Registrable Securities as soon as reasonably practicable but not later than (i) in the case of a Demand Registration pursuant to Section 2(a)(i) of this Agreement, 120 days, and (ii) in all other cases, 60 days, of its receipt of an applicable notice from the Required Holders (unless the Registration Statement would be required pursuant to the rules and regulations of the Securities Act to include any audited or unaudited consolidated or pro forma financial statements that are not then currently available, in which case, promptly after such financial statements are available) and use commercially reasonable efforts to cause such Registration Statement to become effective as soon thereafter as is reasonably practicable;
(ii) before filing a Registration Statement or Prospectus or any amendments or supplements thereto, furnish to the Holders whose Registrable Securities are requested to be included in the Registration Statement copies of all such documents, other than exhibits, documents that are incorporated by reference and such documents that are otherwise publicly available on EDGAR, proposed to be filed and such other documents reasonably requested by such Holders and provide Counsel to the Holders with a reasonable opportunity to review and comment on such documents of no less than three (3) Business Days;

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(iii) notify each Holder of the effectiveness of each Registration Statement and prepare and file with the Commission such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective for a period of not less than (A) 90 days in the case of a Demand Registration that is not a Shelf Registration or (B) in the case of a Shelf Registration, until the date on which all Registrable Securities have been sold pursuant to the Shelf Registration or have otherwise ceased to be Registrable Securities, (or, in each case, if sooner, until all Registrable Securities have been sold under such Registration Statement), and comply with the provisions of the Securities Act (including by preparing and filing with the Commission any Prospectus or supplement to be used in connection therewith) with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the Holders as set forth in such Registration Statement (each such period as applicable, the “ Required Effective Period ”);
(iv) furnish to each seller of Registrable Securities, and the managing underwriters, without charge, such number of copies of the applicable Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus, final Prospectus, and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any Issuer Free Writing Prospectus)), all exhibits and other documents filed therewith and such other documents as such seller or such managing underwriters may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller, and upon request, a copy of any and all transmittal letters or other correspondence to or received from, the Commission or any other governmental authority relating to such offer;
(v) (A) to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests in writing, (A) keep such registration or qualification in effect for so long as such Registration Statement remains in effect, and (A) to do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller ( provided that the Company shall not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction);
(vi) notify each seller of such Registrable Securities, the managing underwriters and Counsel to the Holders (A) at any time when a Prospectus relating to the applicable Registration Statement is required to be delivered under the Securities Act, (1) upon discovery that, or upon the happening of any event as a result of which, such Registration Statement, or the Prospectus or Issuer Free Writing Prospectus relating to such Registration Statement, or any document incorporated or deemed to be incorporated therein by reference contains an untrue statement of a material fact or omits any material fact necessary to make the statements in the Registration Statement or the Prospectus or Issuer Free Writing Prospectus relating thereto not misleading or otherwise requires the making of any changes in such Registration Statement, Prospectus, Issuer Free Writing Prospectus or document, and, at the

13


request of any such seller, the Company shall promptly prepare a supplement or amendment to such Prospectus or Issuer Free Writing Prospectus, furnish a reasonable number of copies of such supplement or amendment to each seller of such Registrable Securities, Counsel to the Holders and the managing underwriters and file such supplement or amendment with the Commission so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus or Issuer Free Writing Prospectus as so amended or supplemented shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading, (1) as soon as the Company becomes aware of any comments or inquiries by the Commission or any requests by the Commission or any Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus covering Registrable Securities or for additional information relating thereto, (1) as soon as the Company becomes aware of the issuance or threatened issuance by the Commission of any stop order suspending or threatening to suspend the effectiveness of a Registration Statement covering the Registrable Securities or (1) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Security for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (A) when each Registration Statement or any amendment thereto has been filed with the Commission and when each Registration Statement or the related Prospectus or Issuer Free Writing Prospectus or any Prospectus supplement or any post-effective amendment thereto has become effective;
(vii) use commercially reasonable efforts to cause all such Registrable Securities (A) if the Common Stock is then listed on a National Securities Exchange or included for quotation in a recognized trading market, to continue to be so listed or included, (A) if the Registrable Securities are to be distributed in an underwritten Public Offering and the Common Stock is not then listed on a National Securities Exchange or included for quotation in a recognized trading market, to, as promptly as practicable (subject to the limitations set forth in the Plan), be listed on a National Securities Exchange, and (A) to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of the Registrable Securities;
(viii) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities from and after the effective date of the applicable Registration Statement;
(ix) in connection with any underwritten Public Offering (including an Underwritten Shelf Takedown):
(A) enter into and perform under such customary agreements (including underwriting agreements in customary form, including customary representations and warranties and provisions with respect to indemnification and contribution) and take all such other actions as the Holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including

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effecting a stock split, a combination of shares, or other recapitalization) and provide reasonable cooperation, including causing appropriate officers to attend and participate in “road shows” and analyst or investor presentations and such other selling or other informational meetings organized by the underwriters, if any (taking into account the needs of the Company’s businesses and the responsibilities of such officers with respect thereto and the requirement of the marketing process);
(B) use commercially reasonable efforts to obtain and cause to be furnished to each such Holder included in such underwritten Public Offering and the managing underwriters a signed counterpart of (i) one or more comfort letters from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters and (ii) a legal opinion (and negative assurance letter) of counsel to the Company addressed to the relevant underwriters and/or such Holders of Registrable Securities, in each case in customary form and covering such matters of the type customarily covered by such letters as the managing underwriters and/or Holders of a majority of the Registrable Securities included in such underwritten Public Offering reasonably request;
(x) upon reasonable notice and at reasonable times during normal business hours, make available for inspection by any Holder covered by the applicable Registration Statement, Counsel to the Holders, any underwriter participating in any disposition pursuant to such registration, as applicable, and any other attorney or accountant retained by such Holder or underwriter, all financial and other records and pertinent corporate documents of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Registration Statement or Shelf Takedown, as applicable, and make themselves available at mutually convenient times to discuss the business of the Company and other matters reasonably requested by any such Holders, sellers, underwriter or agent thereof in connection with such Registration Statement as shall be necessary (subject to the Company’s compliance with Regulation FD) to enable them to exercise their due diligence responsibility, as applicable (any information provided under this Section ‎6(a)(x), “ Due Diligence Information ”); provided that the Company shall not provide any Due Diligence Information to a Holder unless such Holder explicitly requests such Due Diligence Information in writing.
(xi) permit any Holder which in its reasonable judgment might be deemed to be an Affiliate of the Company, Counsel to the Holders, any underwriter participating in any disposition pursuant to a Registration Statement, and any other attorney, accountant or other agent retained by such Holder or underwriter, to participate (including, but not limited to, reviewing, commenting on and attending all meetings) in the preparation of such Registration Statement and any Prospectus supplements relating to a Shelf Takedown, if applicable;

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(xii) in the event of the issuance or threatened issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, the Company shall use commercially reasonable efforts to (A) prevent the issuance of any such stop order, and in the event of such issuance, to obtain the withdrawal of such order and (A) obtain the withdrawal of any order suspending or preventing the use of any related Prospectus or Issuer Free Writing Prospectus or suspending qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction at the earliest practicable date;
(xiii) provide a CUSIP number for the Registrable Securities prior to the effective date of the first Registration Statement including Registrable Securities;
(xiv) promptly notify in writing the participating Holders, the sales or placement agent, if any, therefor and the managing underwriters of the securities being sold: (A) when such Registration Statement or related Prospectus or Free Writing Prospectus or any Prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to any such Registration Statement or any post-effective amendment, when the same has become effective; and (A) of any written comments by the Commission and by the blue sky or securities commissioner or regulator of any state with respect thereto;
(xv) (A) prepare and file with the Commission such amendments and supplements to each Registration Statement as may be necessary to comply with the provisions of the Securities Act, including post effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable time period required hereunder and, if applicable, file any Registration Statements pursuant to Rule 462(b) promulgated under the Securities Act; (A) cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (A) comply with the provisions of the Securities Act and the Exchange Act and any applicable securities exchange or other recognized trading market with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented; and (A) provide additional information related to each Registration Statement as requested by, and obtain any required approval necessary from, the Commission or any Federal or state governmental authority;
(xvi) cooperate with each Holder and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(xvii) within the deadlines specified by the Securities Act, make all required filing fee payments in respect of any Registration Statement or Prospectus used under this Agreement (and any Public Offering covered thereby);

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(xviii) if requested by any participating Holder or the managing underwriters, promptly include in a Prospectus supplement or amendment such information as the Holder or managing underwriters may reasonably request, including in order to permit the intended method of distribution of such securities, and make all required filings of such Prospectus supplement or such amendment as soon as reasonably practicable after the Company has received such request;
(xix) in the case of certificated Registrable Securities, cooperate with the participating Holders of Registrable Securities and the managing underwriters to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each participating Holder that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the Holders or managing underwriters may reasonably request at least two Business Days prior to any sale of Registrable Securities; and
(xx) use commercially reasonable efforts to take all other actions deemed necessary or advisable in the reasonable judgment of the Company to effect the registration and sale of the Registrable Securities contemplated hereby.
(b) The Company shall hold in confidence and not make any disclosure of information concerning a Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Holder and allow such Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(c) As of the date hereof and except as provided pursuant to the Plan, the Company represents and warrants that it is not a party to, or otherwise subject to, any other agreement granting registration rights to any other Person with respect to any securities of the Company, including securities convertible, exercisable or exchangeable into or for shares of any Capital Stock of the Company.

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(d) With a view to making available certain rules and regulations of the Commission that may permit the sale of the Registrable Securities to the public without registration, after February 1, 2017 and until such date as no Holder owns any Registrable Securities, the Company agrees to:
(i) following the Public Reporting Date, use commercially reasonable efforts to continue to file in a timely manner all reports and other documents required, if any, to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted thereunder;
(ii) make available information necessary to comply with Section 4(a)(7) under the Securities Act and Rule 144, Rule 144A and Regulation S promulgated under the Securities Act, if available, with respect to resales of the Registrable Securities under the Securities Act, at all times, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Section 4(a)(7), Rule 144, Rule 144A and Regulation S promulgated under the Securities Act, as may be amended from time to time, or any other similar rules or regulations now existing or hereafter adopted by the Commission; and
(iii) upon the reasonable written request of any Holder, the Company will deliver to such Holder a written statement as to whether the Company has complied with such information requirements, and, if not, the specific reasons for non-compliance.
(e) The Company agrees that nothing in this Agreement shall prohibit the Holders, at any time and from time to time, from selling or otherwise transferring Registrable Securities pursuant to a private placement or other transaction which is not registered pursuant to the Securities Act. To the extent reasonably requested by a Holder and the total price of the Registrable Securities to be sold or transferred in such sale or transfer is reasonably expected to exceed $5 million, the Company shall assist and cooperate with such Holder to facilitate such sale or transfer by providing Due Diligence Information to potential purchasers consistent with Section ‎6(a)(x).
7. Holder Undertakings
(a) Free Writing Prospectuses . Each Holder represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or used or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of Common Stock without the prior written consent of the Company and, in connection with any underwritten Public Offering, the underwriters. Any such Free Writing Prospectus consented to by the Company and the underwriters, as the case may be, is hereinafter referred to as a “ Permitted Free Writing Prospectus .” The Company represents and agrees that it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

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(b) Information for Inclusion . Each selling Holder that has requested inclusion of its Registrable Securities in any Registration Statement shall furnish to the Company such information regarding such Holder and its plan and method of distribution of such Registrable Securities as the Company may, from time to time, reasonably request in writing. The Company may refuse to proceed with the registration of such Holder’s Registrable Securities if such Holder unreasonably fails to furnish such information within a reasonable time after receiving such request.
(c) Underwritten Public Offering Participation . No Person may participate in any underwritten Public Offering hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements in customary form entered into pursuant to this Agreement and (i) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided that no Holder included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than (A) representations and warranties regarding (1) such Holder’s ownership of its Registrable Securities to be sold or transferred, (1) such Holder’s power and authority to effect such transfer, and (1) such matters pertaining to compliance with securities laws as may be reasonably requested by the Company or the underwriters, and (A) such other representations, warranties and other provisions relating to such Holder’s participation in such Public Offering as may be reasonably requested by the underwriters) or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section ‎‎11(b) hereof, or to the underwriters with respect thereto, except to the extent of the indemnification being given to the underwriters and their controlling Persons in Section ‎‎11(b) hereof.
(d) Price and Underwriting Discounts . In the case of an underwritten Demand Registration or Underwritten Shelf Takedown requested by Holders pursuant to this Agreement, the price, underwriting discount and other financial terms of the related underwriting agreement for the Registrable Securities shall be determined by the Holders representing a majority of the Registrable Securities included in such underwritten Public Offering.
(e) Notice Opt-In and Opt-Out . Notwithstanding anything to the contrary in this Agreement, until a Holder makes an affirmative written election, the Company shall not be required to and shall not deliver any notice or any information to such Holder that would reasonably be expected to constitute material non-public information, including any applicable notices or other information under this Agreement. Upon receipt of written election to receive such notices or information (an “ Opt-In Election ”) the Company shall be required to and shall provide to the Holder all applicable notices or information pursuant to this Agreement from the date of such Opt-In Election. At any time following a Holder making an Opt-In Election, such Holder may also make a written election to no longer receive any such notices or information (an “ Opt-Out Election ”), which election shall cancel any previous Opt-In Election, and, following receipt of such Opt-Out Election, the Company shall not be required to, and shall not, deliver any such notice or information to such Holder from the date of such Opt-Out Election. An Opt-Out Election may state a date on which it expires or, if no such date is specified, shall remain in

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effect indefinitely. A Holder who previously has given the Company an Opt-In Election or Opt-Out Election may revoke such election at any time, and there shall be no limit on the ability of a Holder to issue and revoke subsequent Opt-In Elections and Opt-Out Elections. Should any Holder have made an Opt-In Election and have received a notice or any information that would reasonably be expected to constitute material non-public information (“ MNPI ”), such Holder agrees that it shall treat such MNPI as confidential and shall not disclose or use such MNPI, in each case, without the prior written consent of the Company until such time as such MNPI is or becomes available to the public generally, other than as a result of disclosure by the Holder in breach of the terms of this Agreement; provided that a Holder may deliver or disclose MNPI (A) to its Representatives but solely to the extent such disclosure reasonably relates to its evaluation of exercise of its rights under this Agreement and the sale of any Registrable Securities in connection therewith, such Representatives are bound by confidentiality agreements adopted in good faith to protect confidential information of third parties delivered to such Holder and the Holder remains responsible under this Agreement for any breach of such confidentiality obligations by its Representatives; (B) when disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (C) when disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of any Registration Statement or the use of any Prospectus referred to in this Agreement); (D) when such information becomes generally available to the public other than as a result of a breach of this Agreement or (E) when such information becomes available to any such person from a source other than the Company and such source is not bound by a confidentiality agreement.
8. Registration Expenses.
(a) Expenses . All fees and expenses incurred by the Company in connection with this Agreement (“ Registration Expenses ”) will be borne by the Company. These fees and expenses will include without limitation (i) stock exchange, Commission, FINRA and other registration and filing fees, (i) all fees and expenses incurred in connection with complying with any securities or blue sky laws (including reasonable fees, charges and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), (i) all printing, messenger and delivery expenses, (i) the fees, charges and disbursements of counsel to the Company and of its independent public accountants and any other accounting and legal fees, charges and expenses incurred by the Company (including any expenses arising from any special audits or “comfort letters” required in connection with or incident to any registration) and other Persons retained by the Company, (i) the fees and expenses incurred in connection with the listing of the Registrable Securities on a National Securities Exchange, and (vi) reasonable fees an expenses of any underwriter (for an underwritten offering permitted by the terms of this Agreement) excluding discounts and commissions. For the avoidance of doubt, Registration Expenses shall not include Selling Expenses.
(b) Reimbursement of Counsel . The Company will also reimburse or pay, as the case may be, the Holders of Registrable Securities included in such registration for the reasonable fees and out-of-pocket expenses of the Counsel to the Holders relating to or in connection with any action taken pursuant to this Agreement within 30 calendar days of

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presentation of an invoice approved by such Holders and disbursements of each additional counsel retained by any Holder for the purpose of rendering a legal opinion on behalf of such Holder in connection with any underwritten Public Offering if the managing underwriters of such Public Offering or the Company reasonably request such legal opinion and Counsel to the Holders cannot reasonably provide such legal opinion due to legal jurisdiction or otherwise.
9. Lock-Up Agreements.
(a) Lock-Up Agreements and Market Stand-Off . If required by the Holders of a majority of the Registrable Securities participating in an underwritten Public Offering and requested by the managing underwriters of such Public Offering:
(i) In the absence of any Lock-Up Agreement entered by a Holder, each holder of Registrable Securities agrees, that in connection with the Company’s IPO, such Holder shall not (A) offer, sell, contract to sell, pledge or otherwise dispose of (including sales pursuant to Rule 144 or Section 1145 of the Bankruptcy Code), directly or indirectly, any Capital Stock of the Company (including Capital Stock of the Company that may be deemed to be owned beneficially by such holder in accordance with the rules and regulations of the Commission) (collectively, “ Equity Securities ”), (B) enter into a transaction which would have the same effect as described in clause (A) above, (C) enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences or ownership of any Equity Securities, whether such transaction is to be settled by delivery of such Equity Securities, in cash or otherwise (each of (A), (B) and (C) above, a “Sale Transaction”), or (D) publicly disclose the intention to enter into any Sale Transaction, from the date on which a preliminary prospectus has been circulated for such IPO to the date that is 180 days following the date of the final prospectus for such IPO, unless the underwriters managing the Public Offering otherwise agree in writing; provided that if the Lock-Up Agreement entered by participating Holders in any Public Offering pursuant to Section 9(a)(ii) of this Agreement is any less restrictive than the foregoing provisions, then such less restrictive provisions shall apply; provided further that the foregoing provisions shall only be applicable to the Holders if all stockholders, officers and directors are treated similarly with respect to any release prior to the termination of the restricted period such that if any such persons are released, then all Holders shall also be released to the same extent on a pro rata basis;
(ii) each of the Holders participating in an underwritten Public Offering shall enter into a lock-up agreement with the managing underwriters of such Public Offering to not make any sale or other disposition of any of the Company’s Capital Stock owned by such Holder (a “ Lock-Up Agreement ”), such agreement to be in customary form and substance with customary exceptions; provided that all executive officers and directors of the Company and the Holders requesting such Lock-Up Agreements are bound by and have entered into substantially similar Lock-Up Agreements; provided further the foregoing provisions shall only be applicable to the Holders if all stockholders, officers and directors are treated similarly with respect to any release prior to the termination of the lock-up period such that if any such persons are released, then all Holders shall also be released to the same extent on a pro rata basis.

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(iii) The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the restrictions set forth in this Section ‎9(a) until the end of the applicable period of the Lock-Up Agreement.
(b) Company Lock-Up . In connection with any underwritten Public Offering, and upon the reasonable request of the managing underwriters, the Company shall: (i) agree to a customary lock-up provision applicable to the Company in an underwriting agreement as reasonably requested by the managing underwriters; and (ii) cause each of its executive officers and directors to enter into Lock-Up Agreements, in each case, in customary form and substance, and with exceptions that are customary, for an underwritten Public Offering.
10. Information Rights.
(a) Financial Statements . Prior to the Public Reporting Date, the Company will make publicly available (either by publishing on its website or by other means reasonably intended to make effective, broad and non-exclusionary public disclosure):
(i) no later than the dates specified in the Commission’s rules and regulations (including any extensions provided therein) for a filer that is a “non-accelerated filer” (or any successor term that provides an entity with the greatest time period for filing periodic reports with the SEC) to file quarterly reports on Form 10-Q (or any successor or comparable forms) if the Company were required to file such reports, (i) a balance sheet of the Company as of the end of each of the first, second and third quarterly accounting periods in each fiscal year of the Company, as applicable, and a statement of income and a statement of cash flows of the Company for such period and for the current fiscal year to date, all prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein), subject to year-end audit adjustment, and (ii) a management discussion and analysis of financial condition and results of operations with respect to such financial statements; provided, however , that (i) no such financial statements or management discussion and analysis will be required for the fiscal quarter ended June 30, 2016, (ii) the Company shall have an additional 15 days to furnish such financial statements and management discussion and analysis for the fiscal quarter ended September 30, 2016 and (iii) the Company shall not be required to include comparable prior period financial statements and related information in any quarterly report prior to the quarterly report for the quarter ended September 30, 2017; and
(ii) no later than the dates specified in the Commission’s rules and regulations (including any extensions provided therein) for a filer that is a “non-accelerated filer” (or any successor term that provides an entity with the greatest time period for filing periodic reports with the SEC) to file an annual report on Form 10-K (or any successor or comparable forms) if the Company were required to file such reports, (i) a balance sheet of the Company as of the end of each such fiscal year, and a statement of income and a statement of cash flows of the Company for such year, all prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein) and setting forth in each case in comparative form the figures for the previous fiscal year, and (ii) a management discussion and analysis of financial condition and results of operations with respect to such financial statements ; provided, however , that (i) the Company shall have an additional 30 days to furnish

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such financial statements and management discussion and analysis for the fiscal quarter ended September 30, 2016 and (ii) the Company shall not be required to include comparable prior period financial statements and related information in any annual report prior to the quarterly report for the quarter ended September 30, 2017. Such financial statements shall be accompanied by a report and opinion thereon by independent public accountants selected by the Company’s Board of Directors.
(b) Conference Calls . The Company will arrange and participate in quarterly conference calls to discuss its results of operations no later than three business days following that date on which each of the quarterly and annual reports are made available as provided in Section 10(a) of this Agreement; provided that the Company may limit the information made available during such conference calls to the extent the Company determines, in its sole discretion, that such information (x) would not be material to Holders or to the business, assets, operations or financial positions of the Company and its subsidiaries, taken as a whole, or (y) would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Company and its subsidiaries, taken as a whole; and provided further that (i) no such conference call shall be required in connection with the financial statements and management discussion and analysis for the fiscal quarter ended June 30, 2016, and (ii) the Board of Directors of the Company, acting in good faith, may waive the requirement for such conference call in connection with the financial statements and management discussion and analysis for the fiscal quarter ended September 30, 2016. The Company will provide on its public website (or through a public announcement or such other medium as the Company may use at the time) dial-in conference call information and presentations or materials referred to on such calls, if any, substantially concurrently with the posting of such reports as provided for in Section 10(a) of this Agreement.
11. Indemnification; Contribution.
(a) Indemnification by the Company . The Company agrees to indemnify and hold harmless each Holder registered pursuant to this Agreement, such Holder’s Affiliates, directors, officers, employees, members, managers, agents and any Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any underwriter that facilitates the sale of the Registrable Securities and any Person who controls such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses (“ Losses ”) to which they or any of them may become subject insofar as such Losses arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement pursuant to which Registrable Securities were registered, Prospectus, preliminary prospectus, any road show, as defined in Rule 433(h)(4) under the Securities Act a (“ road show ”), or Issuer Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in the case of any Prospectus, preliminary prospectus, road show or Issuer Free Writing Prospectus, in light of the circumstances under which they were made, to make the statements therein not misleading and

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the Company agrees to reimburse each such indemnified party for any reasonable legal or other reasonable out-of-pocket expenses incurred by them in connection with investigating or defending any such Losses (whether or not the indemnified party is a party to any proceeding); provided , however , that the Company will not be liable in any case to the extent that any such Loss arises out of or is based upon any such untrue or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Indemnification by the Holders . Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers, agents and each Person who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any underwriter that facilitates the sale of Registrable Securities and any Person who controls such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the fullest extent permitted by applicable law, from and against any and all Losses to which they or any of them may become subject insofar as such Losses arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement pursuant to which Registrable Securities were registered, Prospectus, preliminary prospectus, road show, Issuer Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in the case of any Prospectus, preliminary prospectus, road show, Issuer Free Writing Prospectus, in light of the circumstances under which they were made, to make the statements therein not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided , however , that the maximum amount to be indemnified by such Holder pursuant to this Section ‎11(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the Public Offering to which such Registration Statement, Prospectus, preliminary prospectus, road show or Issuer Free Writing Prospectus relates; provided , further , that a Holder shall not be liable in any case to the extent that prior to the filing of any such Registration Statement, Prospectus, preliminary prospectus, road show or Issuer Free Writing Prospectus or any amendment thereof or supplement thereto, each Holder has furnished in writing to the Company, information expressly for use in, and within a reasonable period of time prior to the effectiveness of such Registration Statement or the use of the Prospectus, preliminary prospectus, road show or Issuer Free Writing Prospectus, or any amendment thereof or supplement thereto which corrected or made not misleading information previously provided to the Company. This indemnity agreement will be in addition to any liability which any such Holder may otherwise have.
(c) Conduct of Indemnification Proceedings . Promptly after receipt by an indemnified party under this Section ‎‎11 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party

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under this Section ‎‎11(c), notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under Section ‎‎11(a) or Section ‎‎11(b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in Section ‎‎11(a) or Section ‎‎11(b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if:
(i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with an actual or potential conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party;
(iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.
No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. An indemnifying party shall not be liable under this Section ‎‎11(c) to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party, which consent shall not be unreasonably withheld. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party (which consent

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shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (x) includes as an unconditional term thereof the giving by the claimant or plaintiff therein, to such indemnified party, of a full and final release from all liability in respect to such claim or litigation and (y) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of such indemnified party.
(d) Contribution .
(i) In the event that the indemnity provided in Section ‎‎11(a) or Section ‎11(b)‎ above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate Losses (including reasonable legal or other reasonable out-of-pocket expenses incurred in connection with investigating or defending same) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and by the indemnified party on the other from the Public Offering of the Common Stock; provided , however , that the maximum amount of liability in respect of such contribution shall be limited in the case of any Holder to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in connection with such registration. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(ii) The parties agree that it would not be just and equitable if contribution pursuant to this Section ‎‎11(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section ‎11(d)‎. The amount paid or payable by an indemnified party as a result of the Losses referred to above in this Section ‎‎11(d) shall be deemed to include any reasonable legal or other reasonable out-of-pocket expenses incurred by such indemnified party in connection with investigating or defending any such action or claim.
(iii) Notwithstanding the provisions of this Section ‎‎11(d), no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

26


(iv) For purposes of this Section ‎‎11, each Person who controls any Holder, agent or underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section ‎‎11(d).
(e) The provisions of this Section ‎‎11 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the officers, directors or controlling Persons referred to in this Section ‎‎11 hereof, and will survive the transfer of Registrable Securities.
12. Transfer of Registration Rights.
The rights of a Holder hereunder may be transferred, assigned, or otherwise conveyed on a pro rata basis in connection with any transfer, assignment, or other conveyance of Registrable Securities to any transferee or assignee; provided that all of the following additional conditions are satisfied with respect to any transfer, assignment or conveyance of rights hereunder: (a) such transfer, assignment or conveyance (other than any transfer, assignment or conveyance of rights of a Holder to an Affiliate of such Holder) is for not less than the lesser of (i) 2.5% of the outstanding Common Stock, and (ii) all of the Common Stock initially held by such Holder upon the Effective Date of the Plan; (b) such transfer or assignment is effected in accordance with applicable securities laws; (c) such transferee or assignee agrees in writing to become subject to the terms of this Agreement by executing and delivering to the Company a Joinder; and (d) the Company is given written notice by such Holder within 15 Business Days of such transfer or assignment, stating the name and address of the transferee or assignee, identifying the Registrable Securities with respect to which such rights are being transferred or assigned and the total number of Registrable Securities and other Capital Stock of the Company beneficially owned by such transferee or assignee.
13. Amendment, Modification and Waivers; Further Assurances.
(a) Amendment . This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument, (a) signed by (i) the Company, and (i) the Holders of at least 20% of the Registrable Securities; provided , that no provision of this Agreement shall be modified or amended in a manner that is disproportionately and materially adverse to any Holder, without the prior written consent of such Holder, as applicable, or (b) in the case of a waiver, by the party hereto waiving compliance. Furthermore, this Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived without the consent of Holders in order to comply with any provision of the Plan.
(b) Changes in Common Stock . If, and as often as, there are any changes in the Common Stock by way of stock split, stock dividend, combination or reclassification, or

27


through merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions hereof as may be required so that the rights and privileges granted hereby shall continue with respect to the Registrable Securities as so changed and the Company shall make appropriate provision in connection with any merger, consolidation, reorganization or recapitalization that any successor to the Company (or resulting parent thereof) shall agree, as a condition to the consummation of any such transaction, to expressly assume the Company’s obligations hereunder.
(c) Effect of Waiver . No waiver of any terms or conditions of this Agreement shall operate as a waiver of any other breach of such terms and conditions or any other term or condition, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision hereof. No written waiver hereunder, unless it by its own terms explicitly provides to the contrary, shall be construed to effect a continuing waiver of the provisions being waived and no such waiver in any instance shall constitute a waiver in any other instance or for any other purpose or impair the right of the party against whom such waiver is claimed in all other instances or for all other purposes to require full compliance with such provision. The failure of any party to enforce any provision of this Agreement shall not be construed as a waiver of such provision and shall not affect the right of such party thereafter to enforce each provision of this Agreement in accordance with its terms.
(d) Further Assurances . Each of the parties hereto shall execute all such further instruments and documents and take all such further action as any other party hereto may reasonably require in order to effectuate the terms and purposes of this Agreement.
14. Miscellaneous.
(a) Successors and Assigns . All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto (including any trustee in bankruptcy) whether so expressed or not. In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of purchasers or Holders of Registrable Securities are also for the benefit of, and enforceable by, any subsequent Holder. No assignment or delegation of this Agreement by the Company, or any of the Company’s rights, interests or obligations hereunder, shall be effective against any Holder without the prior written consent of such Holder.
(b) Remedies; Specific Performance . Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically, to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor; provided that the liability of the Holders shall be several and not joint. The parties hereto agree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement and shall not be required to prove irreparable injury to such party or that such party does not have an adequate remedy at law

28


with respect to any breach of this Agreement (each of which elements the parties admit). The parties hereto further agree and acknowledge that each and every obligation applicable to it contained in this Agreement shall be specifically enforceable against it and hereby waives and agrees not to assert any defenses against an action for specific performance of their respective obligations hereunder. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies available under this Agreement or otherwise. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Agreement.
(c) Notices . All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when (i) delivered personally to the recipient, (i) e-mailed or sent by facsimile to the recipient, or (i) one Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid). Such notices, demands and other communications shall be sent to the Company at the address set forth below and to any Holder at the address set forth on the signature page hereto (with copies sent at the address set forth below), or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party.
The Company’s address is:
Contura Energy, Inc.
PO BOX 848
Bristol, TN 37621-0848
Attn: Andy Eidson, Mark Manno
Telephone:
(276) 285-2099 (until August 30, 2016)
(423) 573-0300 (after August 30, 2016)
Facsimile:
(276) 628-3116 (until August 30, 2016)
(423) 573-0448 (after August 30, 2016)
Email:
andy.eidson@conturaenergy.com
mark.manno@conturaenergy.com
Copies of notices to the Holders shall be sent to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York
Attention:
William Taylor
Byron Rooney
E-mail:
william.taylor@davispolk.com; byron.rooney@davispolk.com
If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the State of New York or the jurisdiction in which the Company’s principal office is located, the time period shall automatically be extended to the Business Day immediately following such Saturday, Sunday or legal holiday.

29


(d) No Inconsistent Agreements . The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the Holders of Registrable Securities in this Agreement.
(e) Counterparts . This Agreement may be executed in one or more counterparts, and may be delivered by means of facsimile or electronic transmission in portable document format (“ pdf ”), each of which shall be deemed to be an original and shall be binding upon the party who executed the same, but all of such counterparts shall constitute the same agreement.
(f) Descriptive Headings; Interpretation; No Strict Construction . The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs shall include the plural and vice versa. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and, if applicable, hereof. The words “include,” “includes” or “including” in this Agreement shall be deemed to be followed by “without limitation.” The use of the words “or,” “either” or “any” shall not be exclusive. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. All references to laws, rules, regulations and forms in this Agreement shall be deemed to be references to such laws, rules, regulations and forms, as amended from time to time or, to the extent replaced, the comparable successor thereto in effect at the time. All references to agencies, self-regulatory organizations or governmental entities in this Agreement shall be deemed to be references to the comparable successors thereto from time to time.
(g) Delivery by Facsimile and Electronic Means . This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or other electronic means, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or other electronic means to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or other electronic means as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.

30


(h) Arm’s Length Agreement . Each of the parties to this Agreement agrees and acknowledges that this Agreement has been negotiated in good faith, at arm’s length, and not by any means prohibited by law.
(i) Sophisticated Parties; Advice of Counsel . Each of the parties to this Agreement specifically acknowledges that (i) it is a knowledgeable, informed, sophisticated Person capable of understanding and evaluating the provisions set forth in this Agreement and (i) it has been fully advised and represented by legal counsel of its own independent selection and has relied wholly upon its independent judgment and the advice of such counsel in negotiating and entering into this Agreement.
(j) Governing Law . This Agreement and the exhibits, attachments and annexes hereto shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) to the extent such rules or provisions would cause the application of the laws of any jurisdiction other than the State of New York.
(k) Submission to Jurisdiction . Any action, suit or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby must be brought in the United States District Court for the in the Southern District of New York or any New York state court, in each case, located in the Borough of Manhattan, and each party consents to the exclusive jurisdiction and venue of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such, action, suit or proceeding in any such court or that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
(l) Waiver of Jury Trial . Each of the parties to this Agreement hereby agrees to waive its respective rights to a jury trial of any claim or cause of action based upon or arising out of this Agreement. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this Agreement, including contract claims, tort claims and all other common law and statutory claims. Each party hereto acknowledges that this waiver is a material inducement to enter into this Agreement, that each has already relied on this waiver in entering into this Agreement and that each will continue to rely on this waiver in their related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION ‎‎14(m) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

31


(m) Complete Agreement . This Agreement and any certificates, documents, instruments and writings that are delivered pursuant hereto, represent the complete agreement among the parties hereto as to all matters covered hereby, and supersedes any prior agreements or understandings among the parties.
(n) Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
(o) Termination . This Agreement shall terminate and be of no further force or effect when there shall no longer be any Registrable Securities outstanding; provided , that the provisions of Sections ‎6(b), ‎7(e), ‎8, ‎‎9(a)(i), 11 and ‎14 shall survive any such termination; provided further that any Holder may elect to terminate its obligations under this Agreement by giving the Company written notice thereof subject to the survival of the foregoing provisions; provided further that this Agreement shall automatically terminate with respect to a Holder that no longer holds any Registrable Securities.
(p) Independent Agreement by the Holders . The obligations of each Holder hereunder are several and not joint with the obligations of any other Holder, and no provision of this Agreement is intended to confer any obligations on any Holder vis-à-vis any other Holder. Nothing contained herein, and no action taken by any Holder pursuant hereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated herein.
[ Signature Pages Follow ]






32


IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
CONTURA ENERGY, INC.
By:
/s/ John DeGroote
 
Name: John DeGroote
 
Title: Director, President and Secretary
 
 
Address for Notice:
Contura Energy, Inc.
P.O. Box 848
Bristol, TN 37621-0848






[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
 
Highbridge Tactical Credit & Convertibles Master Fund, L.P.

 
 
By:
Highbridge Capital Management, LLC, as Trading Manager
 
 
 
By:
/s/ Jonathan Segal
 
 
Name: Jonathan Segal
 
 
Title: Managing Director
Address:
40 West 57 th  Street, 32 nd  Floor
New York, NY 10019
 
 
 
Telephone:
212-287-4700
 
 
Fax No.:
 
 
 
E-mail:
jonathan.segal@highbridge.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[   ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
 
Highbridge Tactical Credit & Convertibles Master Fund, L.P.

 
 
By:
Highbridge Capital Management, LLC, as Trading Manager
 
 
 
By:
 
 
 
Name: Jonathan Segal
 
 
Title: Managing Director

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
Highbridge International LLC
By:
Highbridge Capital Management, LLC, as Trading Manager
 
 
 
By:
/s/ Jonathan Segal
 
Name: Jonathan Segal
 
Title: Managing Director
Address:
40 West 57 th  Street, 32 nd  Floor
New York, NY 10019
 
 
 
Telephone:
212-287-4700
 
 
Fax No.:
 
 
 
E-mail:
jonathan.segal@highbridge.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[   ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
Highbridge International LLC
By:
Highbridge Capital Management, LLC, as Trading Manager
 
By:
 
 
Name: Jonathan Segal
 
Title: Managing Director

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
BlueMountain Foinaven Master Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
BlueMountain Foinaven Master Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
Blue Mountain Credit Alternatives Master Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
Blue Mountain Credit Alternatives Master Fund L.P
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
BlueMountain Equity Alternatives Master Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
BlueMountain Equity Alternatives Master Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
BlueMountain Guadalupe Peak Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
BlueMountain Guadalupe Peak Fund L.P
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
BlueMountain Logan Opportunities Master Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
BlueMountain Logan Opportunities Master Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel


[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
BlueMountain Montenvers Master SCA SICAV-SIF
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
BlueMountain Montenvers Master SCA SICAV-SIF
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel


[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
BlueMountain Kicking Horse Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
BlueMountain Kicking Horse Fund L.P.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
BlueMountain Timberline Ltd.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel
Address:
C/O BlueMountain Capital Management, LLC
280 Park Ave, 12 th  Floor
New York, NY 10017
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
legalnotices@bmcm.com
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[ X ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
BlueMountain Timberline Ltd.
By:
BlueMountain Capital Management, LLC, its investment manager
 
 
 
By:
/s/ David M. O'Mara
 
Name: David M. O'Mara
 
Title: Deputy General Counsel

[ Signature Page to Registration Rights Agreement ]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above.
Bay Street Holdings, LLC Series 22 - Contura Energy
 
 
By:
/s/ John T. Rudy
 
Name: John T. Rudy
 
Title: President
Address:
111 West Monroe St.
Chicago, Illinois 60603
 
 
 
Telephone:
 
 
 
Fax No.:
 
 
 
E-mail:
 
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[   ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
[HOLDER]
 
 
By:
 
 
Name:
 
Title:




[ Signature Page to Registration Rights Agreement ]

ANNEX A
Form of Joinder Agreement
THIS JOINDER AGREEMENT is made and entered into by the undersigned with reference to the following facts:
Reference is made to the Registration Rights Agreement, dated as of [•], 2016, as amended (the “ Registration Rights Agreement ”), by and among Contura Energy, Inc., a Delaware corporation (the “ Company ”), the other parties (the “ Holders ”) thereto. Capitalized terms used but not defined in this Joinder Agreement shall have the meanings ascribed thereto in the Registration Rights Agreement.
As a condition to the acquisition of rights under the Registration Rights Agreement in accordance with the terms thereof, the undersigned agrees as follows:
1. The undersigned hereby agrees to be bound by the provisions of the Registration Rights Agreement and undertakes to perform each obligation as if a Holder thereunder and an original signatory thereto in such capacity.
2. This Joinder Agreement shall bind, and inure to the benefit of, the undersigned hereto and its respective devisees, heirs, personal and legal representatives, executors, administrators, successors and assigns.
3. This Joinder Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) to the extent such rules or provisions would cause the application of the laws of any jurisdiction other than the State of New York.
[ Signature Page Follows ]







B-1


IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement.
[ HOLDER ]
By:
 
 
Name:
 
Title:
Date:
 
Address:
 
 
 
 
 
 
 
Phone Number:
 
Facsimile Number:
 
E-mail for Notice:
 
I.R.S. I.D. Number:
 
Amount of Registrable Securities Acquired:
 
To exercise the Opt-In Election pursuant to Section ‎7(e), please check the box below and countersign:
[   ] – The undersigned Holder hereby notifies the Company of its exercise of the Opt-In Election.
[ HOLDER ]
By:
 
 
Name:
 
Title:







[ Signature Page to Joinder Agreement ]
Exhibit 10.7
EXECUTION VERSION


AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 (this “ Amendment ”) to the Registration Rights Agreement (as defined below) dated as of February 24, 2017, by and among Contura Energy, Inc., a Delaware corporation (the “ Company ”) and the holders of Common Stock of the Company set forth on the signature pages hereto (the “ Required Parties ”).
WHEREAS, the Company and certain holders of Common Stock of the Company have heretofore entered into a registration rights agreement (the “ Registration Rights Agreement ”) dated as of July 26, 2016, in connection with the issuance of Common Stock pursuant to the Plan;
WHEREAS, Section 13 of the Registration Rights Agreement states that the Registration Rights Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of the Registration Rights Agreement may be waived, only by a written instrument, (a) signed by (i) the Company, and (ii) the Holders of at least 20% of the Registrable Securities; provided , that no provision of the Registration Rights Agreement shall be modified or amended in a manner that is disproportionately and materially adverse to any Holder, without the prior written consent of such Holder, as applicable, or (b) in the case of a waiver, by the party hereto waiving compliance;

WHEREAS, the Required Parties hold at least 20% of the Registrable Securities; and
WHEREAS, the parties hereto desire to amend the Registration Rights Agreement in the manner set forth below.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Defined Terms . As used in this Amendment, terms defined in the Registration Rights Agreement or in the preamble or recital hereto are used herein as therein defined. The words “ herein ,” “ hereof ” and “ hereby ” and other words of similar import used in this Amendment refer to this Amendment as a whole and not to any particular section hereof.
Section 2. Amendments to the Registration Rights Agreement . As of the date hereof:
(a)
Section 10(a)(i) is hereby amended and restated as follows:
“(i)    within 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Company, (i) a balance sheet of the Company as of the end of each such period, and a statement of income and a statement of cash flows of the Company for such period and for the current fiscal year to date, all prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein), subject to year-end audit adjustment, and (ii) a management discussion and analysis of financial condition and results of operations with respect to such financial statements; provided, however , that (i) no such financial statements or management discussion and analysis will be





required for the fiscal quarter ended June 30, 2016, (ii) the Company shall have an additional 15 days to furnish such financial statements and management discussion and analysis for the fiscal quarter ended September 30, 2016, (iii) the Company shall not be required to include comparable prior period financial statements and related information in any quarterly report prior to the quarterly report for the quarter ended September 30, 2017 and (iv) the Company shall not be required to provide such financial statements or management discussion and analysis if the Company has filed a Registration Statement on either Form S-1 or S-3 with the Commission, or reasonably expects to do so within thirty (30) days; and”;
(b)
Section 10(a)(ii) is hereby amended and restated as follows:
“(ii)    within 90 days after the last day of each fiscal year of the Company, (i) a balance sheet of the Company as of the end of each such fiscal year, and a statement of income and a statement of cash flows of the Company for such year, all prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein) and setting forth in each case in comparative form the figures for the previous fiscal year, (ii) a management discussion and analysis of financial condition and results of operations with respect to such financial statements and (iii) a calculation of EBITDA with a reconciliation to the audited operating and cash flow statements; provided, however , that the Company shall not be required to include comparable prior period financial statements and related information in any annual report prior to the quarterly report for the quarter ended September 30, 2017. Such financial statements shall be accompanied by a report and opinion thereon by independent public accountants selected by the Company’s Board of Directors.”; and
(c)
Section 10(b) is hereby amended and restated as follows:
“ Conference Calls . The Company will arrange and participate in quarterly conference calls to discuss its results of operations no later than three business days following that date on which each of the quarterly and annual reports are made available as provided in Section 10(a) of this Agreement; provided that the Company may limit the information made available during such conference calls to the extent the Company determines, in its sole discretion, that such information (x) would not be material to Holders or to the business, assets, operations or financial positions of the Company and its subsidiaries, taken as a whole, or (y) would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Company and its subsidiaries, taken as a whole; and provided further that (i) no such conference call shall be required in connection with the financial statements and management discussion and analysis for any accounting period prior to the fiscal quarter ended September 30, 2017, and (ii) no conference call shall be required in connection with the financial statements and management discussion and analysis for the fiscal quarter ended September 30, 2017 or any subsequent accounting period if the Company





has an effective Registration Statement on either Form S-1 or S-3 on file with the Commission. The Company will provide on its public website (or through a public announcement or such other medium as the Company may use at the time) dial-in conference call information and presentations or materials referred to on such calls, if any, substantially concurrently with the posting of such reports as provided for in Section 10(a) of this Agreement.”
Section 3. Ratification of Registration Rights Agreement; Amendment Part of Registration Rights Agreement . Except as expressly amended hereby, the Registration Rights Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Amendment shall form a part of the Registration Rights Agreement for all purposes, and every Holder shall be bound hereby.
Section 4. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 5. Counterparts . The parties may sign any number of copies of this Amendment. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 6. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction thereof.
[ Signature Pages Follow ]





IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
CONTURA ENERGY, INC.
By:
/s/ Mark M. Manno
 
Name:      Mark M. Manno
 
Title:        EVP, General Counsel, Secretary & CPO

[ Signature Page to Amendment to Registration Rights Agreement ]



IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
Highbridge Tactical Credit & Convertibles Master Fund, L.P.
By: Highbridge Capital Management, LLC, as Trading
Manager
By:
/s/ Jason Hempel
 
Name:    Jason Hempel
 
Title:      Managing Director

Highbridge International LLC
By: Highbridge Capital Management, LLC, as Trading
Manager
By:
/s/ Jason Hempel
 
Name:    Jason Hempel
 
Title:      Managing Director


[ Signature Page to Amendment to Registration Rights Agreement ]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
BlueMountain Foinaven Master Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Equity Alternatives Master Fund  
L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Guadalupe Peak Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel


[ Signature Page to Amendment to Registration Rights Agreement ]


BlueMountain Logan Opportunities Master Fund  
L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Montenvers Master SCA SICAV-  
SIF  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Kicking Horse Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Timberline Ltd.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel


[ Signature Page to Amendment to Registration Rights Agreement ]
Exhibit 10.8
EXECUTION VERSION


AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 2 (this “ Amendment ”) to the Registration Rights Agreement (as defined below) dated as of October 10, 2017, by and among Contura Energy, Inc., a Delaware corporation (the “ Company ”) and the holders of Common Stock of the Company set forth on the signature pages hereto (the “ Required Parties ”).
WHEREAS, the Company and certain holders of Common Stock of the Company have heretofore entered into a registration rights agreement (the “ Registration Rights Agreement ”) dated as of July 26, 2016, in connection with the issuance of Common Stock pursuant to the Plan;
WHEREAS, on February 24, 2017, the Company and certain holders of Common Stock of the Company entered into Amendment No. 1 (“ Amendment No. 1 ”) to the Registration Rights Agreement;
WHEREAS, Section 13 of the Registration Rights Agreement states that the Registration Rights Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of the Registration Rights Agreement may be waived, only by a written instrument, (a) signed by (i) the Company, and (ii) the Holders of at least 20% of the Registrable Securities; provided , that no provision of the Registration Rights Agreement shall be modified or amended in a manner that is disproportionately and materially adverse to any Holder, without the prior written consent of such Holder, as applicable, or (b) in the case of a waiver, by the party hereto waiving compliance;

WHEREAS, the Required Parties hold at least 20% of the Registrable Securities; and
WHEREAS, the parties hereto desire to amend the Registration Rights Agreement in the manner set forth below.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Defined Terms . As used in this Amendment, terms defined in the Registration Rights Agreement or in the preamble or recital hereto are used herein as therein defined. The words “ herein ,” “ hereof ” and “ hereby ” and other words of similar import used in this Amendment refer to this Amendment as a whole and not to any particular section hereof.
Section 2. Amendment to the Registration Rights Agreement . As of the date hereof, Section 10(b) of the Registration Rights Agreement, as amended and restated by Amendment No. 1, is hereby amended and restated as follows:
“ Conference Calls . The Company will arrange and participate in quarterly conference calls to discuss its results of operations no later than three business days following that date on which each of the quarterly and annual reports are made available as provided in Section 10(a) of this Agreement; provided that the Company may limit the information made available during such conference calls




to the extent the Company determines, in its sole discretion, that such information (x) would not be material to Holders or to the business, assets, operations or financial positions of the Company and its subsidiaries, taken as a whole, or (y) would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Company and its subsidiaries, taken as a whole; and provided further that (i) no such conference call shall be required in connection with the financial statements and management discussion and analysis for any accounting period prior to the fiscal quarter ended March 31, 2018, and (ii) no conference call shall be required in connection with the financial statements and management discussion and analysis for the fiscal quarter ended September 30, 2017 or any subsequent accounting period if the Company has an effective Registration Statement on either Form S-1 or S-3 on file with the Commission. The Company will provide on its public website (or through a public announcement or such other medium as the Company may use at the time) dial-in conference call information and presentations or materials referred to on such calls, if any, substantially concurrently with the posting of such reports as provided for in Section 10(a) of this Agreement.”
Section 3. Ratification of Registration Rights Agreement; Amendment Part of Registration Rights Agreement . Except as expressly amended hereby, the Registration Rights Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Amendment shall form a part of the Registration Rights Agreement for all purposes, and every Holder shall be bound hereby.
Section 4. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 5. Counterparts . The parties may sign any number of copies of this Amendment. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 6. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction thereof.
[ Signature Pages Follow ]




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
CONTURA ENERGY, INC.
By:
/s/ Mark M. Manno
 
Name:    Mark M. Manno
 
Title:      EVP, General Counsel, Secretary & CPO

[ Signature Page to Amendment to Registration Rights Agreement ]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
1992 Tactical Credit Master Fund, L.P.
By: Highbridge Capital Management, LLC, as Trading
Manager
By:
/s/ Jonathan Segal
 
Name:    Jonathan Segal
 
Title:      Managing Director

1992 MSF International Ltd.
By: Highbridge Capital Management, LLC, as Trading
Manager
By:
/s/ Jonathan Segal
 
Name:    Jonathan Segal
 
Title:      Managing Director


[ Signature Page to Amendment to Registration Rights Agreement ]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
BlueMountain Foinaven Master Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Equity Alternatives Master Fund  
L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Guadalupe Peak Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel


[ Signature Page to Amendment to Registration Rights Agreement ]


BlueMountain Logan Opportunities Master Fund  
L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Montenvers Master SCA SICAV-  
SIF  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Kicking Horse Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Timberline Ltd.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel


[ Signature Page to Amendment to Registration Rights Agreement ]
Exhibit 10.9
EXECUTION VERSION

AMENDMENT NO. 3 TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 3 (this “ Amendment ”) to the Registration Rights Agreement (as defined below) is dated as of June 1, 2018, by and among Contura Energy, Inc., a Delaware corporation (the “ Company ”) and the holders of Common Stock of the Company set forth on the signature pages hereto (the “ Required Parties ”).
WHEREAS, the Company and certain holders of Common Stock of the Company have heretofore entered into a registration rights agreement (the “ Registration Rights Agreement ”) dated as of July 26, 2016, in connection with the issuance of Common Stock pursuant to the Plan;
WHEREAS, on February 24, 2017, the Company and certain holders of Common Stock of the Company entered into Amendment No. 1 (“ Amendment No. 1 ”) to the Registration Rights Agreement;
WHEREAS, on October 10, 2017, the Company and certain holders of Common Stock of the Company entered into Amendment No. 2 (“ Amendment No. 2 ”) to the Registration Rights Agreement;
WHEREAS, Section 13 of the Registration Rights Agreement states that the Registration Rights Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of the Registration Rights Agreement may be waived, only by a written instrument, (a) signed by (i) the Company, and (ii) the Holders of at least 20% of the Registrable Securities; provided , that no provision of the Registration Rights Agreement shall be modified or amended in a manner that is disproportionately and materially adverse to any Holder, without the prior written consent of such Holder, as applicable, or (b) in the case of a waiver, by the party hereto waiving compliance;

WHEREAS, the Required Parties hold all Registrable Securities currently outstanding; and
WHEREAS, the parties hereto desire to amend the Registration Rights Agreement in the manner set forth below.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Defined Terms . As used in this Amendment, terms defined in the Registration Rights Agreement or in the preamble or recital hereto are used herein as therein defined. The words “ herein ,” “ hereof ” and “ hereby ” and other words of similar import used in this Amendment refer to this Amendment as a whole and not to any particular section hereof.
Section 2. Amendments to the Registration Rights Agreement . As of the date hereof:
(a)
Section 10(b) of the Registration Rights Agreement, as amended and restated by Amendment No. 1 and Amendment No. 2, is hereby amended and restated as follows:




“ Conference Calls . The Company will arrange and participate in quarterly conference calls to discuss its results of operations no later than three business days following that date on which each of the quarterly and annual reports are made available as provided in Section 10(a) of this Agreement; provided that the Company may limit the information made available during such conference calls to the extent the Company determines, in its sole discretion, that such information (x) would not be material to Holders or to the business, assets, operations or financial positions of the Company and its subsidiaries, taken as a whole, or (y) would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Company and its subsidiaries, taken as a whole; and provided further that (i) no such conference call shall be required in connection with the financial statements and management discussion and analysis for any accounting period ending on or prior to the fiscal year ended December 31, 2018, and (ii) no conference call shall be required in connection with the financial statements and management discussion and analysis for the fiscal quarter ended March 31, 2019 or any subsequent accounting period if the Company has a Registration Statement on Form S-1, S-3 or S-4 on file with the Commission. The Company will provide on its public website (or through a public announcement or such other medium as the Company may use at the time) dial-in conference call information and presentations or materials referred to on such calls, if any, substantially concurrently with the posting of such reports as provided for in Section 10(a) of this Agreement.”
(b)
Section 14(o) of the Registration Rights Agreement, as amended and restated by Amendment No. 1 and Amendment No. 2, is hereby amended and restated as follows:
“ Termination . This Agreement shall terminate and be of no further force or effect when there shall no longer be any Registrable Securities outstanding; provided , that the provisions of Sections 6(b), 7(e), 8, 9(a)(i), 11 and 14 shall survive any such termination; provided further that any Holder may elect to terminate its obligations under this Agreement by giving the Company written notice thereof subject to the survival of the foregoing provisions; provided further that this Agreement shall automatically terminate with respect to a Holder that no longer holds any Registrable Securities; and provided further that this Agreement shall terminate in its entirety and be of no further force or effect upon consummation of the Company’s merger with Alpha Natural Resources Holdings, Inc. and the listing of the Company’s Common Stock on the New York Stock Exchange or the NASDAQ Global Select Market.”
Section 3. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 4. Counterparts . The parties may sign any number of copies of this Amendment. Each signed copy shall be an original, but all of them together represent the same agreement.

2
    


Section 5. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction thereof.
[ Signature Pages Follow ]

3
    


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
CONTURA ENERGY, INC.
By:
/s/ Mark M. Manno
 
Name:    Mark M. Manno
 
Title:      EVP, Chief Administrative & Legal Officer and Secretary

[ Signature Page to Amendment to Registration Rights Agreement ]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
1992 Tactical Credit Master Fund, L.P.
By: Highbridge Capital Management, LLC, as Trading
Manager
By:
/s/ Jonathan Segal
 
Name:    Jonathan Segal
 
Title:      Managing Director

[ Signature Page to Amendment to Registration Rights Agreement ]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
1992 MSF International Ltd.
By: Highbridge Capital Management, LLC, as Trading
Manager
By:
/s/ Jonathan Segal
 
Name:    Jonathan Segal
 
Title:      Managing Director


[ Signature Page to Amendment to Registration Rights Agreement ]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
BlueMountain Foinaven Master Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Equity Alternatives Master Fund  
L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Guadalupe Peak Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

[ Signature Page to Amendment to Registration Rights Agreement ]


BlueMountain Logan Opportunities Master Fund  
L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Montenvers Master SCA SICAV-  
SIF  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Kicking Horse Fund L.P.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

BlueMountain Timberline Ltd.  
By: BlueMountain Capital Management, LLC, its
investment manager
By:
/s/ David M. O’Mara
 
Name:    David M. O’Mara
 
Title:      Deputy General Counsel

[ Signature Page to Amendment to Registration Rights Agreement ]
Exhibit 10.10

SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this “ Agreement ”), dated as of November 3, 2016 (but effective only as of the Settlement Effective Time, as defined below), is by and among (i) Contura Energy, Inc., a Delaware corporation (“ Contura ”), for itself and on behalf of its Subsidiaries; (ii) ANR, Inc., a Delaware corporation (“ ANR ” and, together with the Sellers, Alpha Natural Resources Holdings, Inc. and any Subsidiary of ANR that is not a Seller (as such terms are defined in the APA (as defined below)), the “ Reorganized Debtors ”), for itself and on behalf of all the Reorganized Debtors, including Old ANR, LLC f/k/a Alpha Natural Resources, Inc. (“ Old ANR ”); and (iii) Old ANR on behalf of itself and on behalf of all of the Sellers in its capacity as Sellers’ Representative (as such term is defined in the APA).
WHEREAS , Contura, Old ANR, the subsidiaries of Old ANR set forth on Schedule A of the APA and ANR are parties to that certain Asset Purchase Agreement dated as of July 26, 2016, as amended (the “ APA ”) pursuant to which, among other things, Contura and certain of its subsidiaries purchased certain assets and assumed certain liabilities upon the terms and subject to the conditions set forth in the APA and in the Confirmation Order (as defined below) and, in connection therewith, pursuant to the terms of the Plan (as defined below) and the Confirmation Order, other assets and liabilities were transferred to ANR and/or retained by the Reorganized Debtors;
WHEREAS , capitalized terms used herein but not otherwise defined herein shall have the meanings given to them in the APA;
WHEREAS , on July 12, 2016, the Bankruptcy Court entered an order in the Bankruptcy Case (Docket No. 3038) (the “ Confirmation Order ”) confirming the   Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession (the “ Plan ”) and, among other things, approving the APA as set forth therein;
WHEREAS , on July 26, 2016 (the “ Effective Date ”), the Plan became effective in accordance with its terms, and the transactions contemplated by the APA were consummated;
WHEREAS , on the Effective Date, Contura, ANR and Old ANR entered into the Workers’ Compensation Benefits and Property Tax Discharge Costs Administration Agreement (the “ Benefits and Costs Administration Agreement ”);
WHEREAS , on September 22, 2016, pursuant to Section 2.11(a) of the APA, Contura sent a notice to the Reorganized Debtors calculating the Working Capital Adjustment as $18,814,678 (the “ WC Adjustment Notice ”), which the Reorganized Debtors dispute;
WHEREAS , Contura asserts, among other things, that, pursuant to the APA, Contura has no liability for certain amounts that were not in default as of, and are payable after, the Closing Date under Assumed Contracts and Assumed Leases (together, the “ Assumed


    
 
    

Contracts and Leases ”) but that relate to the period before the Closing, which amounts Contura asserts are Excluded Liabilities;
WHEREAS , ANR asserts, among other things, that pursuant to paragraph 71 of the Confirmation Order, Contura is liable for all amounts that were not in default as of, and are payable after, the Closing Date under Assumed Contracts and Leases, including amounts that relate to the period before the Closing;
WHEREAS , the following additional issues currently are in dispute among Contura, on the one hand, and ANR and Old ANR, on the other hand, (together, the “ Parties ”) relating to the APA and the transactions contemplated therein (collectively with the disputed items referenced above, the “ Disputes ”):
•
liability for, and amount of, the Working Capital Adjustment;
•
ownership of the tax credits identified on Schedule A hereto (collectively, the " Virginia Coal Tax Credit ");
•
ownership of the equipment identified on Schedule B and Schedule C hereto;
•
the treatment of certain trade payables, postpetition property taxes and other Liabilities as either Excluded Liabilities or Assumed Liabilities, including as identified on Schedule D , Schedule E and Schedule F hereto;
WHEREAS , the Parties now desire to resolve amicably the Disputes, pursuant to this Agreement; and
WHEREAS , concurrently with the execution of this Agreement, (a) Alpha Coal Sales Co., LLC (one of the Reorganized Debtors) and Contura Coal Sales, LLC (a Subsidiary of Contura) are executing and delivering an amendment to that certain Master Agreement effective July 26, 2016 (but by its terms subject to the occurrence of the effectiveness of this Agreement at the Settlement Effective Time) between Alpha Coal Sales Co., LLC and Contura Coal Sales, LLC and (b) ANR and the First Lien Agent (as defined in the Plan) are executing an Agreement with respect to the Liabilities set forth on Schedule F hereto (the “ Subject Liabilities Agreement ”).
NOW, THEREFORE, the Parties agree as follows:
Section 1. Settlement .
(A)      Working Capital Adjustment. The Parties hereby agree that, notwithstanding Section 2.11 of the APA and the WC Adjustment Notice, neither CoreCo nor NonCoreCo will be required to make a payment to the other under Section 2.11(d) of the APA, and the Final Working Capital Adjustment for all purposes shall be deemed to be $0.00. Subject to the effectiveness of the Subject Liabilities Agreement and the occurrence

2

of the Settlement Effective Time, ANR and Old ANR, on behalf of themselves and the other Reorganized Debtors, hereby fully and irrevocably waive and release Contura and its Subsidiaries and its and their officers, directors and employees from any and all Liabilities relating in any way to the Final Working Capital Adjustment.
(B)      Virginia Coal Tax Credit. The Parties hereby agree that the Virginia Coal Tax Credit shall be deemed an Excluded Asset for all purposes (and regardless of amount) under the APA and shall be exclusively an asset of the applicable Reorganized Debtors. As promptly as practicable upon the Reorganized Debtors’ written request, Contura shall (i) take all reasonable actions requested by the Reorganized Debtors to allow the applicable Reorganized Debtors to claim the Virginia Coal Tax Credit and (ii) cooperate with the applicable Reorganized Debtors and their representatives in connection therewith.
(C)      Royalty Payments. The Parties hereby acknowledge that on: (i) August 24, 2016, Contura Wyoming Land, LLC made payments to the United States Department of the Interior and the Wyoming State Lands & Investments – Royalty Section in the amounts of $1,911,440.59 and $1,874,773, respectively, relating to royalties with respect to the period on or prior to the Closing Date (the “ Contura Royalty Payments ”); and (ii) subsequent to the Closing Date, ANR made payments of $4,782,167.64 relating to royalties owing under Assumed Leases for the period on or prior to the Closing Date (the “ ANR Royalty Payments ” and, together with the Contura Royalty Payments, the “ Royalty Payments ”). The Parties agree that, solely for settlement purposes, the Contura Royalty Payments shall be treated as Assumed Liabilities, and the ANR Royalty Payments shall be treated as Excluded Liabilities, and neither Party shall have any reimbursement obligation to the other for such payments.
(D)      Equipment. The Parties hereby agree that (i) the assets set forth on Schedule B (the “ Contura Equipment ”) shall be deemed to be Purchased Assets for all purposes under the APA and (ii) the assets set forth on Schedule C shall be deemed to be Excluded Assets for all purposes under the APA. At the Settlement Effective Time, ANR will deliver, or cause to be delivered, to Contura an appropriate instrument of transfer duly evidencing the transfer of the Contura Equipment to a Subsidiary of Contura in the form attached as Exhibit A (the “ Transfer Instrument ”). The Parties agree that the fact that the Transfer Instrument specifically identifying the Contura Equipment is being delivered in respect of the transfer of the Contura Equipment shall in no way be construed as evidence that any instrument of transfer previously delivered in connection with the transactions contemplated by the APA was required to specifically identify assets transferred thereby or was otherwise defective. As promptly as practicable upon Contura’s written request, ANR shall: (i) take all reasonable actions requested by Contura to allow Contura, its Subsidiaries and its and their representatives to remove the Contura Equipment from ANR’s premises; and (ii) cooperate with Contura, its Subsidiaries and its and their representatives in connection therewith. ANR represents and warrants that (i) Independence Coal Company, Inc. n/k/a Independence Coal Company, LLC (“ ICC ”) was the owner of the Contura Equipment as of the Closing (and to the extent good and valid title to the Contura Equipment was not transferred to a Subsidiary of Contura at the Closing, will be the owner of the Contura

3

Equipment as of the Settlement Effective Time) and transferred good and valid title to the Contura Equipment to the Subsidiary of Contura as a Purchased Asset under the APA as of the Closing Date, free and clear of any Encumbrances (or, to the extent not previously so transferred, will transfer at the Settlement Effective Time pursuant to the Transfer Instrument and the APA such good and valid title free and clear of any Encumbrances), and (ii) the Contura Equipment at the Settlement Effective Time will be in the same condition it was in as of the Closing, ordinary wear and tear excepted, and will at such time include (i) all Parts that were integrated into any of the Contura Equipment as of the Closing (or replacement Parts of at least equal value) and (ii) all Parts that as of the Closing Date were owned, used or held for use by ICC or any of its Affiliates primarily in connection with any of the Contura Equipment (or replacement Parts of at least equal value).
(E)      Cash Payment. Concurrently with the Settlement Effective Time, Contura will pay to ANR $1,700,000 in cash, and ANR will acknowledge receipt of such payment.
(F)      Payment of Excluded Liabilities . From and after the date of this Agreement, ANR covenants and agrees that it shall pay all Excluded Liabilities relating to the Purchased Assets or the Purchased Business (the “ Contura Excluded Liabilities ”) no later than when due, as and to the extent payable after taking into account the impact of the Bankruptcy Treatment (as defined below) and without any offset or withholding whatsoever, it being understood that to the extent the due date for a given Contura Excluded Liability is provided for in the Plan, the Confirmation Order, any other order of the Bankruptcy Court (and any settlements previously approved by the foregoing) or applicable law, the due date for purposes hereof shall be as set forth in the Plan, Confirmation Order, other order of the Bankruptcy Court or applicable law, as the case may be, and the nature of the consideration, if any, to be paid likewise will be governed by such documents or applicable law. Notwithstanding the preceding sentence, (i) nothing herein shall prevent or restrict the Reorganized Debtors from contesting the validity or amount of any asserted Contura Excluded Liability (it being understood that the indemnification provided for in the first sentence of Section 2 below shall include any Losses incurred by the Contura Indemnified Parties as a result of any such contest relating to Administrative Claims or Priority Claims under the Plan or other claims payable in cash after taking into account the Bankruptcy Treatment, but only as and to the extent that the Losses relate to any unsuccessful portion of such contest) and (ii) nothing herein shall be construed as an assumption by the Reorganized Debtors of any Contura Excluded Liability to the extent it was discharged, extinguished or compromised under the Plan (including any exhibits thereto), the Confirmation Order or other agreement or order of the Bankruptcy Court (the impact of any such discharge, extinguishment or compromise, the “ Bankruptcy Treatment ”). If the Reorganized Debtors intend to contest the amount or validity of any Contura Excluded Liability that is payable in cash as an Administrative Claim or a Priority Claim or other claim payable in cash after taking into account the Bankruptcy Treatment, then the Reorganized Debtors shall provide Contura with three Business Days’ advance written notice to the extent practicable. The Parties hereby agree that, notwithstanding the Benefits and Costs Administration Agreement, in the case of each payment to be made in respect of property taxes relating to a postpetition period where a portion of the payment to be made

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constitutes an Assumed Liability and a portion constitutes an Excluded Liability, ANR shall pay the full amount of such payment no later than when due, and Contura shall reimburse ANR for the Assumed Liability portion of such payment ( i.e. , the portion relating to the period after the Closing Date) within ten calendar days of receipt of evidence of such payment being made. Except as and to the extent expressly provided in this paragraph 1(F), nothing in this Agreement shall limit or otherwise alter the obligations of the Parties under the Benefits and Costs Administration Agreement.
(G)      Excluded/Assumed Liabilities.
(i)      The Parties hereby agree:
(1)      All Liabilities specifically identified or treated herein as Excluded Liabilities and all Liabilities set forth on Schedule F (the “ Subject Liabilities ”) shall, in each case, be deemed Excluded Liabilities for all purposes under the APA and neither Contura nor any of its Subsidiaries shall have any liability in respect thereof. The dollar amounts on Schedule F are what ANR has represented to be its documented expenses as of October 2016 or, in some cases, ANR’s best estimates of these expenses and projected future expenditures and are provided to illustrate the categories of the Subject Liabilities and their relative size and scope. The Subject Liabilities include the categories of liabilities indicated on Schedule F including the attachments thereto, without regard to whether the estimated dollar amounts ultimately turn out to be correct. Subject to the effectiveness of the Subject Liabilities Agreement and the occurrence of the Settlement Effective Time, ANR and Old ANR, on behalf of themselves and the other Reorganized Debtors, hereby fully and irrevocably waive and release Contura and its Subsidiaries and its and their officers, directors and employees from any and all Liabilities relating in any way to any of the Excluded Liabilities.
(2)      The Parties agree that, other than with respect to the Royalty Payments (which the Parties have agreed will be treated as set forth in Section 1(C) above), Excluded Liabilities on Schedule F hereto (which the Parties have agreed will be treated as set forth in Section 1(G)(i)(1) above) and other Liabilities that are specifically allocated in another provision of this Agreement (which the Parties have agreed will be treated as specifically provided in such other provision), (i) Liabilities arising from a default or breach under any of the Assumed Contracts and Leases that occurred on or before the Closing Date shall be treated as Excluded Liabilities and are therefore not the responsibility of Contura; provided that, for the avoidance of doubt, nothing herein shall be construed as an assumption by the Reorganized Debtors of any Excluded Liability to the extent it was discharged, extinguished or compromised under the Plan (including any exhibits thereto), the Confirmation Order, other orders of the Bankruptcy Court or settlements approved thereby and applicable law and (ii) Liabilities

5

that (A) were not in breach or default as of, and are or were payable after, the Closing Date under any of the Assumed Contracts and Leases and (B) relate to the receipt of goods or services by, or other performance or activities by or for, the Debtors or the Reorganized Debtors on or before the Closing Date shall be treated as Excluded Liabilities to that extent and shall not be the responsibility of Contura regardless of when the payment is due, including any such amounts in Schedule F; provided further , for the avoidance of doubt, that except as provided in clause (i) above, any liability to the extent relating to the receipt of goods or services, or other performance or activities (other than in respect of the receipt of goods or services by, or other performance or activities by or for, the Debtors or the Reorganized Debtors on or before the Closing Date), by Contura under an Assumed Contract or Lease after the Closing Date shall to that extent be an Assumed Liability and not the responsibility of the Debtors or the Reorganized Debtors. The following are illustrations for purposes of clause (ii):
(A)      In the case of an Assumed Contact or Lease with a periodic rent or similar payment, if there is a rent period that includes both the ANR Period and the Contura Period, the rent payment for the period shall be divided based on the number of days in that period that occur in the ANR Period (with that portion being an Excluded Liability) and the number of days in that period that occur in the Contura Period (with that portion being an Assumed Liability).  For purposes hereof, the term “ ANR Period ” means a period of time that ends on the Closing Date, and the term “ Contura Period ” means a period that begins the day after the Closing Date.
(B)      In the case of an Assumed Contract or Lease with a payment based on the amount of coal extracted during a given period that includes both the ANR Period and the Contura Period, the payment for the period shall be divided based on the amount of coal extracted during the ANR Period (with that portion being an Excluded Liability) and the amount of coal extracted during the Contura Period (with that portion being an Assumed Liability.
(C)      In the case of an Assumed Contract or Lease under which a payment has, in accordance with the express terms of such Assumed Contract, been held back as of the Closing Date pending certification of the satisfactory completion of the provision of goods or services thereunder (a “ Holdback Payment ”), the obligation, if any, to make such Holdback Payment will be an Assumed Liability even if the vendor or service provider performed work prior to the Closing. Without limiting the foregoing, the Parties agree that, solely for settlement purposes, the Liabilities set forth on Schedule

6

D will be treated as Assumed Liabilities for all purposes under the APA.
Further, the Parties agree that any post-Closing claims for indemnity or contribution (or similar claims) under Assumed Contracts and Leases that had not matured or become due as of the Closing Date, and did not arise from any breach or default on or prior to the Closing Date, shall be obligations of Contura irrespective of when the events underlying such claim occurred.
(3)      Only the trade accounts payable listed on Schedule E (and only to the extent of the amounts set forth on Schedule E ) (collectively, the “ Assumed Trade Payables ”) shall be deemed to be trade accounts payable falling under the description set forth in Section 2.03(e) of the APA, and accordingly no other trade accounts payable that relate to the period on or before the Closing Date (and regardless of whether the invoice date was before or after the Closing Date) shall be deemed to be Assumed Liabilities for any purpose under the APA.
(4)      ANR hereby confirms that it has not prior to the date hereof paid any Assumed Liabilities (other than Assumed Trade Payables for which ANR has been fully reimbursed by Contura or one of its Subsidiaries prior to the date hereof) and it hereby (i) except as provided in Section 1(E), fully and irrevocably waives any right to receive reimbursement from Contura or any of its Subsidiaries in respect of any amount previously paid and (ii) agrees that all Liabilities in respect of which it has previously made payment (other than Assumed Trade Payables for which ANR has been fully reimbursed by Contura or one of its Subsidiaries prior to the date hereof) will be deemed to be Excluded Liabilities.
(5)      ANR hereby confirms that it has not prior to October 31, 2016 (the “ Specified Date ”) received any invoice in respect of any Assumed Liabilities (other than Assumed Trade Payables) and it hereby (i) fully and irrevocably waives any right to request payment or receive reimbursement from Contura or any of its Subsidiaries in connection with any invoice (other than in respect of Assumed Trade Payables) received by it prior to the Specified Date and (ii) agrees that all Liabilities in respect of any invoice (other than in respect of Assumed Trade Payables) received by it prior to the Specified Date will be deemed to be Excluded Liabilities.
(6)      Notwithstanding the provisions of the APA and the Confirmation Order, and without modifying the treatment of any similar Liabilities under the APA and Confirmation Order, any and all Liabilities arising from subsidence claims relating to Purchased Assets in the Commonwealth of Pennsylvania will be deemed to be Assumed Liabilities.

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(ii)      Except as otherwise specifically provided in this Agreement, the Parties expressly agree and understand that (A) all obligations to the extent relating to goods and services provided to Contura after the Closing Date are obligations of Contura irrespective of the date of any applicable invoices or purchase orders and (B) all obligations to the extent relating to goods and services provided to the Debtors or Reorganized Debtors on or prior to the Closing Date are obligations of the Reorganized Debtors irrespective of the date of any applicable invoices or purchase orders. If Contura, on the one hand, or any Reorganized Debtor, on the other hand, makes a payment in respect of goods or services that are the obligation of the other party, the party making such payment shall be entitled to reimbursement from the other party. The reimbursement obligations of the parties under this paragraph for payments made as of the date of this Agreement are set forth on Schedule G hereto.
Section 2.      Indemnification . ANR hereby fully indemnifies Contura and its Subsidiaries (collectively, the “ Contura Indemnified Parties ”) against, and agrees to hold each Contura Indemnified Party harmless from, any and all Losses suffered or incurred (i) in connection with or arising out of any breach by ANR of any representation, covenant or other provision of this Agreement or (ii) in connection with any contest as specified in Section 1(F), but only as and to the extent that the Losses relate to any unsuccessful portion of such contest. Contura hereby fully indemnifies ANR and the other Reorganized Debtors (collectively, the “ ANR Indemnified Parties ”) against, and agrees to hold each ANR Indemnified Party harmless from, any and all Losses suffered or incurred in connection with or arising out of any breach by Contura of any representation, covenant or other provision of this Agreement.
Section 3.      Representations and Warranties . Contura hereby represents and warrants that it is fully authorized to enter into this Agreement and perform its obligations hereunder and that at the Settlement Effective Time this Agreement will be a valid and binding obligation of Contura enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and general principles of equity that restrict the availability of equitable remedies. ANR and Old ANR hereby represent and warrant that they are fully authorized, in their own capacity and on behalf of all Reorganized Debtors (including in Old ANR’s capacity as Sellers’ Representative), to enter into this Agreement and perform its (and the Reorganized Debtors are authorized to perform their) obligations hereunder and that at the Settlement Effective Time this Agreement will be a valid and binding obligation of the Reorganized Debtors and the Sellers’ Representative enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and general principles of equity that restrict the availability of equitable remedies. Except as set forth in Section 1(D), the Parties make no other representations or warranties of any nature to each other in connection with this Agreement, whether express or implied.

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Section 4.      Costs, Expenses and Attorneys’ Fees . Each Party shall bear its own costs, expenses and attorneys’ fees in connection with the negotiation and preparation of this Agreement. Notwithstanding the foregoing, in the event that a Party is required to take any action to enforce any provision of this Agreement and is successful in connection therewith, it shall be entitled to all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred in connection therewith.
Section 5.      Voluntary Agreement . Each of the Parties acknowledges that this Agreement is executed voluntarily, without duress or undue influence on the part of, or on behalf of the other. Each of the Parties further acknowledges that it has or had the opportunity for representation in the negotiation for, and in the performance of, this Agreement by counsel of its choice, that it has read this Agreement and has had it fully explained by its counsel, and that it is fully aware of the contents of this Agreement. Except as expressly set forth in Sections 1(D) and 3, each of the Parties agrees that it has not made or relied on any representations, warranties, promises, assurances or agreements of any kind made by the other in connection with its decision to execute this Agreement.
Section 6.      Joint Preparation . This Agreement shall be construed as if both Parties jointly prepared it, and any uncertainty or ambiguity in the Agreement shall not be interpreted against any one Party.
Section 7.      Cooperation . The Parties will cooperate fully and will execute any and all supplementary documents and will take all reasonable actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
Section 8.      Entire Agreement . This Agreement, once fully executed by both Parties, supersedes any and all prior agreements between the Parties concerning the subject matter hereof. For the avoidance of doubt, the APA, the Confirmation Order and the documents and agreements previously entered into in connection therewith shall not be superseded by this Agreement, but in the event of any conflict between this Agreement, on the one hand, and the APA, the Confirmation Order or any such document or agreement previously entered into in connection therewith, on the other hand, this Agreement shall prevail with respect to all matters among the Parties and the other Reorganized Debtors.
Section 9.      Counterparts; Effectiveness; Third Party Beneficiaries. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when (a) each Party has received a counterpart hereof signed by the other Parties, (b) ANR has filed a motion with the Bankruptcy Court for approval of this Agreement under Bankruptcy Rule 9019 in a form reasonably acceptable to the Parties, (c) the Agreement has been approved by a final order of the Bankruptcy Court reasonably acceptable to the Parties and (d) the Subject Liabilities Agreement has become effective (the effective time of this Agreement upon the occurrence of each of the foregoing (a) through (d), the “ Settlement Effective Time ”). Until the Settlement Effective Time, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Unless

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the Parties mutually agree otherwise, this Agreement shall terminate and be of no further effect if the Settlement Effective Time has not occurred on or before December 20, 2016, and in such event nothing in this Agreement shall be used by any Party or any Reorganized Debtor, or serve as evidence, in connection with any dispute relating to any matter addressed herein or any other matter. Other than the waivers and releases set forth in Sections 1(A) and 1(G)(i)(1), no provision of this Agreement is intended to confer any rights, benefits, remedies or Liabilities hereunder upon any Person other than Contura and its Subsidiaries and the Reorganized Debtors and their respective successors and assigns.
Section 10.      Incorporation by Reference; Interpretation . The last sentence of Section 1.03(c), the last sentence of Section 7.01, the last sentence of Section 7.14 and the provisions of Sections 12.01, 12.03, 12.05, 12.06, 12.07, 12.08, 12.12 and 12.14 of the APA are incorporated herein by reference and shall apply to this Agreement mutatis mutandis . For the avoidance of doubt, references in this Agreement to ANR include the Sellers and the Sellers shall be bound by the obligations of ANR hereunder.
[ Remainder of Page Intentionally Left Blank ]


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IN WITNESS WHEREOF, the undersigned has executed and agreed to the terms of this Agreement as of the day and year first above written.
 
CONTURA ENERGY, INC.
By:
/s/ Andrew Eidson
 
Name: Andrew Eidson
  
 
Title: EVP - Chief Financial Officer
   




ANR, INC. , for itself and on behalf of all Reorganized Debtors
By:
/s/ Andrew B. McCallister
 
Name: Andrew B. McCallister
  
 
Title: SVP, General Counsel and Secretary
   
 



OLD ANR, LLC , for itself and on behalf of all Sellers in its capacity as Sellers’ Representative
By:
/s/ Andrew B. McCallister

 
Name: Andrew B. McCallister
   
 
Title: SVP, General Counsel and Secretary
  
 

    


EXHIBIT A

Instrument of Transfer for Contura Equipment

Please see attachment.

    


SCHEDULE A
Virginia Coal Tax Credit

“Virginia Coal Tax Credit” means the coalfield employment enhancement tax credits, available under Section 58.1-439.2 of Chapter 3 of the Code of Virginia, attributable to sales occurring prior to the Closing, which have been estimated by the Parties to be approximately the following amounts (it being understood that the actual amounts may be materially higher or lower and no Party shall have any liability to another Party in such a case):

Reorganized
Debtor
Accounts
Account Description
Period Year
Estimated
Credit
Dickenson‑Russell Coal Company, LLC
115225, 190310, 190315
VA CEET Credit, net
2016

$1,728,885.46

Paramont Coal Company, LLC
115225, 190310, 190315
VA CEET Credit, net
2016

$12,282,156.48

Total

$14,011,041.94


For the avoidance of doubt, tax credits attributable to sales occurring after the Closing are not included in the Virginia Coal Tax Credit.




SCHEDULE B
Contura Equipment

Asset Serial Number
Asset Description
EAM Number
Asset Minor Category
141075
495BI BUCYRUS
103495
SHOVEL - BI 495
141075
NEW BASE FOR OPERATOR CAB FOR 495 SHOVEL
103495
SHOVEL - BI 495
141075
NEW INERGEN FIRE SUPPRESSION SYSTEM 495 SHOVEL
 
SHOVEL - BI 495
141075
SHOVEL TRACKS FOR 495 BI BUCYRUS
103495
SHOVEL - BI 495
141075
495BI BUCYRUS-REBUILD
103495
SHOVEL - BI 495
141075
495BI BUCYRUS
 
SHOVEL - BI 495
141075
495BI BUCYRUS
 
SHOVEL - BI 495
141075
495BI BUCYRUS
 
SHOVEL - BI 495
141075
495BI BUCYRUS
 
SHOVEL - BI 495
141075
495BI BUCYRUS
 
SHOVEL - BI 495
141075
495BI BUCYRUS
 
SHOVEL - BI 495
141075
495BI BUCYRUS
 
SHOVEL - BI 495
50581
Komatsu 830E Rock Truck - LBO
1238501
HAULAGE TRUCKS - OFF HIGHWAY
100572
Komatsu 830E Haul Truck 1.0
1238503
HAULAGE TRUCKS - OFF HIGHWAY
100635
Komatsu 830E Haul Truck
1238502
HAULAGE TRUCKS - OFF HIGHWAY
130604
KOMATSU 830E TRUCK WITH BRIDGESTON TIRES LBO
1238500
HAULAGE TRUCKS - OFF HIGHWAY


The Contura Equipment shall include all components and parts related to the foregoing assets (the “ Parts ”), including with respect to the shovel:
•
Mouse houses / trailing cable connection boxes (approx. 8-10 units)
•
12470 / 7200 Substation
•
Trailing cable (approx. 6,000 - 8,000 ft.)



SCHEDULE C
Republic Shovel

Asset Serial Number
Asset Description
EAM
Number
Asset Number
Asset Minor Category
141085
Shovel Upgrade-1 GBT
1031600
21832
SHOVEL - Bl 495
141085
Bucyrus 495 Shovel Swing System
1031600
49272
SHOVEL - Bl 495
141085
Bucket Rebuild (with door)
1031600
S0681
SHOVEL - Bl 495
141085
495 BlBucyrus
1031600
51790
SHOVEL - Bl 495
141085
495 BlBucyrus
1031600
51793
SHOVEL - BJ 495
141085
495 BlBucyrus
1031600
51794
SHOVEL - Bl 495
141085
495 BJBucyrus
1031600
51798
SHOVEL - Bl 495
141085
Rebuild Rails& Rollers on Bucyrus 495 Shovel
1031600
51890
SHOVEL - Bl 495
141085
Undercarriage Rebuild Bucyrus 495 Shovel
1031600
51892
SHOVEL - Bl 495
141085
495 BlBucyrus
1031600
52340
SHOVEL - Bl 495



SCHEDULE D
Nonexclusive Schedule of Specified Assumed Liabilities

All Liabilities under the Contract for Engineering, Procurement, and Construction Services for the Cumberland and Emerald Advanced Water Treatment Plant effective as of May 1, 2015, as amended (the “ Water Treatment Plant Agreement ”), between Veolia Water Technologies, Inc. and Contura Energy Services, LLC (as assignee) in respect of the payment to the Contractor (as defined in the Water Treatment Plant Agreement) consisting of the remaining five percent (5%) of the total Contract Price (as defined in the Water Treatment Plant Agreement) as referenced in Section 5.2.4 and 5.3 of the Water Treatment Plant Agreement.

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NAI-1502137308v27
    


SCHEDULE E
Trade Accounts Payable

Please see Attachment 1 and 2 (for the avoidance of doubt, only the amounts under the “Contura Amount” column of Attachment 2 shall be deemed Assumed Trade Payables).

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NAI-1502137308v27
    


SCHEDULE F
Other Excluded Liabilities

Please see attachment.

#88900914v10    
NAI-1502137308v27
    


SCHEDULE G
Reimbursement Obligations

Please see attachment.

NAI-1502137308v27
    
Exhibit 10.11
EXECUTION VERSION


RECLAMATION FUNDING AGREEMENT
THIS AGREEMENT (as it may be amended or modified from time to time, this “ Reclamation Funding Agreement ”) is made and entered into as of July 12, 2016, by and among: Alpha Natural Resources, Inc. (“ ANR ”), on behalf of itself and its debtor-affiliates (collectively with ANR, the “ Debtors ” or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the “ Reorganized Debtors ”); Contura Energy, Inc. (the “ Purchaser ”); the Illinois Department of Natural Resources; the Kentucky Energy and Environment Cabinet, Department for Natural Resources; the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee (“ OSMRE ”); the Virginia Department of Mines, Minerals and Energy; and the West Virginia Department of Environmental Protection (collectively, the “ Regulatory Authorities ” and, together with the Debtors and the Purchaser, the “ Parties ”) .
WHEREAS, on August 3, 2015 (the “ Petition Date ”), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Court”), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the “Chapter 11 Cases”);
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the “Plan”), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Regulatory Authorities have issued certain permits (collectively, the “ Permits ”) to the Debtors in connection with the Debtors’ operation and reclamation of certain mines and facilities within their respective states or commonwealths (collectively, the “ States ”);
WHEREAS , the Debtors entered into a transaction (the “ Sale Transaction ”) pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith), with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date providing for (a) the sale of certain of the Debtors’ assets to the Purchaser, (b) the assumption of certain of the Debtors’ liabilities by the Purchaser (c) the transfer of certain of the Permits (collectively, the “ Transferred Permits ”) to the Purchaser and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors’ assets that are not sold pursuant to the Sale Transaction (collectively, the “ Retained Assets ”);




WHEREAS , a primary purpose of the Reorganized Debtors will be to hold and satisfy their obligations under the Permits associated with the Retained Assets (collectively, the “ Retained Permits ”) and to complete all reclamation requirements of the Permits associated with the Retained Assets including the management of reclamation activities at certain sites with only reclamation activities to be completed (collectively, the “ Reclaim-Only Sites ”);
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Retained Permits associated with a Reclaim-Only Site by State;
WHEREAS , contemporaneously herewith the Debtors and the Purchaser together have entered into separate settlement agreements (collectively, the “ State Settlement Agreements ”) with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration and water treatment (including long term water treatment) in their respective States in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq . (“SMCRA”), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the “ Mining Laws ”) on Mining Complexes operated under Permits previously issued to ANR and its subsidiaries;
WHEREAS , contemporaneously herewith the Debtors, the Purchaser and Citicorp North America, Inc. (the “ First Lien Agent”) have entered into that certain Stipulation Regarding Water Treatment Obligations (the “ Water Treatment Stipulation ”) with the Environmental Protection Agency (“EPA”) to define the framework and funding for the fulfillment of the Reorganized Debtors’ and the Purchaser’s obligations under the EPA Consent Decree (as defined in the Water Treatment Stipulation) and the Reorganized Debtors’ other water treatment obligations;
WHEREAS , the Parties desire to enter into this Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation and water treatment (including long-term water treatment) and management work to be done on the Reclaim-Only Sites; and
WHEREAS , the terms of this Reclamation Funding Agreement are incorporated into the Plan, and the Parties intend that this Reclamation Funding Agreement and the related State Settlement Agreements shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing, the execution by each of the Regulatory Authorities of their respective State Settlement Agreements and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1.     Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed them in the Plan. In addition to the terms defined above, the following terms have the following meanings herein:

2


(a)    “ Effective Date ” means the date upon which the Plan shall become effective in accordance with its terms.
(b)    “ Free Cash Flow ” means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors’ net working capital, minus capital expenditures, measured for any Quarterly Period.
(c)    “ Funding Threshold Amount ” means the funded amount of a State’s Restricted Cash Reclamation Account that is equal to 125% of the remaining Total Cost of Reclamation in that State.
(d)    “ Fully Reclaim ,” “ Fully Reclaimed ” or “ Full Reclamation ” means, as to any or all Retained Permits, the completion of reclamation, as provided for by the applicable Mining Laws.
(e)    “ Restricted Cash Reclamation Accounts ” means a separate interest bearing segregated deposit account for each of the Regulatory Authorities established pursuant to the applicable State Settlement Agreement in which account such Regulatory Authority shall hold a first priority security interest, perfected by “control” under the applicable Uniform Commercial Code.
(f)    “ Total Cost of Reclamation ” means the estimate of the total cost of reclamation, mitigation, the calculated net present value of the cost of water treatment for the period of time specified by the Regulatory Authority’s standards for long-term water treatment and management associated with the Reorganized Debtors’ mining operations. For the avoidance of doubt, the Reorganized Debtors’ proposed Total Cost of Reclamation for Retained Permits in each State shall be reviewed by each applicable Regulatory Authority for completeness and reasonableness of approach.
2.     Funding of the Restricted Cash Reclamation Accounts by the Purchaser.
(a)     Periodic Payments. In accordance with the allocations determined pursuant to Section 5 hereof, the Purchaser shall pay the aggregate amount of $50,000,000 into the various Restricted Cash Reclamation Accounts as follows:
(i)    $8,000,000 immediately upon the Effective Date;
(ii)    $10,000,000 on the anniversary of the Effective Date in each of 2017, 2018, and 2019; and

3


(iii)    $12,000,000 on the anniversary of the Effective Date in 2020.
(b)     Contingent Payment Obligation . In addition to the amounts paid pursuant to Section 2(a) hereof, and in accordance with the allocations set forth in Section 5 hereof, the Purchaser shall pay up to an aggregate amount of $50,000,000 (the “ Contingent Payment Obligation Cap ”) into the various Restricted Cash Reclamation Accounts as a contingent payment obligation from 2021 through 2025 (the “ Contingent Payment Obligation ”).
(i)    The Purchaser shall make Contingent Payment Obligation contributions into the Restricted Cash Reclamation Accounts up to the Contingent Payment Obligation Cap only in the following circumstances:
(1)    If and to the extent that the Reorganized Debtors do not contribute $50,000,000 of Free Cash Flow into the Restricted Cash Reclamation Accounts through December 31, 2020 as set forth in Section 4(b) hereof; and
(2)    If the Reorganized Debtors make any Reorganized ANR Contingent Revenue Payment (as such term is defined in the Plan) that reduces the amount of Free Cash Flow that the Reorganized Debtors otherwise would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment, then a Contingent Payment Obligation will be payable in the amount of the difference between (A) the amount of Free Cash Flow that the Reorganized Debtors would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment and (B) the amount of Free Cash Flow actually contributed.
(ii)    For the avoidance of doubt, the Purchaser’s obligations under Section 2(b ) (i ) hereof shall be cumulative up to the amount of the Contingent Payment Obligation Cap.
(iii)    The Purchaser shall make any Contingent Payment Obligation contributions up to the Contingent Payment Obligation Cap according to the following schedule, solely to the extent due and payable as of the applicable payment date in accordance with Section 2(b ) (i ) hereof:
(1)    $10,000,000 on the anniversary of the Effective Date in each of 2021, 2022, 2023 and 2024; and

4


(2)    The difference between any Contingent Payment Obligation contributions made and the Contingent Payment Obligation Cap on the anniversary of the Effective Date in 2025.
(c)     Parent Guaranty . The Purchaser’s obligations under this Section 2 shall be guaranteed by its parent, if any.
3.     Limitations on Certain Transactions by the Purchaser. The Purchaser agrees that, for five years after the Effective Date, it will not sell all or substantially all of its assets unless either:
(a)    the purchaser(s) of such assets agree(s) to assume the liabilities of the Purchaser under this Reclamation Funding Agreement; or
(b)    such liabilities are otherwise satisfied or funded.
4.     Funding of the Restricted Cash Reclamation Accounts by the Reorganized Debtors.
(a)     Periodic Payments .
(i)    In accordance with the allocations determined in accordance with Section 5 hereof, the Reorganized Debtors shall pay and deposit the aggregate amount of $109,000,000 into the various Restricted Cash Reclamation Accounts through 2025.
(ii)    Such payments shall be made in the following aggregate amounts: $5,000,000 in 2016, $10,000,000 in each of 2017 and 2018 and $12,000,000 in each year from 2019 through 2025.
(iii)    All such payments shall be made in equal monthly installments in the year in which they are due. The Reorganized Debtors shall make the first payment on or before August 31, 2016 and the remaining payments on or before the last day of each subsequent month through December 2025.
(b)     Excess Cash Flow Payments.
(i)    In addition to the amounts to be paid pursuant to Section 4(a ) above, and in accordance with the allocations determined pursuant to Section 5 hereof, the Reorganized Debtors shall pay and deposit 50% of the Free Cash Flow that they generate into the Restricted Cash Reclamation Accounts. Such payments are over and above the amounts required to be paid in Section 4(a ) above.

5


(ii)    Such payments of Free Cash Flow shall be made with respect to each State until either: (1) all Reclaim-Only sites have been Fully Reclaimed and any long-term water treatment or water management obligations in such State are fully funded and have been covered by a method approved by the regulator for the applicable State (such as a long-term water treatment trust); or (2) the Funding Threshold Amount has been reached with respect to each State, it being understood that once the Funding Threshold Amount for a State has been reached, (A) the Free Cash Flow contribution obligation to the Restricted Cash Reclamation Account for the applicable State shall be reduced to an amount necessary to maintain such Funding Threshold Amount, until such time as all Reclaim-Only Sites have been Fully Reclaimed and (B) the remaining portion of the Free Cash Flow contribution shall be deposited into the Restricted Cash Reclamation Accounts of the remaining States in accordance with the allocations determined pursuant to Section 5 hereof, as adjusted.
(iii)    The Free Cash Flow contributions required under this Section shall be paid within 30 days after each calendar quarter end, subject to reconciliation on an annual basis.
(c)     Surety Collateral Returns .
(i)    Any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer that has issued bonds in only one State will be paid into the Restricted Cash Reclamation Account of that State or otherwise dealt with in accordance with any applicable agreement among the Reorganized Debtors and such State.
(ii)    To the extent any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer whose bonds relate to permits in multiple States, such collateral shall be contributed to the Restricted Cash Reclamation Accounts for the applicable States: (1) in proportion to the dollar amounts of the bonds versus the amount of the collateral until the amount for any such State exceeds its Funding Threshold Amount; and (2) then to the other States in accordance with the allocations set forth in Section 5 hereof, as adjusted.
(d)    In the event of a merger or sale of all or substantially all of the assets of the Reorganized Debtors, then all of the Reorganized Debtors’ obligations under Sections 4(a ) above and 6(c ) below shall either (i) be accelerated and paid in full on a net present value basis into the applicable Restricted Cash Reclamation Accounts or (ii) be assumed by the purchaser or surviving entity, before or at the closing of such transaction;

6


provided , however , that the Restructuring Transactions, including, without limitation, the NewCo Asset Sale, shall not be deemed to be mergers or sales within the meaning of this Section 4(d). For the avoidance of doubt, nothing in this Section 4(d) shall:
(i)    limit or interfere with any Regulatory Authority’s exercise of discretion with respect to approving any permit transfer or other required regulatory approval; or
(ii)    alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
5.     Allocation of Periodic Contributions.
(a)    Periodic contributions required under Sections 2 and 4 (collectively, the “ Periodic Contributions ”) shall be allocated to the applicable States as set forth in this Section 5.
(b)    For the years 2016 through 2018, the Periodic Contributions shall be allocated among the various Restricted Cash Reclamation Accounts based upon the Debtors’ current relative asset retirement obligations in each State, as follows: 83% for West Virginia; 11.25% for Kentucky; 4% for Virginia; 1% for Illinois; and 0.75% for Tennessee.
(c)    Within 90 days of the Effective Date, the Reorganized Debtors shall begin an evaluation of all of their Permits and shall develop a Total Cost of Reclamation for each State. Such evaluation may be the same as any asset retirement obligation analysis previously undertaken by the Debtors. A preliminary Total Cost of Reclamation for each State shall be developed by July 1, 2017 and provided to each of the States at that time for their review and comment. A final Total Cost of Reclamation shall be provided to each of the States for their review and comment by July 1, 2018.
(d)    The allocation of Periodic Contributions to the Restricted Cash Reclamation Accounts shall be reassessed and adjusted bi-annually beginning on January 1, 2019 based upon the Total Cost of Reclamation in each of the States as of July 1, 2018, and the Periodic Contributions required under Sections 2 and 4 shall be made to the various Restricted Cash Reclamation Accounts in accordance with such adjusted allocations.

7


(e)    In the event that the Regulatory Authorities are unable to agree on adjusted allocations based upon the Total Cost of Reclamation, the allocations in Section 5(b ) above shall continue to apply.
(f)    With respect to Tennessee, once the Reclamation Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s Restricted Cash Reclamation Account, as well as future periodic contributions to such account, shall be paid into the Reclamation Trust.
6.     Funding of the Reorganized Debtors’ Water Treatment Obligations Pursuant to the Water Treatment Stipulation
(a)    Pursuant to the Water Treatment Stipulation, the Reorganized Debtors will provide EPA and the Regulatory Authorities for the States in which their water treatment occurs (i) an annual summary of the expenditures on their water treatment for the previous year, (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Reorganized Debtors will provide EPA with copies of any budgets delivered to the Regulatory Authorities in accordance with the terms of the State Settlement Agreements.
(b)     The First Lien Lender Contribution
(i)    Pursuant to the Water Treatment Stipulation, on the Effective Date, the Reorganized Debtors, with the consent of the First Lien Lenders, shall pay from the First Lien Lenders’ collateral an additional $5 million to support the Reorganized Debtors’ compliance with their water treatment obligations (the “ First Lien Lender Contribution ”) .
(ii)    The First Lien Lender Contribution will be allocated equally among the States to be used for water treatment and other approved projects to improve water quality.
(iii)    On or prior to the Effective Date, the Reorganized Debtors shall create either of the following accounts (in either case, a “ Water Treatment Restricted Cash Account ”) with respect to each State to receive such State’s share of the First Lien Lender Contribution: (1) a segregated subaccount within the each State’s Restricted Cash Reclamation Account (as defined in the applicable State Settlement Agreement); or (2) a separate segregated restricted cash account. With respect to Tennessee, once the Water Treatment Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s

8


Water Treatment Restricted Cash Account, as well as future periodic contributions to such account, shall be placed into the Tennessee Water Treatment Trust until the trust is fully funded as determined by OSMRE.
(c)     The Reorganized Debtor Contribution
(i)    Pursuant to the Water Treatment Stipulation, the Reorganized Debtors shall contribute $15 million into the Water Treatment Restricted Cash Accounts from 2017 through 2023 (the “ Reorganized Debtor Contribution ”) to fund compliance with their water treatment obligations, including their obligations under the EPA Consent Decree.
(ii)    The Reorganized Debtor Contribution shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on July 1, 2017:
Y EAR
P AYMENT D ATES
A GGREGATE   A NNUAL  
P AYMENT   A MOUNT
2017
July 1, October 1
$1,000,000
2018
January 1, April 1, July 1, October 1
$1,500,000
2019
January 1, April 1, July 1, October 1
$2,500,000
2020
January 1, April 1, July 1, October 1
$2,500,000
2021
January 1, April 1, July 1, October 1
$2,500,000
2022
January 1, April 1, July 1, October 1
$2,500,000
2023
January 1, April 1, July 1, October 1
$2,500,000
Total
 
$15,000,000

(iii)    The Reorganized Debtor Contribution for 2017 shall be divided equally among the States. Thereafter, (x) the Reorganized Debtors shall provide 20% of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust (as defined in the Water Treatment Stipulation) until such requirement is terminated pursuant to subparagraph (iv) below and (y) the remainder of the annual Reorganized Debtor Contribution shall be divided among the other States according to the percentage of actual expenditures on water treatment in each State; provided that, each State shall receive a minimum of at least $25,000 each year. The Reorganized Debtors will track their spending on water treatment in each State and submit a report to the applicable Regulatory Authority and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year.

9


(iv)    Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent Reorganized Debtor Contribution amounts shall be allocated among the other States in accordance with Section 6(c)(iii)(y) hereof.
(d)    The Reorganized Debtors will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the “ Minimum Balance ”) that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Reorganized Debtors and the applicable Regulatory Authority on an annual basis; provided that, nothing herein requires the Reorganized Debtors to designate more than $1,000,000 as the aggregate amount of Minimum Balances among the Water Treatment Restricted Cash Accounts in 2016. The Reorganized Debtors shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.
(e)    Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the State Settlement Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the State Settlement Agreements. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f)    For the avoidance of doubt, the funding to be provided to the Water Treatment Restricted Cash Accounts pursuant to the Water Treatment Stipulation or to the Restricted Cash Reclamation Accounts pursuant to this Reclamation Funding Agreement shall be used solely to fund the Reorganized Debtors’ obligations thereunder and shall not be used to assist or subsidize the Purchaser’s compliance.
7.     Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Reclamation Funding Agreement:
(a)    The Debtors and the Purchaser shall have executed a State Settlement Agreement with the applicable Regulatory Authority with respect to each State;

10


(b)    This Reclamation Funding Agreement, the Water Treatment Stipulation and the State Settlement Agreements shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(c)    The Plan, as it may be amended consistent with the terms of this Reclamation Funding Agreement and the State Settlement Agreements, shall be confirmed on or before July 15, 2016;
(d)    The Effective Date shall occur on or before July 31, 2016;
(e)    There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First-Lien Lenders, the Second-Lien Lenders and the Unsecured Creditors Committee as filed with the Bankruptcy Court prior to May 25, 2016;
(f)    There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and
(g)    There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.
8.    Reclamation Funding Agreement and the Plan . In the event of a conflict between the terms of this Reclamation Funding Agreement and the Plan, this Reclamation Funding Agreement shall control.
9.    Covenants, Cooperation and Good Faith Efforts. The Parties agree to cooperate and work in good faith with each other to obtain a consensus as to the Total Cost of Reclamation and the allocation of Periodic Contributions as set forth in Section 5 hereof.
10.    Successors and Assigns. The provisions of this Reclamation Funding Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code, and shall inure to the benefit of the Parties and their successors and assigns.
11.    Entire Agreement. This Reclamation Funding Agreement, together with the State Settlement Agreements with respect to each State, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein.

11


12.    Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Reclamation Funding Agreement, and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) the execution, delivery and performance by it of this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Reclamation Funding Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Reclamation Funding Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Reclamation Funding Agreement; and (d) the execution, delivery and performance by it (when such performance is due) of this Reclamation Funding Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to the Regulatory Authorities, the undersigned represents and warrants that he/she has authority to enter into this Reclamation Funding Agreement.
13.    No Reliance. Each Party represents and warrants that in entering into this Reclamation Funding Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Reclamation Funding Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
14.    Modification or Amendment. This Reclamation Funding Agreement may be modified or amended only by written agreement executed by each of the Parties.
15.    Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Reclamation Funding Agreement, and to consummate the transactions contemplated hereby and thereby.

12


16.    Construction. This Reclamation Funding Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Reclamation Funding Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Reclamation Funding Agreement were negotiated at arms’-length, and this Reclamation Funding Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.
17.    Headings. Titles and headings in this Reclamation Funding Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Reclamation Funding Agreement.
18.    Execution in Counterpart. This Reclamation Funding Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Reclamation Funding Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.

13



19.    Severability. If any provision of this Reclamation Funding Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.


(Remainder of Page Intentionally Blank; Signatures to Follow


14


IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
/s/ Mark M. Manno
By: Mark M. Manno
Its: EVP, General Counsel, CPO & Secretary
 
CONTURA ENERGY, INC.
/s/ John DeGroote
By: John DeGroote
Its: President and Secretary
 
WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION

/s/ Kristin A. Boggs
By:  Kristin A. Boggs
Its: General Counsel
 
ILLINOIS DEPARTMENT OF NATURAL RESOURCES

/s/ James Hafliger
By: James Hafliger
Its: Office of Mines and Minerals Director




KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES

/s/ Allen Cottrell
By: Allen Cottrell
Its: Commissioner
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT

/s/ Joseph G. Pizarchik
By: Joseph G. Pizarchik
Its: Director
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY

/s/ John W. Warren
By: John W. Warren
Its: Director
 
 
 
 
 

16




Exhibit 1
[Schedule of Retained Permits]


    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE



COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
S502393
BANDMILL COAL CORPORATION
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S505389
HIGHLAND MINING COMPANY
WV
Bandmill
S505489
HIGHLAND MINING COMPANY
WV
Bandmill
WV1016938
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O504286
TRACE CREEK COAL COMPANY
WV
Ban d m ill
O504691
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
S504186
TRACE CREEK COAL COMPANY
WV
Bandmill
S506288
TRACE CREEK COAL COMPANY
WV
Bandmill
S505389
ALEX ENERGY, INC.
WV
Bandmill
D001982
ARACOMA COAL COMPANY, INC.
WV
Bandmill
U500500
ARACOMA COAL COMPANY, INC.
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
O005082
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
U021383
BANDMILL COAL CORPORATION
WV
Bandmill
O501104
HIGHLAND MINING COMPANY
WV
Bandmill
P501114
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503408
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV

1
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
S508486
HIGHLAND MINING COMPANY
WV
Bandmill
U009283
RUM CREEK COAL SALES, INC.
WV
Bandmill
S500104
RUM CREEK COAL SALES, INC.
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES , LLC
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503897
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O002685
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O500788
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O502386
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O504191
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O505088
COBRA NATURAL RESOURCES , LLC
WV
Bens Creek – Black Bear
S401395
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S504988
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500498
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500590
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503592
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503792
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U504491
COBRA NATURAL RESOURCES , LLC
WV
Bens Creek – Black Bear
S400400
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501307
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S502099
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501608
PREMIUM ENERGY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucum b er
U007584
RIVERSIDE ENERGY COMPANY , LLC
WV
Cucumber
U402387
RIVERSIDE ENERGY COMPANY, LLC
WV
Delbarton
P502112
DELBARTON MINING COMPANY
WV
Elk Run
O506086
EAGLE ENERGY INC.
WV
Elk Run
O004383
EAGLE ENERGY INC.
WV
Elk Run
Prospect
ELK RUN COAL COMPANY, INC.
WV

2
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Elk Run
U066300
ELK RUN COAL COMPANY, INC.
WV
Elk Run
P502213
PERFORMANCE COAL COMPANY
WV
Elk Run
P300114
PERFORMANCE COAL COMPANY
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H052900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H056200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200301
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200787
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S102690
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200205
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200401
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200493
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200593
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200609
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P052600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P201414
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P202014
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
R062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S007185
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051600
BROOKS RUN MINING COMPANY , LLC
WV
Erbacon
U102691
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201005
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201400
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201689
BROOKS RUN MINING COMPANY , LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
UO35900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D000782
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011082
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
I048200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P203507
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200310
BROOKS RUN MINING COMPANY , LLC
WV
Erbacon
S200487
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201498
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U307186
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D004781
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H047100
BROOKS RUN MINING COMPANY, LLC
WV
E r b acon
U101991
BROOKS RUN MINING COMPANY , LLC
WV

3
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Erbacon
U200105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011382
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
R067300
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
O100898
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100893
KINGWOOD MINING COMPANY, LLC
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
U301799
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
U301406
MARFORK COAL COMPANY, INC.
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
P064200
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
R067100
GREEN VALLEY COAL COMPANY
WV
Green Valley
U306686
GREEN VALLEY COAL COMPANY
WV
Green Valley
H035600
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
R069000
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
U300409
GREEN VALLEY COAL COMPANY
WV
Green Valley
U302912
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U301407
GREEN VALLEY COAL COMPANY
WV
Inman Admiral
D010182
BLACK CASTLE MINING COMPANY
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV

4
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S601189
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Ad m i ra l
S602688
ELK RUN COAL COMPANY , INC .
WV
Inman Admiral
S501400
INDEPENDENCE COAL COMPANY, INC.
WV
Inman Admiral
O509588
OMAR MINING COMPANY
WV
Inman Admiral
S007076
OMAR MINING COMPANY
WV
Inman Admiral
U040300
OMAR MINING COMPANY
WV
Kepler
R063000
DUCHESS COAL COMPANY
WV
Kepler
D006982
BIG BEAR MINING COMPANY
WV
Kepler
O010783
BIG BEAR MINING COMPANY
WV
Kepler
O017483
BIG BEAR MINING COMPANY
WV
Kepler
U058900
BIG BEAR MINING COMPANY
WV
Kepler
O005983
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
O007882
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400896
PAYNTER BRANCH MINING, INC.
WV
Kepler
S401298
PAYNTER BRANCH MINING, INC.
WV
Kepler
U503496
PIONEER MINING, INC.
WV
Kepler
U503596
PIONEER MINING, INC.
WV
Kepler
NPDES WV 1012207
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U047100
RIVERSIDE ENERGY COMPANY, LLC
WV
Ke p ler
U402195
RIVERSIDE ENERGY COMPANY , LLC
WV
Kepler
U400196
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400295
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400595
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400695
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400697
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400901
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401100
RIVERSIDE ENERGY COMPANY , LLC
WV
Kepler
U401300
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401497
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401200
RIVERSIDE ENERGY COMPANY, LLC
WV
Kingston
P300115
KINGSTON MINING, INC.
WV
Kingston
 
KINGSTON MINING, INC.
WV
Kingston
P301012
KINGSTON RESOURCES, INC.
WV
Kingston
P301413
KINGSTON RESOURCES , INC .
WV
Kingston
Prospect No. 9
KINGSTON RESOURCES, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV

5
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Liberty
U501887
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501992
OMAR MINING COMPANY
WV
Liberty
U002685
INDEPENDENCE COAL COMPANY , INC .
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501106
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Lib er t y
U500594
INDEPENDENCE COAL COMPANY , INC .
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501398
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U502191
OMAR MINING COMPANY
WV
Liberty
U501892
OMAR MINING COMPANY
WV
Litwar
P402708
BROOKS RUN MINING COMPANY, LLC
WV
Litwar
O011783
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
O007583
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
P300514
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
U400102
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014483
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014883
RIVERSIDE ENERGY COMPANY, LLC
WV
Mammoth
P302013
ALEX ENERGY, INC.
WV
Mammoth
P303212
ALEX ENERGY, INC.
WV
Mammoth
P304412
ALEX ENERGY, INC.
WV
Mammoth
S004577
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007085
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008379
JACKS BRANCH COAL COMPANY
WV
Mammoth
S301491
JACKS BRANCH COAL COMPANY
WV
Mammoth
S303790
JACKS BRANCH COAL COMPANY
WV
Mammoth
S600886
JACKS BRANCH COAL COMPANY
WV
Mammoth
U005584
JACKS BRANCH COAL COMPANY
WV
Mammoth
U300990
JACKS BRANCH COAL COMPANY
WV
Mammoth
U302200
JACKS BRANCH COAL COMPANY
WV
Mammoth
U601889
JACKS BRANCH COAL COMPANY
WV
Mammoth
S000684
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007885
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008883
JACKS BRANCH COAL COMPANY
WV
Mammoth
Z000481
JACKS BRANCH COAL COMPANY
WV
Mammoth
U045400
JACKS BRANCH COAL COMPANY
WV
Mammoth
U301500
JACKS BRANCH COAL COMPANY
WV
Mammoth
E010300
KANAWHA ENERGY COMPANY
WV

6
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Mammoth
E011000
KANAWHA ENERGY COMPANY
WV
Mammoth
O304391
KANAWHA ENERGY COMPANY
WV
Mammoth
P071300
KANAWHA ENERGY COMPANY
WV
Mammoth
P303611
KANAWHA ENERGY COMPANY
WV
Mammoth
R064900
KANAWHA ENERGY COMPANY
WV
Mammoth
S300691
KANAWHA ENERGY COMPANY
WV
Mammoth
S304589
KANAWHA ENERGY COMPANY
WV
Mammoth
S600988
KANAWHA ENERGY COMPANY
WV
Mammoth
S602389
KANAWHA ENERGY COMPANY
WV
Mammoth
U300904
KANAWHA ENERGY COMPANY
WV
Mammoth
U301290
KANAWHA ENERGY COMPANY
WV
Mammoth
P300205
KANAWHA ENERGY COMPANY
WV
Mammoth
P301111
KANAWHA ENERGY COMPANY
WV
Mammoth
P303310
KANAWHA ENERGY COMPANY
WV
Mammo th
P303511
KANAWHA ENERGY COMPANY
WV
Mammoth
S303390
KANAWHA ENERGY COMPANY
WV
Mammoth
O301907
KANAWHA ENERGY COMPANY
WV
Mammoth
U300504
KANAWHA ENERGY COMPANY
WV
Mammoth
U300896
KANAWHA ENERGY COMPANY
WV
Mammoth
U302099
KANAWHA ENERGY COMPANY
WV
Marfork
 
BOONE EAST DEVELOPMENT CO.
WV
Marfork
P300515
MARFORK COAL COMPANY, INC.
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
D004081
CLEAR FORK COAL COMPANY
WV
Marfork
S014278
CLEAR FORK COAL COMPANY
WV
Marfork
U008383
CLEAR FORK COAL COMPANY
WV
Marfork
U013000
CLEAR FORK COAL COMPANY
WV
Marfork
P500213
ELK RUN COAL COMPANY, INC.
WV
Marfork
P300415
KINGSTON MINING, INC.
WV
Marfork
P301513
MARFORK COAL COMPANY, INC.
WV
Marfork
Pending
MARFORK COAL COMPANY, INC.
WV
Marfork
U301394
MARFORK COAL COMPANY, INC.
WV
Marfork
P301011
MARFORK COAL COMPANY, INC.
WV
Marfork
S300809
MARFORK COAL COMPANY, INC.
WV
Marfork
E003800
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
S011977
PIONEER FUEL CORPORATION
WV
Marfork
S400596
PIONEER FUEL CORPORATION
WV
Marfork
S401595
PIONEER FUEL CORPORATION
WV
Marfork
O400708
PIONEER FUEL CORPORATION
WV
Martin County
E001700
GREYEAGLE COAL COMPANY
WV

7
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Martin County
O013983
GREYEAGLE COAL COMPANY
WV
Nicholas
S005185
ALEX ENERGY, INC.
WV
Nicholas
S300199
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY , INC .
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S006385
ALEX ENERGY, INC.
WV
Nicholas
U302494
POWER MOUNTAIN COAL COMPANY
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S300907
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Ni c h oas l
S301405
ALEX ENERGY , INC .
WV
Nicholas
S302003
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S301192
ALEX ENERGY, INC.
WV
Nicholas
S301806
ALEX ENERGY, INC.
WV
Nicholas
H015500
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O002184
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O004183
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300293
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300589
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O301286
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O302093
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S300590
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U300489
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U302194
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O010983
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S008776
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U026900
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U045800
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U065700
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U067600
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300895
POWER MOUNTAIN COAL COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV

8
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rawl
D003181
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O507892
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U066700
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U507192
RAWL SALES & PROCESSING COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O504989
RAWL SALES & PROCESSING COMPANY
WV
Rawl
P057200
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rockspring
Prospect
LAUREL CREEK CO., INC.
WV
Rockspring
U500601
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507292
ARACOMA COAL COMPANY, INC.
WV
Rockspring
S504689
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O501090
ARACOMA COAL COMPANY , INC .
WV
Rockspring
U507692
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U500304
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U501091
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U502006
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O505491
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
U002584
ROCKSPRING DEVELOPMENT, INC.
WV
R oc k spr i ng
P501014
ROCKSPRING DEVELOPMENT , INC .
WV
Rockspring
Pending
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
O503290
ROCKSPRING DEVELOPMENT, INC.
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV

9
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
U501087
STIRRAT COAL COMPANY
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502408
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U301695
PERFORMANCE COAL COMPANY
WV
Twilight
U501295
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
O501496
ELK RUN COAL COMPANY, INC.
WV
Twilight
O507891
ELK RUN COAL COMPANY, INC.
WV
Twilight
U501198
ELK RUN COAL COMPANY, INC.
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S500398
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502396
INDEPENDENCE COAL COMPANY , INC .
WV
Twilight
U502196
INDEPENDENCE COAL COMPANY, INC.
WV
Twin Star
S401197
TWIN STAR MINING, INC. - WV
WV
Unassigned
P500612
INDEPENDENCE COAL COMPANY, INC.
WV
White Flame
S501501
WHITE FLAME ENERGY, INC.
WV
White Flame
S502097
WHITE FLAME ENERGY, INC.
WV
Wabash
39
WABASH MINE HOLDING COMPANY
IL
Wabash
276
WABASH MINE HOLDING COMPANY
IL
Wabash
290
WABASH MINE HOLDING COMPANY
IL
Wabash
158
WABASH MINE HOLDING COMPANY
IL
Wabash
Prospect
WABASH MINE HOLDING COMPANY
IL
Wabash
298
WABASH MINE HOLDING COMPANY
IL
Coalgood
8480322
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480324
HARLAN RECLAMATION SERVICES LLC
KY
C oa l good
8480325
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485533
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487037
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487038
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487039
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488083
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488084
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489031
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489032
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
6805012
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800014
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800062
MARTIN COUNTY COAL CORPORATION
KY

10
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Martin County
8800207
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805179
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805182
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805188
PETER CAVE MINING COMPANY
KY
Martin County
8805189
PETER CAVE MINING COMPANY
KY
Martin County
8805190
PETER CAVE MINING COMPANY
KY
Martin County
8807000
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807002
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808008
PETER CAVE MINING COMPANY
KY
Martin County
8808015
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808016
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808017
PETER CAVE MINING COMPANY
KY
Roxana
8675269
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
2985329
ISLAND CREEK COAL COMPANY
KY
Sidney
2985332
ISLAND CREEK COAL COMPANY
KY
Sidney
8365601
BELFRY COAL CORPORATION
KY
Sidney
8585079
BELFRY COAL CORPORATION
KY
Sidney
8980573
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984146
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984399
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984400
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984424
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984430
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8985167
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985736
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985742
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985977
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985986
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987025
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987094
ROAD FORK DEVELOPMENT COMPANY ,
KY
Sidney
8988168
LONG FORK COAL COMPANY
KY
Sidney
8988170
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989156
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989159
LONG FORK COAL COMPANY
KY
Coalgood
8485532
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485535
HARLAN RECLAMATION SERVICES LLC
KY
Marnti County
8805187
MARTIN COUNTY COAL CORPORATION
KY
Roxana
8675272
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675279
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675280
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675282
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
8984029
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984194
SIDNEY COAL COMPANY, INC.
KY

11
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Sidney
8984431
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984433
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984434
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984435
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984436
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984496
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985739
SIDNEY COAL COMPANY, INC.
KY
Martin County
8805175
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805186
MARTIN COUNTY COAL CORPORATION
KY
Sidney
8980835
SIDNEY COAL COMPANY, INC.
KY
Sidney
8980932
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984095
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987082
SIDNEY COAL COMPANY, INC.
KY
Coalg ood
8485536
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
8800215
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805147
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805180
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807001
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808010
MARTIN COUNTY COAL CORPORATION
KY
Rawl
8984439
NEW RIDGE MINING COMPANY
KY
Roxana
8675268
ENTERPRISE MINING COMPANY , LLC
KY
Roxana
8675278
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675283
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
4985319
ISLAND CREEK COAL COMPANY
KY
Sidney
6985333
ISLAND CREEK COAL COMPANY
KY
Sidney
8980639
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980914
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980915
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980947
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984223
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984418
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984432
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984437
LONG FORK COAL COMPANY
KY
Sidney
8985579
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985646
SIDNEY COAL COMPANY , INC .
KY
Sidney
8985647
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985649
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985735
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985745
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985746
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985751
SIDNEY COAL COMPANY, INC.
KY
Sid ney
8989160
NEW RIDGE MINING COMPANY
KY
Twin Star
1101960
TWIN STAR MINING, INC.
VA

12
    

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Twin Star
1101961
TWIN STAR MINING, INC.
VA
Twin Star
1101966
TWIN STAR MINING, INC.
VA
Twin Star
1101967
TWIN STAR MINING, INC.
VA
Twin Star
1101968
TWIN STAR MINING, INC.
VA
Twin Star
1101981
TWIN STAR MINING, INC.
VA
Twin Star
1201969
TWIN STAR MINING, INC.
VA
Twin Star
1201970
TWIN STAR MINING, INC.
VA
Twin Star
1201973
TWIN STAR MINING, INC.
VA
Twin Star
1301956
TWIN STAR MINING, INC.
VA
Twin Star
1301962
TWIN STAR MINING, INC.
VA
Twin Star
1801971
TWIN STAR MINING, INC.
VA
TCC
2475
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2904
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2885
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2664
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2957
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2982
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2725
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2710
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2882297
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82144
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2282293
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82201
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82077
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2883130
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2283116
TENNESSEE CONSOLIDATED COAL CO .
TN
TCC
82191
TENNESSEE CONSOLIDATED COAL CO.
TN



13
    
Exhibit 10.12


AMENDED RECLAMATION FUNDING AGREEMENT

THIS AMENDED RECLAMATION FUNDING AGREEMENT (as it may be amended or modified from time to time, this " Amended Reclamation Funding Agreement ") is made and entered into as of October 23, 2017, by and among: ANR, Inc. (" ANR "), on behalf of itself and its affiliates; Lexington Coal Company, L.L.C. (the " Purchaser "); Contura Energy, Inc. (“ Contura ”); the Illinois Department of Natural Resources (“ IDNR ”); the Kentucky Energy and Environment Cabinet, Department for Natural Resources (“ KYEEC ”); the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee (" OSMRE "); the Virginia Department of Mines, Minerals and Energy (“ VDMME ”); and the West Virginia Department of Environmental Protection (“ WVDEP ”) (collectively, the " Regulatory Authorities " and, together with ANR, Contura and the Purchaser, the " Parties ").
WHEREAS , the Regulatory Authorities have issued certain permits (collectively, the " Permits ") to ANR and its affiliates in connection with the operation of certain mines and facilities within their respective states or commonwealths (collectively, the " States ");
WHEREAS , in connection with ANR’s confirmed Chapter 11 bankruptcy plan, the Parties, other than the Purchaser, entered into a Reclamation Funding Agreement dated July 12, 2016 (the “ Prior Reclamation Funding Agreement ”) pursuant to which ANR and Contura agreed to provide certain funding for the reclamation, mitigation and water treatment (including long-term water treatment) and management work to be done on ANR’s then-existing permitted sites with only reclamation activities to be completed;
WHEREAS , ANR and Contura have performed all of their respective obligations under the Prior Reclamation Funding Agreement through the Effective Date (as hereinafter defined) of this Amended Reclamation Funding Agreement;
WHEREAS , contemporaneously herewith, ANR is entering into a transaction (the " Sale Transaction ") with the Purchaser providing for (a) the sale of certain of ANR's and its affiliates’ assets to the Purchaser, (b) the assumption of certain of ANR's liabilities by the Purchaser, (c) the transfer of certain of the Permits (collectively, the " Transferred Permits ") to the Purchaser, and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , a primary purpose of the Sale Transaction is for the Purchaser to hold and complete all reclamation and water treatment requirements of the Transferred Permits at certain sites with only reclamation activities remaining to be completed (collectively, the " Reclaim-Only Permits ");
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Transferred Permits, with a designation of Active, Inactive, or Reclaim-Only Permits with respect to those Transferred Permits that so qualify as such, by State;
WHEREAS , contemporaneously herewith, the Purchaser is entering into separate agreements (collectively, the " State Reclamation Agreements ") with each of the Regulatory

1

FINAL DRAFT (Dates Pending)

Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration and water treatment (including long term water treatment) in their respective States in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq . (" SMCRA "), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the " Mining Laws ") on sites operated under the Transferred Permits;
WHEREAS contemporaneously herewith, ANR is entering into separate agreements with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration and water treatment (including long term water treatment), as necessary, in their respective States in accordance with the Mining Laws on certain sites retained by ANR ("State Agreements");
WHEREAS , the Parties desire to enter into this Amended Reclamation Funding Agreement to provide certain ongoing funding for the reclamation, mitigation, and water treatment (including long-term water treatment) and management work to be done by the Purchaser on the Permits transferred to it by ANR and its affiliates; and
WHEREAS , the Parties desire to replace the funding requirements of ANR and Contura under the Prior Reclamation Funding Agreement on and after the Effective Date hereof with the funding obligations contained in this Amended Reclamation Funding Agreement as reflected on Exhibit 2.
NOW THEREFORE , in consideration of the foregoing, the consents of the Regulatory Authorities to the Sale Transaction, the execution by each of the Regulatory Authorities of their respective State Reclamation Agreements and State Agreements and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Definitions. The following terms have the following meanings herein:
(a)      " ANR Cash Bond " means the cash bond ANR posted with the State of West Virginia pursuant to and in accordance with the Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia dated as of July 12, 2016 (as previously amended).
(b)      " Effective Date " means the first date on which all of the conditions to the effectiveness listed in Section 8 hereof have occurred.
(c)      " EPA " means the United States Environmental Protection Agency.
(d)      " Excess Cash Flow " means cash generated by the Purchaser in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Purchaser, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Purchaser’s net working capital, minus capital expenditures, measured for any calendar year, in each case relating to the sites relating to the Transferred Permits. For the avoidance of doubt, Excess Cash Flow includes excess cash flow from sale of incidental coal removed from the Reclaim-Only Sites.

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FINAL DRAFT (Dates Pending)

(e)      " Restricted Cash Account s" means the Restricted Cash Reclamation Accounts and the Water Treatment Restricted Cash Accounts.
(f)      " Restricted Cash Reclamation Accounts " means the separate interest bearing segregated deposit account for each of the Regulatory Authorities in which account each such respective Regulatory Authority holds a first priority security interest, perfected by "control" under the applicable Uniform Commercial Code.
(g)      " Water Treatment Restricted Cash Accounts " means the Water Treatment Restrict Cash Accounts established for each of the Regulatory Authorities pursuant to and in accordance with the Water Treatment Stipulation.
(h)      " Water Treatment Stipulation " means the Stipulation Regarding Water Treatment Obligations dated as of July 12, 2016 by and among ANR, Contura, Citicorp North America, Inc., as Agent, and the EPA.
2.
Funding of the Restricted Cash Reclamation Accounts by ANR.
(a)      On or before the Effective Date, Purchaser shall open new Restricted Cash Accounts under new deposit account control agreements with respect to each State in which there will be Transferred Permits, in form and substance acceptable to the applicable Regulatory Authority, to receive the funds currently in the Restricted Cash Accounts and any future payments or transfers required to be made hereunder by ANR, Contura, and the Purchaser.
(b)      ANR's periodic payments under the Prior Reclamation Funding Agreement from and after the Effective Date hereof shall be amended and superseded to provide for the following payments by ANR into the new Restricted Cash Reclamation Accounts opened by Purchaser pursuant to the allocations set forth in Section 6 hereof and payment directions on Exhibit 2 hereto, as it may be amended from time to time:
(1) On the closing date of the Sale Transaction:
(A)    all cash then in the Restricted Cash Accounts ANR established and maintained pursuant to the Prior Reclamation Funding Agreement; plus
(B)     the difference between
(I) one-hundred thirty nine million, five hundred thousand dollars ($139,500,000) and
(II) the difference between the amount of cash actually in the Restricted Cash Accounts as of the date of the closing and twenty five million, five hundred thousand dollars ($25,500,000) (the "Restricted Cash Threshold"); provided that, if the closing of the transaction between ANR and the Purchaser occurs after September 30, 2017, ANR and the Purchaser may, with WVDEP's consent, agree

3

FINAL DRAFT (Dates Pending)

to adjust the Restricted Cash Threshold to reflect the impact of such delay, it being a condition to this Amended Reclamation Funding Agreement that, after providing for bonding for each of the Transferred Permits and a twenty-five million dollar ($25,000,000) working capital allowance payable to the Purchaser, ANR shall transfer at least fifty million dollars ($50,000,000) of cash consideration pursuant to this Section 2(b)(1)(B), subject to adjustment upon the consent of WVDEP; plus
(C)     the rights to the full amount of the existing $24 million ANR Cash Bond, together with any interest earned thereon, including the rights to any cash that the State of West Virginia returns to ANR if it is determined that the cash cannot be returned directly to the Purchaser. In the event of such return of cash to ANR or the Purchaser, it shall immediately pay into the West Virginia Restricted Cash Reclamation Account when received;
(2)     $17,500,000 on each July 26 of 2018, 2019, 2020, and 2021; and
(3)    $10,000,000 on July 26 of 2022.
3. Funding of Restricted Cash Reclamation Accounts by Contura. Contura’s periodic payments under the Prior Reclamation Funding Agreement from and after the Effective Date hereof shall be amended and superseded to provide for the following payments into the Restricted Cash Reclamation Accounts of the following amounts pursuant to the allocations set forth in Section 6 hereof and payment directions on Exhibit 2 hereto, as it may be amended from time to time:
(a) $10,000,000 on each July 26 of 2018 and 2019; and
(b) $12,000,000 on July 26 of 2020.
From and after the Effective Date, Contura shall have no remaining payment or other obligations (periodic, contingent or otherwise) under the Prior Reclamation Funding Agreement and its only remaining payment obligations with respect to the Restricted Cash Reclamation Accounts are under this Amended Reclamation Funding Agreement, as set forth above.
4. Funding of the Restricted Cash Reclamation Accounts by the Purchaser.
(a)      Surety Collateral Returns .
(i)      Any collateral returned or received by the Purchaser from or with respect to any surety bond issuer that has issued bonds in only one State will be paid into the Restricted Cash Reclamation Account of that State or otherwise dealt with in accordance with any applicable agreement among the Purchaser and such State.
(ii)      To the extent any collateral returned or received by the Purchaser from or with respect to any surety bond issuer whose bonds relate to Permits in

4

FINAL DRAFT (Dates Pending)

multiple States, such collateral shall be contributed to the Restricted Cash Reclamation Accounts for the applicable States: (1) in proportion to the dollar amounts of the bonds versus the amount of the collateral; and (2) then to the other States in accordance with the allocations set forth in Section 6 hereof, as adjusted.
(b)      Excess Cash Flow . Within thirty days after the end of each calendar year, the Purchaser shall transfer all Excess Cash Flow, as defined above, for such calendar year into the Restricted Cash Reclamation Account(s) for the States in which such Excess Cash Flow was generated, except to the extent that the Purchaser and the applicable Regulatory Authority(ies) determine that the Purchaser’s retention of Excess Cash Flow is essential for the Purchaser’s reclamation of the Transferred Permits and continued compliance with its obligations under the applicable State Agreement(s).
5. Other Provisions Relating to the Funding Under this Amended Reclamation Funding Agreement.
(a)      Limitations on Certain Transactions by ANR . ANR agrees that, until it has paid and performed its funding obligations in Section 2 hereof, it will not sell all or substantially all of its assets unless either:
(i)      the purchaser(s) of such assets agree(s) to assume, and has(have) the ability to perform as determined by the Regulatory Authorities, its liabilities under this Amended Reclamation Funding Agreement; or
(ii)      such liabilities are otherwise satisfied or funded.
(b)      Limitations on Certain Transactions by Contura . Contura agrees that, until it has paid and performed its funding obligations in Section 3 hereof, it will not sell all or substantially all of its assets unless either:
(i)      the purchaser(s) of such assets agree(s) to assume, and has(have) the ability to perform as determined by the Regulatory Authorities, its liabilities under this Amended Reclamation Funding Agreement; or
(ii)      such liabilities are otherwise satisfied or funded.
(c)      Funding of Purchaser’s Obligations Only . The funding heretofore or hereafter transferred or paid into the Water Treatment Restricted Cash Accounts pursuant to the Water Treatment Stipulation and into the Restricted Cash Reclamation Accounts pursuant to (prior to the Effective Date) the Prior Reclamation Funding Agreement and (after the Effective Date) the Amended Reclamation Funding Agreement shall be used solely to fund the Purchaser’s reclamation and water treatment obligations with respect to the Permits transferred to it in the Sale Transaction and shall not be used to assist or subsidize ANR’s or the Purchaser’s compliance with or obligations on any other Permits.

5

FINAL DRAFT (Dates Pending)

6. Allocation of Periodic Contributions . The contributions of ANR, Contura, and the Purchaser to the Restricted Cash Accounts on and after the Effective Date shall be allocated to the applicable States as set forth in in Exhibit 2.
7. Funding of the Water Treatment Obligations Pursuant to the Water Treatment Stipulation
(a)      Pursuant to the Water Treatment Stipulation, the Purchaser will provide EPA and the Regulatory Authorities for the States in which their water treatment occurs (i) an annual summary of the expenditures on their water treatment for the previous year, (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Purchaser will provide EPA with copies of any budgets delivered to the Regulatory Authorities in accordance with the terms of the State Agreements.
(b)      With respect to Tennessee, once the Water Treatment Trust (as defined in the State Agreement for Tennessee) is established, any funds in Tennessee’s Water Treatment Restricted Cash Account, as well as future periodic contributions to such account, shall be placed into the Tennessee Water Treatment Trust until the trust is fully funded as determined by OSMRE.
(c)      The ANR Contribution
(i)      Pursuant to the Water Treatment Stipulation, ANR shall continue to perform the obligations of the Reorganized Debtors under the Water Treatment Stipulation and contribute $14.0 million into the Water Treatment Restricted Cash Accounts from the Effective Date through 2023 (the " ANR Contribution ") to fund compliance with the water treatment obligations in connection with the Transferred Permits held by Purchaser, including the Purchaser’s assumed obligations under the EPA Consent Decree (as defined in the Water Treatment Stipulation).
(ii)      The ANR Contribution shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on the Effective Date:
Year
Payment Dates
Aggregate Annual Payment Amount
2018
January 1, April 1, July 1, October 1
$1,500,000
2019
January 1, April 1, July 1, October 1
$2,500,000
2020
January 1, April 1, July 1, October 1
$2,500,000
2021
January 1, April 1, July 1, October 1
$2,500,000
2022
January 1, April 1, July 1, October 1
$2,500,000
2023
January 1, April 1, July 1, October 1
$2,500,000
Total
 
$14,000,000

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FINAL DRAFT (Dates Pending)

(iii)      From and after the Effective Date, (x) ANR shall provide 33% of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust (as defined in the Water Treatment Stipulation) until such requirement is terminated pursuant to subparagraph (iv) below and (y) the remainder of the annual ANR Contribution shall be divided among the other States in which the Purchaser has water treatment obligations according to the percentage of actual expenditures on water treatment in each such State; provided that, each such State shall receive a minimum of at least $25,000 each year. The Purchaser will track its spending on water treatment in each State and submit a report to the applicable Regulatory Authority and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year.
(iv)      Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent ANR Contribution amounts shall be allocated among the other States in accordance with Section 7(c)(iii)(y) hereof.
(d)      The Purchaser will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the " Minimum Balance ") that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Purchaser and the applicable Regulatory Authority on an annual basis; provided that, nothing herein requires the Purchaser to designate more than $1,000,000 as the aggregate amount of Minimum Balances among the Water Treatment Restricted Cash Accounts. The Purchaser shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.
(e)      Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the State Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the State Agreements. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f)      The Minimum Balance of the Tennessee Water Treatment Trust may be adjusted each year by OSMRE to account for an increase in the Minimum Balance due to monetary erosion of the fund from long term inflation. OSMRE may, but is not required to, raise the Minimum Balance each year by an amount equal to the long-term inflation rate. If conditions change on the site that require a change in treatment or treatment system design, OSMRE retains to right to increase or decrease the Minimum Balance required as needed to maintain adequate funds to conduct water treatment and meet the performance goals of

7

FINAL DRAFT (Dates Pending)

the treatment system. The Purchaser shall provide EPA with a copy of the Tennessee Water Treatment Trust agreement and any additional document that establishes the Minimum Balance for the Tennessee Water Treatment Trust.
8. Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Amended Reclamation Funding Agreement:
(a)      the condition set forth in Section 2(b)(1)(B)(II) hereof shall have been satisfied;
(b)      each of the State Agreements and State Reclamation Agreements shall have become effective in accordance with its terms;
(c)      the EPA shall have entered into an amended Water Treatment Stipulation;
(d)      ANR and Contura shall have timely performed all of their respective obligations under the Prior Reclamation Funding Agreement through the Effective Date; and
(e)      the closing date of the Sale Transaction shall have occurred on or before October 10, 2017. [insert date]
9. Events of Default .
(a)      Each of the following shall constitute an Event of Default by the non-performing Party under this Amended Reclamation Funding Agreement:
(i)      the failure of ANR to timely make any payment or transfer due hereunder;
(ii)      the failure of Contura to timely make any payment due hereunder; or
(iii)      the failure of the Purchaser to timely perform its obligations hereunder.
(b)      If an Event of Default occurs with respect to Sections 9(a)(i) and (ii) or the Purchaser shall fail to make a payment or monetary transfer required to be made hereunder, the Purchaser and/or any of the Regulatory Authorities, as the case may be, may provide notice to the applicable non-performing party, i.e., ANR, Contura, or the Purchaser, respectively, as the case may be, of such Event of Default (the " Notice of Payment Default "). For any Event of Default arising pursuant to this Section, ANR, Contura, or the Purchaser, as the case may be, shall have until the date that is ten days from the date of their receipt of the Notice of Payment Default (the " Payment Cure Deadline "), to cure such Event of Default, unless otherwise agreed by and between the Regulatory Authority and the Purchaser.

8

FINAL DRAFT (Dates Pending)

(c)      If an Event of Default other than a payment or monetary transfer default occurs with respect to Section 9(a)(iii), any of the Regulatory Authorities may provide notice to the Purchaser of such Event of Default (the “ Notice of Performance Default ”). For any such Event of Default under this subsection, the Purchaser shall have until the date that is thirty days from the date of its receipt of the Notice of Performance Default (the “ Performance Cure Deadline ”) to cure such Event of Default to the satisfaction of each State Regulatory Authority.
(d)      Upon the occurrence of an Event of Default and its continuation after the Payment Cure Deadline or the Performance Cure Deadline, as applicable, any one or more of the Regulatory Authorities may
(i)      deliver a notice of termination to the Purchaser of the right to use cash in the applicable Restricted Cash Accounts;
(ii)      draw down on any letter of credit or other collateral posted pursuant to this Amended Reclamation Funding Agreement, including without limitation any funds in the applicable Restricted Cash Accounts; and/or
(iii)      take any other regulatory or enforcement action permitted by law, including but not limited to, list the applicable shareholders, directors, officers, employees or agents of ANR or the Purchaser on the Applicant/Violator System.
(e)      No Regulatory Authority shall be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of such Regulatory Authority or any other Regulatory Authority of any right to take any action upon the occurrence of any Event of Default.
(f)      Without limiting any other provision of this Amended Reclamation Funding Agreement, nothing in this Section shall be deemed or construed to limit or otherwise affect the authority or ability of any of the Regulatory Authorities to issue notices of violation or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against the Purchaser, ANR or any other person or entity or in respect of any Permits or mining sites in the States, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g)      An Event of Default by the Purchaser shall not be construed to require ANR or Contura to cure such defaults or otherwise make them liable for such defaults. Similarly, an Event of Default (i) by ANR shall not be construed to require Contura or the Purchaser to cure such default or otherwise make Contura or the Purchaser liable for such default or (ii) by Contura shall not be construed to require ANR or the Purchaser to cure such default or otherwise make ANR or the Purchaser liable for such default.
10. Construction. Nothing in this Amended Reclamation Funding Agreement shall be construed as limiting or interfering with any Regulatory Authority's exercise of discretion with respect to approving any permit transfer or other required regulatory approval or alter or affect the

9

FINAL DRAFT (Dates Pending)

obligations of the Purchaser or any of their successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
11. Successors and Assigns. The provisions of this Amended Reclamation Funding Agreement shall be binding on the Parties and their successors and assigns, as applicable, and shall inure to the benefit of the Parties and their successors and assigns.
12. Entire Agreement. This Amended Reclamation Funding Agreement, together with the State Agreements and State Reclamation Agreements with respect to each State, constitute the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein.
13. Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges represents, warrants and acknowledges, as of the Effective Date, that: (a) it has all the requisite authority (i) to execute and deliver this Amended Reclamation Funding Agreement, and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Amended Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) the execution, delivery and performance by it of this Amended Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Amended Reclamation Funding Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Amended Reclamation Funding Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Amended Reclamation Funding Agreement; and (d) the execution, delivery and performance by it (when such performance is due) of this Amended Reclamation Funding Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to the Regulatory Authorities, the undersigned represents and warrants that he/she has authority to enter into this Amended Reclamation Funding Agreement.
14. No Reliance. Each Party represents and warrants that in entering into this Amended Reclamation Funding Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Amended Reclamation Funding Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
15. Modification or Amendment. This Amended Reclamation Funding Agreement may be modified or amended only by written agreement executed, and agreed to, by each of the Parties.

10

FINAL DRAFT (Dates Pending)

16. Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Amended Reclamation Funding Agreement, and to consummate the transactions contemplated hereby.
17. Construction. This Amended Reclamation Funding Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Amended Reclamation Funding Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Amended Reclamation Funding Agreement were negotiated at arms'-length, and this Amended Reclamation Funding Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.
18. Headings. Titles and headings in this Amended Reclamation Funding Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Amended Reclamation Funding Agreement.
19. Execution in Counterpart. This Amended Reclamation Funding Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Amended Reclamation Funding Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.
20. Severability. If any provision of this Amended Reclamation Funding Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
(Remainder of Page Intentionally Blank; Signatures to Follow)


11


IN WITNESS WHEREOF, the Parties hereto have executed this Amended Reclamation Funding Agreement as of the date set forth above.


ANR, INC.,



/s/ Andrew B. McCallister
___________________________________
By: Andrew B. McCallister
Its: Senior Vice President, General Counsel and Secretary


CONTURA ENERGY, INC.


/s/ Mark M. Manno
___________________________________
By: Mark M. Manno
Its: EVP, General Counsel, Secretary and CPO


WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION


/s/ Kristin A. Boggs
___________________________________
By: /s/ Kristin A. Boggs
Its: General Counsel


ILLINOIS DEPARTMENT OF NATURAL RESOURCES


/s/ Thomas A. Benner
___________________________________
By: Thomas A. Benner
Its: Director of Mines and Minerals




KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES


/s/ Charles G. Snavely
___________________________________
By: Charles G. Snavely
Its: Secretary


OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT


/s/ Glenda H. Owens
___________________________________
By: Glenda H. Owens
Its: Acting Director


LEXINGTON COAL COMPANY, LLC


/s/ Steven R. Poe
___________________________________
By: Steven R. Poe
Its: Manager


VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY


/s/ John Warren
___________________________________
By: John Warren
Its: Director





Exhibit 10.13

SETTLEMENT AGREEMENT
THIS AGREEMENT (as it may be amended or modified from time to time, this " Settlement Agreement ") is made and entered into as of July 12, 2016, by and among: (a) Alpha Natural Resources, Inc. (" ANR "), on behalf of itself and its debtor-affiliates (collectively with ANR, the " Debtors " or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the " Reorganized Debtors "); (b) Contura Energy, Inc. (the " Purchaser "); (c) Citicorp North America, Inc. (the " First Lien Agent "); (d) the United States Department of the Interior (the " Department " and, collectively with the Debtors and the Purchaser, the " Parties "), on behalf of (i) the Office of Surface Mining, Reclamation and Enforcement (" OSMRE "), including in its capacity as the regulatory authority over surface mining operations in the State of Tennessee (" Tennessee "), (ii) the Office of Natural Resources Revenue (" ONRR ") and (iii) the Bureau of Land Management (" BLM ").
WHEREAS , on August 3, 2015, the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the " Bankruptcy Code ") in the United States Bankruptcy Court for the Eastern District of Virginia (the " Bankruptcy Court "), which cases are being jointly administered under case number 15‑33896 (KRH) (collectively, the " Chapter 11 Cases ");
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the " Plan "), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Debtors are parties to a transaction (the " Sale Transaction ") pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith) with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date (as defined in the Plan) providing for (a) the sale of certain of the Debtors' assets (collectively, the " Purchased Assets ") to the Purchaser, (b) the assumption of certain of the Debtors' liabilities by the Purchaser, (c) the transfer to the Purchaser of certain permits (collectively, the " Transferred Permits ") and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , all of the Debtors' coal mining assets in the State of Wyoming (" Wyoming ") and certain of the Debtors' coal mining assets in the State of West Virginia (" West Virginia ") are among the Purchased Assets;
WHEREAS, the Debtors previously relied upon self-bonds as the means to provide financial assurance of environmental reclamation obligations with respect to certain of the Purchased Assets in Wyoming and West Virginia (collectively, the " Former Self-Bonds ");
WHEREAS , certain of the Debtors have entered into certain leases and other agreements with BLM with respect to certain of the Debtors' operations in Wyoming as well as a right of way grant in Utah (collectively, the " Wyoming Agreements ");


    


WHEREAS, for the avoidance of doubt, the Wyoming Agreements include, without limitation, (a) the following agreements related to certain land in Campbell County, Wyoming, (i) that certain Contract for Sale of Mineral Materials WYW 168367, executed on June 15, 2012 by and between BLM and Debtor Alpha Coal West, Inc. (" Alpha Coal West ") and (ii) that certain Contract for Sale of Mineral Materials WYW-168488, dated August 12, 2015 by and between BLM and Alpha Coal West; (b) the mineral and grazing leases identified as federal lease numbers WYW124783, WYW78631, WYW155132, WYW161248, WYO313773, WYW78629, WYW80954, WYW0317682 and WYW4907344; and (c) a right of way grant in Carbon County, Utah, identified as UTU-74345;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors' coal mining assets that are not sold pursuant to the Sale Transaction (collectively, the " Retained Assets ");
WHEREAS , OSMRE has issued certain permits to the Debtors (collectively, the " Tennessee Permits ") in connection with the Debtors' operation and reclamation of their Tennessee Consolidated Coal mining complex (the " TCC Complex ") in Tennessee;
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying the Tennessee Permits;
WHEREAS , all of the Debtors' coal mining assets in Tennessee are among the Retained Assets, and none of the Tennessee Permits are Transferred Permits;
WHEREAS , the primary purpose of the Reorganized Debtors will be to hold and satisfy their obligations under the permits associated with the Retained Assets, including the Tennessee Permits, that have mining operations: (a) with only reclamation activities to be completed (collectively, the " Reclaim-Only Sites "), and to manage the reclamation activities at the Reclaim-Only Sites (including long-term water treatment) until completion; and (b) where coal currently is being mined and is expected to be mined in the future (collectively, the " Active Sites " and, together with the Reclaim‑Only Sites, the " Mining Sites "), to complete all reclamation requirements of the permits associated with the Retained Assets and to manage and/or operate the Active Sites;
WHEREAS , the TCC Complex is a Reclaim-Only Site;
WHEREAS , contemporaneously herewith: (a) the Debtors, the Purchaser and the appropriate regulatory authorities (collectively, the " Regulatory Authorities ") of each of the States of Illinois, Tennessee (as administered by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia (collectively, the " States ") have entered into that certain Reclamation Funding Agreement (the " Reclamation Funding Agreement "); (b) the Debtors and the Purchaser have entered into separate settlement agreements with each of the Regulatory Authorities regarding the Reorganized Debtors' reclamation obligations in the applicable State (collectively, the " Reclamation Settlement Agreements "); and (c) the Debtors, the Purchaser and the First Lien Agent have entered into that certain Stipulation Regarding Water

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Treatment Obligations (the " EPA Stipulation ") with the United States Environmental Protection Agency;
WHEREAS , pursuant to the EPA Stipulation, the Reorganized Debtors are required to establish a Water Treatment Restricted Cash Account (as defined in the EPA Stipulation) with respect to each of the States, including Tennessee, to receive such State's share of certain contributions by the First Lien Lenders and the Reorganized Debtors provided for under the EPA Stipulation to support the Reorganized Debtors' compliance with their water treatment obligations under applicable law (the " Water Treatment Contributions ");
WHEREAS , the Parties desire to enter into this Settlement Agreement to provide for (a) the treatment of the Former Self‑Bonded Obligations for the Purchased Assets, (b) the terms of the Purchaser's assumption of the Wyoming Leases and (c) the terms and framework for accomplishing mine land reclamation, associated environmental restoration and water treatment and funding for long term water treatment in Tennessee in accordance with the Mining Laws at the TCC Complex operated under Tennessee Permits previously issued to ANR and its subsidiaries;
WHEREAS , the terms of this Settlement Agreement are incorporated into the Plan, and the Parties intend that this Settlement Agreement shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan. In addition to the terms defined elsewhere in this Settlement Agreement, the terms below have the following meanings herein:
(a)      " Affiliate " means "affiliate," as such term is defined in section 101(2) of the Bankruptcy Code.
(b)      " ANR, Inc. " means the direct or indirect parent of all of the Reorganized Debtors created as part of the Restructuring Transactions.
(c)      " Applicant/Violator System " means the nationwide database maintained by OSMRE of mine applicants, permittees, operators, application and permit records, as well as unabated or uncorrected environmental violations pursuant to the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. (" SMCRA "), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the " Mining Laws ").
(d)      " Effective Date " means the date upon which the Plan shall become effective in accordance with its terms.
(e)      " Event of Default " has the meaning ascribed to it in Section 12(a) hereof.

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(f)      " Financial Assurance " means a Surety Bond or collateral bond for the Tennessee Permits, as provided for by 30 CFR §§ 800.20 and 800.21 and which is approved in writing by OSMRE.
(g)      " First Lien Lenders " has the meaning given such term in the Plan.
(h)      " Free Cash Flow " means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors' net working capital, minus capital expenditures, measured for any Quarterly Period.
(i)      " First Lien Lender Plan Settlements Contribution " means the $8.0 million initial distribution into the Restricted Cash Reclamation Accounts and the following new additional contributions to be made on the Effective Date by the Reorganized Debtors from the First Lien Lenders' collateral (which otherwise would have been part of the First Lien Distribution): (i) $0.5 million into the Restricted Cash Reclamation Account for the Tennessee subaccount; (ii) $4.5 million into a mitigation account controlled by the Army Corps of Engineers; (iii) $5 million to be used for water treatment pursuant to a settlement with the Environmental Protection Agency; and (iv) $2 million to be used for long term water treatment in Tennessee pursuant to this Settlement Agreement.
(j)      " Fully Reclaim ," " Fully Reclaimed " or " Full Reclamation " means, as to any or all of the Tennessee Permits, completion of reclamation as provided for under applicable Mining Laws.
(k)      " Material Asset Sale " means a sale, in any single or related transaction, of Reorganized ANR assets, other than sales of coal in the ordinary course of business, generating $100,000 or more in net cash proceeds.
(l)      " Quarterly Period " means a full calendar‑year quarter ending each March 31, June 30, September 30 and December 31; provided , however , that the first Quarterly Period after the Effective Date shall be deemed to run from the Effective Date through September 30.
(m)      " Restricted Cash Reclamation Account " means an interest bearing segregated deposit account that may hold government-issued bonds backed by the full faith and credit of the United States of America and/or the State of Tennessee.
(n)      " Retained Bonds " means any reclamation bonds associated with the Tennessee Permits, as existing on the date hereof.
(o)      " Surety Bond " means a corporate surety bond issued for the Tennessee Permits in accordance with 30 CFR §§ 800.5(a) and 800.20 and which is approved in writing by OSMRE.

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(p)      " Third Party Beneficiaries " means the First Lien Lenders, their officers, directors, employees and advisors, and each of their Affiliates, successors and assigns.
2. Assumption and Assignment of the Wyoming Agreements.
(a)      The Debtors will, as of the Effective Date, assume and assign to Purchaser or its designated subsidiaries, pursuant to section 365 of the Bankruptcy Code, all Wyoming Agreements, and upon receiving completed applications for assignment that meet the BLM regulatory criteria, BLM will approve and consent to the assumption and assignment of all Wyoming Agreements in their entirety, including, without limitation, any audit rights the United States may have thereunder and any other rights or claims the United States may have arising from such audit rights.
(b)      The Debtors, BLM and ONRR agree that the cure amount due with respect to the Wyoming Agreements is $4,109,505.99 as of July 7, 2016, plus per diem interest of $111.29 until paid, and the Debtors shall pay such agreed-upon cure amount to ONRR through the Department of Justice on the Effective Date.
(c)      The Debtors and BLM will otherwise work together in good faith to obtain prompt review of and, subject to BLM regulatory approval, the assumption and assignment to the Purchaser of the Wyoming Agreements by the Effective Date.
(d)      Following assumption and assignment of the Wyoming Leases to the Purchaser or its designated subsidiaries, ONRR will retain the right to audit and/or perform any compliance review and, if appropriate, collect from Purchaser or its designated subsidiaries or assignees, as applicable, any additional monies owed by the Debtors or the Reorganized Debtors prior to the assumption or assignment of the Wyoming Leases without those rights being adversely affected by the Chapter 11 Cases. The audit and/or compliance review period shall remain open for the full statute of limitations period established by federal law.
3. Provisions Regarding the Purchaser's Environmental Obligations.
(a)      The Purchaser shall replace the Former Self Bonds for the Purchased Assets with bonding in a form complying with the requirements of W. Va. Code § 22‑3‑11, but in no case shall such replacement be submitted pursuant to W. Va. Code St. R. § 38-2-11.3.d, and Wyo. Stat. § 35-11-417, but in no case shall such replacement be submitted pursuant to 020-040-11 Wyo. Code R. § 3(b). The amount of the replacement bonds will be determined by the applicable regulatory agency of Wyoming and West Virginia by no later than the date that the applicable Transferred Permits are transferred to the Purchaser. OSMRE and all other parties reserve all rights under applicable law with respect to whether the replacement bonding meets legal requirements.
(b)      The Purchaser will submit applications and take all other steps reasonably necessary to obtain required federal permits and licenses (including, without limitation, Nuclear Regulatory Commission, Bureau of Alcohol, Tobacco and Firearms and Federal

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Communications Commission licenses) by the Effective Date and will operate the mines in accordance with applicable law pending the applicable agencies' approval of the transfer or issuance of such permits and licenses.
4. Removal of Coal Incidental to Reclamation in Tennessee. Subject to the issuance of further orders of OSMRE, the Department agrees that the Reorganized Debtors may remove coal incidental to their reclamation activities at the TCC Complex.
5. Continuation of Existing Bonds in Tennessee. All Retained Bonds shall remain in place or shall be replaced with Surety Bonds or other Financial Assurance reasonably acceptable to OSMRE of an identical amount.
6. Establishment and Funding of the Restricted Cash Reclamation Account for Tennessee.
(a)      On or prior to the Effective Date, the Debtors or the Reorganized Debtors shall establish the Restricted Cash Reclamation Account in accordance with the terms of this Settlement Agreement.
(b)      The Reorganized Debtors shall fund the Restricted Cash Reclamation Account as follows:
(i)      The Reorganized Debtors shall deposit all funds required to be paid in accordance with the Reclamation Funding Agreement.
(ii)      Except as may otherwise be agreed to by OSMRE and the Reorganized Debtors, the Reorganized Debtors shall deposit into the Restricted Cash Reclamation Account or the Reclamation Trust, as applicable, 50% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in Tennessee.
(iii)      Any collateral returned to or received by the Reorganized Debtors by, from or with respect to any issuer of any Surety Bond(s) issued in Tennessee shall be deposited in the Restricted Cash Reclamation Account or the Reclamation Trust, as applicable.
(c)      In addition to the amounts to be contributed by the Reorganized Debtors pursuant to Section 6(b) hereof, the First Lien Lenders have consented to an additional $500,000 of their collateral (which would otherwise have been distributed to the First Lien Lenders) being paid by the Reorganized Debtors into the Restricted Cash Reclamation Account on the Effective Date.
(d)      Establishment of the Reclamation Trust .
(i)      Following the Effective Date, the Reorganized Debtors shall work in good faith with OSMRE to establish a reclamation trust pursuant to 30 CFR § 942.800 within ninety days from the Effective Date (the " Reclamation Trust ") to

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fund the performance of the Reorganized Debtors' reclamation obligations in Tennessee. The trust document establishing the Reclamation Trust shall include, at a minimum, the process by which the funds contributed to the Reclamation Trust will be disbursed to fund the activities in the approved Reclamation Schedule, as it may be amended from time to time, and the terms under which the trust can be dissolved and the funds distributed to Reorganized Debtors if all reclamation is complete or another party assumes responsibility for such reclamation. The Reclamation Trust may only be used to reimburse the Reorganized Debtors, or other appropriate contractor, its actual costs incurred in conducting activities in the approved Reclamation Schedule, as it may be amended from time to time.
(ii)      Once the Reclamation Trust has been established, all amounts in, and payable to, Tennessee's Restricted Cash Reclamation Account shall be contributed to the Reclamation Trust.
(e)      All funds deposited into the Restricted Cash Reclamation Account and the Reclamation Trust may be used solely to fund reclamation, mitigation and water treatment and management obligations in Tennessee in accordance with the terms of this Settlement Agreement and shall not be used to assist or subsidize the Purchaser's compliance.

(f)      OSMRE shall have the right to audit the Restricted Cash Reclamation Account and the Reclamation Trust at any time and from time to time, in each case upon reasonable notice to the Reorganized Debtors.
7. Tennessee Reclamation Compliance .
(a)      Obligation to Complete Reclamation .
(i)      The Reorganized Debtors hereby acknowledge their obligations to Fully Reclaim the TCC Complex in accordance with the Tennessee Permits and all applicable state and federal laws, including the full funding of the Reorganized Debtors long-term water treatment obligations, without any limitation relating to the amounts included in or required to be deposited or paid into the Reclamation Trust the amount of any of the Surety Bonds or other Financial Assurance issued pursuant to or in accordance with this Settlement Agreement.
(ii)      Reclamation of the TCC Complex shall be complete or current by the tenth anniversary of the Effective Date.
(b)      Reclamation Schedule .
(i)      Prior to the Effective Date, the Reorganized Debtors shall submit a proposed schedule to OSMRE (the " Reclamation Schedule ") based upon the

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Reorganized Debtors' projected ability to fund reclamation through available sources, including asset sales at the TCC Complex.
(ii)      Within 30 days after the Effective Date, OSMRE shall terminate the temporary cessation status at the TCC Complex, subject to the terms of the agreed Reclamation Schedule for the Tennessee Permits.
(c)      Use of Funds in Restricted Cash Reclamation Account and Reclamation Trust .
(i)      Subject to the terms and provisions of this Settlement Agreement and unless and until OSMRE delivers a notice pursuant to Section 13(c)(ii) hereof, the Reorganized Debtors may use the funds contributed to the Restricted Cash Reclamation Account or be reimbursed from the Reclamation Trust in the performance of their obligations to complete reclamation, mitigation (to the extent required under Tennessee Permits issued by OSMRE) and water treatment and management only within Tennessee and only in accordance with the Tennessee Permits and the Reclamation Schedule; provided , however , that the Reorganized Debtors may use funds in the Restricted Cash Reclamation Account or the be reimbursed from the Reclamation Trust for mitigation under section 404 of the Clean Water Act only if agreed to by OSMRE.
(ii)      Upon OSMRE's delivery of a notice pursuant to Section 13(c)(ii) hereof, the Reorganized Debtors' right to use the Restricted Cash Reclamation Account or be reimbursed from the Reclamation Trust shall immediately cease without further action on the part of OSMRE. Upon written confirmation from OSMRE confirming the Full Reclamation of the Tennessee Permits and the release of the associated bonds, any remaining funds in the Reclamation Trust shall be delivered to the Reorganized Debtors.
(d)      Budgeting and Accounting for Reclamation and Water Treatment .
(i)      Within 45 days after the Effective Date, the Reorganized Debtors shall provide to OSMRE an initial budget, subject to approval by OSMRE, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Reclamation Trust during the period from the Effective Date through December 31, 2016.
(ii)      Within 120 days after the Effective Date, the Reorganized Debtors shall provide to OSMRE an initial budget, based on the Reclamation Schedule, reflecting the Reorganized Debtors' reasonable best efforts to project estimated expenditures from the Reclamation Trust on account of reclamation, mitigation, water treatment and management expenses at the TCC Complex through December 31, 2018 (the " Short‑Term Budget ").

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(iii)      On or before December 1, 2016, the Reorganized Debtors shall provide to OSMRE a budget (the " Semi-Annual Budget "), subject to approval by OSMRE, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Reclamation Trust during the period from January 1, 2017 through June 30, 2017. The Reorganized Debtors shall revise and update the Semi-Annual Budget for each ensuing six‑month period by no later than 30 days prior to the conclusion of the current period (or on such schedule as may otherwise be agreed upon by the Reorganized Debtors and OSMRE). OSMRE shall have 30 days to approve or disapprove each Semi‑Annual Budget from the date of its receipt by OSMRE. In the event OSMRE does not approve or disapprove any Semi‑Annual Budget within such 30-day period, the Semi‑Annual Budget shall be deemed approved, and the Reorganized Debtors shall be reimbursed from funds in the Reclamation Trust with respect to any expenditures during such 30‑day period that are made in accordance with such Semi‑Annual Budget.
(iv)      The Reorganized Debtors shall provide to OSMRE accountings of its Free Cash Flow and actual‑to‑budgeted expenditures from the Restricted Reclamation Cash Account and reimbursements from the Reclamation Trust within 30 days after the end of each Quarterly Period. Such accountings shall be certified as to their accuracy by a senior officer of the Reorganized Debtors.
(v)      The Reorganized Debtors shall meet with OSMRE on a quarterly basis: (1) to review reclamation progress, the Short-Term Budget and the current Semi‑Annual Budget; (2) to provide updates on reclamation spending from the Restricted Cash Account or the Reclamation Trust; and (3) to discuss other matters relevant to its obligations to fund such account.
8. Other Provisions on Bonding and Reclamation in Tennessee .
(a)      Other Permit Revisions, Modifications and Amendments . The Reorganized Debtors may submit applications for revisions, modifications or amendments to the Tennessee Permits as the Reorganized Debtors may determine to be desirable or necessary to amend the terms and conditions of any Tennessee Permit or to facilitate bond reduction, bond release and/or efficient and cost effective completion of reclamation. Any applications for revision, modification or amendment of the Tennessee Permits will be advertised in accordance with applicable regulatory requirements and otherwise comply with applicable regulatory requirements. The Reorganized Debtors and OSMRE agree to respond to comments received on any such application on a timely basis. The Reorganized Debtors and OSMRE agree to cooperate and work in good faith with each other such that such Tennessee Permit revisions, modifications or amendments are processed in a timely manner to facilitate the completion of reclamation in a manner consistent with the Reclamation Schedule and applicable state and federal law. OSMRE retains all discretion with respect to any permit-related requests in accordance with applicable law.

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(b)      Access to Rejected Leasehold Properties .
(i)      Consistent with the order authorizing, among other things, the rejection of certain unexpired leases (Docket No. 2239) (the " Rejection Order ") and any similar order, the Debtors and the Reorganized Debtors shall work with the lessors under rejected leases to obtain access to the applicable sites to complete reclamation (any such site, a " Rejected Lease Site ").
(ii)      If the Debtors or the Reorganized Debtors are unable to obtain access to any Rejected Lease Site to complete reclamation, the Reorganized Debtors and OSMRE shall work cooperatively and in good faith to address and remedy the access issue and to develop a mechanism to ensure such access.
(iii)      The failure to obtain access shall not excuse the Debtors or the Reorganized Debtors from complying with their reclamation obligations under applicable law. The Debtors shall include language in the Confirmation Order clarifying that paragraph 8 of the Rejection Order and any other similar order does not apply to OSMRE or interfere in any way with OSMRE's enforcement of the surface mining laws against the Debtors, the Reorganized Debtors or any other parties and incorporating any other provisions agreed upon by the Debtors and the Reorganized Debtors.

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(c)      Consent Orders . The Reorganized Debtors and OSMRE shall negotiate in good faith such consent orders as OSMRE shall deem necessary or appropriate to embody the terms of the Reclamation Schedule.
9. Tennessee's Water Treatment Restricted Cash Account.
(a)      Additional First Lien Lender Contribution . In addition to Tennessee's share of the Water Treatment Contributions, as provided for under the EPA Stipulation, the Reorganized Debtors, with the consent of the First Lien Lenders, shall pay from the First Lien Lenders' collateral the additional amount of $2,000,000 (which otherwise would have been part of the First Lien Lender Distribution) into Tennessee's Water Treatment Restricted Cash Account on the Effective Date. This funding shall be used for establishment of a Water Treatment Trust as provided below and may not be used for any other purpose other than water treatment.
(b)      Additional Reorganized Debtor Asset Sale Contribution . In addition to the amounts payable into the Restricted Cash Reclamation Account pursuant to Section 6(b), hereof, except as may otherwise be agreed to by OSMRE and the Reorganized Debtors, the Reorganized Debtors shall deposit into Tennessee's Water Treatment Restricted Cash Account 25% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in Tennessee.
(c)      Establishment of the Water Treatment Trust .
(i)      Following the Effective Date, the Reorganized Debtors shall work in good faith with OSMRE to establish a water treatment trust pursuant to 30 CFR § 942.800 within ninety days from the Effective Date (the " Water Treatment Trust ") to fund the performance of the Reorganized Debtors' water treatment obligations in Tennessee. The trust document establishing the Water Treatment Trust shall include, at a minimum, the amount at which it will be fully funded to cover the long-term water treatment expenses and the terms under which the trust can be dissolved and the funds distributed to Reorganized Debtors if long term water treatment is no longer needed or another party assumes responsibility for such treatment. OSMRE and the Reorganized Debtors shall engage in good faith discussions regarding when and to what extent funds in the Water Treatment Trust can be used prior to the Water Treatment Trust being fully funded. The Water Treatment Trust may only be used to reimburse the Reorganized Debtors, or other appropriate contractor, its actual annual water treatment costs or the calculated annual water treatment cost, whichever is less.
(ii)      Once the Water Treatment Trust has been established, all amounts in, and payable to, Tennessee's Water Treatment Restricted Cash Account shall be contributed to the Water Treatment Trust until the Water Treatment Trust is fully funded in accordance with its terms.

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(iii)      Once the Water Treatment Trust is fully funded, all subsequent Water Treatment Contributions shall be allocated equally among the Water Treatment Restricted Cash Accounts of the other States, and no further Water Treatment Contributions shall be paid into the Water Treatment Trust or Tennessee's Water Treatment Restricted Cash Account.
10. Limitations on Certain Transactions by the Purchaser. The Purchaser agrees that, for five years after the Effective Date, it will not sell all or substantially all of its assets unless either:
(a)      the purchaser(s) of such assets agree(s) to assume the liabilities of the Purchaser under the Funding Agreement; or
(b)      such liabilities are otherwise satisfied or funded.
11. Limitations on Certain Reorganized Debtor Transactions in Tennessee .
(a)      Asset Sales . With respect to all Material Asset Sales of assets involving mining assets located in Tennessee or Tennessee Permits, the Reorganized Debtors shall provide reasonable notice of, and consult with OSMRE regarding, the proposed Material Asset Sale.
(b)      No Dividends . Until the Reorganized Debtors have fulfilled their obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with this Settlement Agreement, they shall not make any dividends or other distributions on account of any equity interests in the Reorganized Debtors ; provided , however , that nothing herein shall prohibit (i) the Reorganized Debtors from making payments or otherwise satisfying their obligations pursuant to the Plan with respect to the Reorganized ANR Contingent Revenue Payment or (ii) any Reorganized Debtor or successor thereto from making any dividend or other distribution for cash management purposes to its immediate parent entity so long as such immediate parent entity is itself a Reorganized Debtor, or ANR, Inc. or the successor entity to any of the foregoing.
(c)      For the avoidance of doubt, nothing in Section 11(a) hereof shall: (i) limit or interfere with OSMRE's exercise of discretion with respect to any required regulatory approval; (ii) alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation of all of its or their respective permitted sites in accordance with the Reclamation Schedule, applicable consent decrees and this Settlement Agreement; or (iii) apply to the Sale Transaction.
12. Releases .
(a)      OSMRE agrees that, as of the Effective Date:

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(i)      OSMRE shall and does hereby release the Debtors' directors, officers and employees from any civil claims, causes of action or violations under SMCRA relating to the Debtors’ assets or operations and arising prior to the Effective Date, provided , however , that nothing in the foregoing shall release or affect the liability of any director, officer or employee of the Reorganized Debtors for any claims or violations with respect to either (1) the Retained Assets arising after the Effective Date, whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date; or (2) any Purchased Assets subject to a Transferred Permit (" Transferred Assets ") prior to the completion of the transfer of such permit to the Purchaser (a " Permit Transfer "), provided that such liability shall terminate upon Permit Transfer pursuant to Section 12(a)(iv) below. OSMRE shall not link the Debtors' directors, officers or employees to the Applicant/Violator System for any claims, violations or conditions arising prior to the Effective Date (or with respect to Transferred Properties, prior to the Permit Transfer) if those entities are not previously included in the Applicant/Violator System as owners or controllers as defined by 30 CFR 701.5. The Parties agree that nothing in the foregoing shall prevent any of the Reorganized Debtors' directors, officers, employees and other owners and controllers of the Reorganized Debtors from being linked in the Applicant/Violator System on account of (1) any claims or violations with respect to Retained Assets after the Effective Date (whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date); or (2) with respect to Transferred Assets, any claims or violations that occur before Permit Transfer; provided , however , that OSMRE shall take no action against any of the foregoing parties based solely on a failure to undertake reclamation obligations in a timely manner, where such reclamation obligations are being performed and satisfied in accordance with the terms of applicable consent decrees or the Reclamation Settlement Agreements.
(ii)      upon the payment of the First Lien Lender Plan Settlements Contribution, OSMRE shall and does hereby release the First Lien Lenders, the First Lien Agent, the DIP Lenders, the DIP Agent, any affiliate of any of the foregoing and their respective directors, officers and employees from any civil claims, causes of action or violations under SMCRA relating to the Debtors’ assets or operations and arising prior to the Effective Date in each case except for liability arising from the fact that any or all of such entities or people after the Effective Date are directors, officers and employees of the Reorganized Debtors, or otherwise operate or own or control the Retained Assets or the Reorganized Debtors after the Effective Date.
(iii)      upon the payment of the First Lien Lender Plan Settlements Contribution, OSMRE shall and does hereby release the Purchaser, all of its subsidiaries, any affiliate of any of the foregoing (including any entity that is or becomes an affiliate of the Purchaser as a result of the Sale Transaction) and their respective directors, officers and employees from any civil claims, causes of

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action or violations under SMCRA with respect to the Retained Assets and (to the extent arising prior to the Effective Date) the Purchased Assets, in each case except for liability arising from the fact that any or all of such entities or people after the Effective Date are directors, officers and employees of the Reorganized Debtors, or otherwise operate or own or control the Retained Assets, the Purchased Assets, or the Reorganized Debtors after the Effective Date (whether or not such liability is based in whole or in part on acts or omissions prior to the Effective Date). For avoidance of doubt, none of: (1) the relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction; (2) the funding obligations of the Purchaser arising under the Reclamation Funding Agreement; or (3) the consummation of the Sale Transaction shall be construed to classify or give any right to the OSMRE to classify or treat the Purchaser or its subsidiaries or their respective shareholders, directors, officers or employees as owners or controllers of the Reorganized Debtors.
(iv)      OSMRE shall and does hereby release the Reorganized Debtors and their respective directors, officers and employees for any civil claims, causes of action or violations under SMCRA with respect to the Purchased Assets, whether arising prior to or after the Permit Transfer, except to the extent that the Reorganized Debtors' directors, officers and employees are also employed by, or otherwise the owner, lessee, permittee, controller, or operator of the Purchased Assets or the Purchaser after the Effective Date. For avoidance of doubt, none of: (1) the relationships between the Reorganized Debtors and the Purchaser based on the post‑Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction, and including the Reorganized Debtors' retention of any Transferred Permits pending the Permit Transfer; (2) the funding obligations of the Purchaser arising under the Reclamation Funding Agreement; and (3) the consummation of the Sale Transaction, shall be construed to classify or give any right to OSMRE to classify or treat the Reorganized Debtors or their respective shareholders, directors, officers or employees as an owner or controller of the Purchaser.
(b)      The language attached hereto as Annex A shall be incorporated into the Plan and the order confirming the Plan (the " Confirmation Order ").

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13. Events of Default .
(a)      Each of the following shall constitute an Event of Default under this Settlement Agreement with respect to the Reorganized Debtors' reclamation obligations in Tennessee:
(i)      The failure of the Purchaser to timely make any payment in accordance with the Reclamation Funding Agreement;
(ii)      The failure of the Reorganized Debtors to timely contribute any amounts required to be contributed to the Restricted Cash Reclamation Account or the Reclamation Trust in accordance with the Reclamation Funding Agreement or this Settlement Agreement;
(iii)      The failure of the Reorganized Debtors to timely comply with their obligations in accordance with the Reclamation Schedule or any consent order with OSMRE; and
(iv)      The Reorganized Debtors file a voluntary petition for relief under the Bankruptcy Code, or an involuntary petition is filed against the Reorganized Debtors that is not dismissed within 60 days.
(b)      If an Event of Default occurs, OSMRE may provide notice to the Reorganized Debtors and the Purchaser of such Event of Default (the " Notice of Default "). The Reorganized Debtors and the Purchaser shall have until the date that is 30 days from the date of their receipt of the Notice of Default (the " Cure Deadline ") to cure any Event of Default arising pursuant to Section 13(a)(i-iii) hereof.
(c)      Upon the occurrence of an Event of Default and, with respect to any Event of Default arising pursuant to Section 13(a)(i-iii) hereof, its continuation until after the Cure Deadline, OSMRE may:
(i)      terminate this Settlement Agreement;
(ii)      deliver a notice of termination of the right to use cash in the Restricted Cash Reclamation Account, Reclamation Trust, the Water Treatment Restricted Cash Account or Water Treatment Trust, as applicable;
(iii)      revoke any or all of the Reorganized Debtors' permits in Tennessee, including the Tennessee Permits and forfeit the amount of any bonds therefore; and/or
(iv)      take any other regulatory or enforcement action permitted by law.
(d)      OSMRE shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not

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constitute a waiver on the part of OSMRE of any right to take any action upon the occurrence of any Event of Default.
(e)      The termination of this Settlement Agreement shall have no effect on the obligations of the Reorganized Debtors hereunder, the obligations of the Reorganized Debtors or the Purchaser under the Reclamation Funding Agreement, the obligations of the Reorganized Debtors to Fully Reclaim the TCC Complex in accordance with the Tennessee Permits and all applicable state and federal laws and otherwise comply with applicable state and federal laws, or any of the releases granted under this Settlement Agreement.
(f)      Except as expressly provided in (i) paragraph 12 relating to interim ownership or operation of mines to be transferred to Purchaser and (ii) paragraph 16(c), nothing in this Settlement Agreement shall be deemed or construed to limit or otherwise affect the authority or ability of OSMRE to issue notices of violations or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against the Reorganized Debtors in respect of any permits or mining sites in Tennessee or any other mines owned or operated by the Reorganized Debtors after the Effective Date, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g)      An Event of Default by the Reorganized Debtors of the type described in Section 13(a)(ii)-(iv) hereof shall not be construed to require the Purchaser to cure such default or otherwise make the Purchaser liable for such default. Similarly, an Event of Default by the Purchaser of the type described in Section 13(a)(i) hereof shall not be construed to require the Reorganized Debtors to cure such default or otherwise make the Reorganized Debtors liable for such default.
14. Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Settlement Agreement:
(a)      This Settlement Agreement shall have been approved by the Bankruptcy Court;
(b)      The Plan, as it may be amended consistent with the terms of this Settlement Agreement, shall be confirmed on or before July 15, 2016;
(c)      The Effective Date shall occur on or before July 31, 2016;
15. Settlement Agreement and the Plan . In the event of a conflict between the terms of this Settlement Agreement and the Plan or Confirmation Order with respect to the terms hereof, this Settlement Agreement shall control.

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16. Covenants, Cooperation and Good Faith Efforts.
(a)      Reclamation Schedule and Budgets . The Parties agree to cooperate and work in good faith with each other with respect to the Reclamation Schedule and the Tennessee Permits and to develop the Short-Term Budget and the Semi‑Annual Budgets for the Tennessee Permits such that reclamation work is sequenced and otherwise conducted in a manner that (a) protects the public health and safety, (b) complies with state and federal law and (c) properly manages the available financial resources to help ensure the cost‑effective and timely completion of Full Reclamation and the release of all bonds associated with the Tennessee Permits.
(b)      Use of Resources. The Reorganized Debtors and OSMRE agree to work in good faith with each other to ensure that the reclamation work with respect to the Tennessee Permits is sequenced and otherwise conducted in a manner that maximizes the reclamation work that can be completed with the resources available.
(c)      Timely Reclamation. If the Reorganized Debtors are performing the reclamation obligations under the Tennessee Permits in accordance with their time frames and provisions or the Reclamation Schedule or applicable consent orders, OSMRE shall take no action to forfeit the reclamation bonds relating to the Tennessee Permits or issue any notice of noncompliance or cessation order based solely on a failure to undertake reclamation in a timely manner. OSMRE otherwise reserves all rights to take all enforcement actions consistent with applicable state and federal law.
17. Incidental Permit Transfers and Phased Bond Releases.
(a)      Permit Transfers Incident to Restructuring Transactions. The Plan contemplates that the Debtors will engage in certain Restructuring Transactions including, without limitation, modifications to the corporate form or ultimate parent of certain of the Debtors. To the extent the Restructuring Transactions may, as a technical matter, require transfers of any Tennessee Permits, the Parties agree to cooperate and work in good faith with each other to effectuate such transfers.
(b)      Phased Bond Releases. Upon submittal of appropriate replacement bonds to OSMRE, any corresponding reclamation bonds originally issued to the Debtors with respect to affected Tennessee Permits will be released in accordance with the standard permit procedures under applicable state and federal law. For the avoidance of doubt, nothing herein shall require OSMRE to approve replacement bonding that is not acceptable to OSMRE. OSMRE shall not be required to approve self-bonding under 30 CFR § 800.23 for any of the Tennessee Permits.
18. Third Party Beneficiaries. The Parties acknowledge and agree that nothing in this Settlement Agreement is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein, including the Third Party Beneficiaries).

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19. Successors and Assigns. The provisions of this Settlement Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.
20. Entire Agreement. This Settlement Agreement, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.
21. Governing Law. This Settlement Agreement shall be governed by and construed under the laws of Tennessee without regard for the conflicts of laws provisions thereof except to the extent federal law applies.
22. Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Settlement Agreement and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) such Party's execution and delivery of, and performance under, this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Settlement Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Settlement Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Settlement Agreement; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Settlement Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to DOI, the undersigned represents and warrants that he/she has authority to enter into this Settlement Agreement.
23. No Reliance. Each Party represents and warrants that in entering into this Settlement Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Settlement Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
24. Modification or Amendment. This Settlement Agreement may be modified or amended only by written agreement executed by each of the Parties and, with regards to any provision impacting the First Lien Lenders or the First Lien Agent, the written consent of the First Lien Lenders or the First Lien Agent, as applicable.

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25. Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Settlement Agreement and to consummate the transactions contemplated hereby and thereby.
26. Construction. This Settlement Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Settlement Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Settlement Agreement were negotiated at arms'-length, and this Settlement Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Settlement Agreement and the Plan, the terms of this Settlement Agreement shall govern.
27. Headings. Titles and headings in this Settlement Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Settlement Agreement.
28. Execution in Counterpart. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Settlement Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
29. Severability. If any provision of this Settlement Agreement is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(Remainder of Page Intentionally Blank; Signatures to Follow)




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IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.


ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates


/s/ Mark M. Manno
_________________________________
By: Mark M. Manno
Its: EVP, General Counsel, CPO & Secretary
UNITED STATES DEPARTMENT OF THE INTERIOR, ON BEHALF OF: (I) THE OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT, INCLUDING IN ITS CAPACITY AS THE REGULATORY AUTHORITY OVER SURFACE MINING OPERATIONS IN THE STATE OF TENNESSEE; (II) OFFICE OF NATURAL RESOURCES REVENUE; AND (III) THE BUREAU OF LAND MANAGEMENT


/s/ Janice M. Schneider
___________________________________
By: Janice M. Schneider
Its: Assistant Secretary
      Land and Minerals Management


CITICORP NORTH AMERICA, INC.,
AS FIRST LIEN AGENT


/s/ Dale Goncher
__________________________________
By: Dale Goncher
Its: Vice President


CONTURA ENERGY, INC.


/s/ John DeGroote
___________________________________
By: John DeGroote
Its: President and Secretary

 
 
 
 





    
Exhibit 10.14

PERMITTING AND RECLAMATION PLAN SETTLEMENT
AGREEMENT FOR THE COMMONWEALTH OF KENTUCKY
THIS AGREEMENT (as it may be amended or modified from time to time, this “ Settlement Agreement ”) is made and entered into as of July 12, 2016, by and among Alpha Natural Resources, Inc. (“ANR”), on behalf of itself and its debtor-affiliates (collectively with ANR, the “ Debtors ” or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the “ Reorganized Debtors ”), Contura Energy, Inc. (the “ Purchaser ”) and the Kentucky Energy and Environment Cabinet, Department for Natural Resources (the “ Department ” and, collectively with the Debtors and the Purchaser, the “ Parties ”).
WHEREAS , on August 3, 2015 (the “ Petition Date ”), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the “ Chapter 11 Cases ”);
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the “Plan”), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Department has issued certain permits to the Debtors (collectively, the “ Kentucky Permits ”) in connection with the Debtors’ operation and reclamation of certain mines and facilities (collectively, the “ Mining Complexes ”) within the Commonwealth of Kentucky (the “ Commonwealth ”);
WHEREAS , the Debtors are in general compliance with, and are continuing to perform their ongoing reclamation obligations in accordance with, the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. (“SMCRA”), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the “ Mining Laws ”);
WHEREAS , the Debtors are parties to a transaction (the “ Sale Transaction ”) pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith), with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date (as it may be modified, supplemented or amended, the “APA”) providing for (a) the sale of certain of the Debtors’ assets (collectively, the “ Purchased Assets ”) to the Purchaser, (b) the assumption of certain of the Debtors’ liabilities by the Purchaser and (c) the transfer to the Purchaser of certain permits (collectively, the “ Transferred Permits ”) and (d) certain transactions necessary to effectuate the foregoing;


    


WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors’ coal mining assets that are not sold pursuant to the Sale Transaction (collectively, the “ Retained Assets ”);
WHEREAS , all of the Debtors’ coal mining assets in the Commonwealth are Retained Assets, and none of the Kentucky Permits are Transferred Permits;
WHEREAS , the primary purpose of the Reorganized Debtors will be to hold the permits associated with the Retained Assets, including the Kentucky Permits, that have mining operations: (a) with only reclamation activities to be completed (collectively, the “ Reclaim-Only Sites ”), and to manage the reclamation activities at the Reclaim-Only Sites; and (b) where coal currently is being mined and is expected to be mined in the future (collectively, the “ Active Sites ” and, together with the Reclaim-Only Sites, the “ Mining Sites ”), and to manage and/or operate the Active Sites;
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Kentucky Permits and categorizing each of them as an Active Site or a Reclaim-Only Site;
WHEREAS , the Parties desire to enter into this Settlement Agreement to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in the Commonwealth in accordance with the Mining Laws on Mining Complexes operated under Kentucky Permits previously issued to ANR and its subsidiaries;
WHEREAS , the terms of this Settlement Agreement are incorporated into the Plan, and the Parties intend that this Settlement Agreement shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1.      Definitions. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Plan. In addition to the terms defined elsewhere in this Settlement Agreement, the terms below have the following meanings herein:
(a)      “ Affiliate ” means “affiliate,” as such term is defined in section 101(2) of the Bankruptcy Code.
(b)      “ Applicant/Violator System ” means the nationwide database maintained by OSMRE of mine applicants, permittees, operators, application and permit records, as well as unabated or uncorrected environmental violations pursuant to SMCRA or (ii) the analogous database maintained by the Department pursuant to the Kentucky Surface Coal Mining Act.

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(c)      “ Effective Date ” means the date upon which the Plan shall become effective in accordance with its terms.
(d)      “ Event of Default ” has the meaning ascribed to it in Section ‎9(a) hereof.
(e)      “ First Lien Lenders ” has the meaning given such term in the Plan.
(f)      “ Free Cash Flow ” means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors’ net working capital, minus capital expenditures, measured for any Quarterly Period.
(g)      “ Fully Reclaim ,” “ Fully Reclaimed ” or “ Full Reclamation ” means, as to any or all Kentucky Permits, completion of reclamation as provided for under applicable Mining Laws.
(h)      “ Material Asset Sale ” means a sale, in any single or related transaction, of Reorganized ANR assets, other than sales of coal in the ordinary course of business, generating $100,000 or more in net cash proceeds.
(i)      “ OSMRE ” means the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement.
(j)      “ Performance Bond ” means a performance bond issued in accordance with 405 Ky. Admin. Regs. 10:015.
(k)      “ Quarterly Period ” means a full calendar-year quarter ending each March 31, June 30, September 30 and December 31; provided , however , that the first Quarterly Period after the Effective Date shall be deemed to run from the Effective Date through September 30.
(l)      “ Reclamation Agreement ” means, individually and collectively, the Global Reclamation Agreement and any Site Reclamation Agreement, as defined in Section ‎5(b) hereof.
(m)      “ Reclamation Funding Agreement ” means the agreement, substantially in the form attached hereto as Exhibit 2 , by and among the Debtors, for and on behalf of themselves and the Reorganized Debtors, the Purchaser and the appropriate regulatory agencies of each of the States of Illinois, Tennessee (as administered by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia.
(n)      “ Restricted Cash Accounts ” means, collectively, the Restricted Cash Reclamation Account and the Water Treatment Restricted Cash Account.

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(o)      “ Restricted Cash Reclamation Account ” means an interest bearing segregated deposit account in which the Department shall hold a first priority security interest, perfected by “control” under the Kentucky Uniform Commercial Code into which funds are deposited pursuant to Sections ‎2, ‎4 and ‎5 of the Reclamation Funding Agreement. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Restricted Cash Reclamation Account in overnight securities consistent with their cash management policy.
(p)      “ Retained Bonds ” means any reclamation bonds associated with the Kentucky Permits, as existing on the date hereof.
(q)      “ Surety Bond ” means a surety bond issued in accordance with 405 Ky. Admin. Regs. 10:015.
(r)      “ Third Party Beneficiaries ” means the First Lien Lenders, their officers, directors, employees and advisors, and each of their Affiliates, successors and assigns.
(s)      “ Water Treatment Restricted Cash Account ” has the meaning ascribed to it in the Reclamation Funding Agreement and in which the Department shall hold a first priority security interest, perfected by “control” under the Kentucky Uniform Commercial Code. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Water Treatment Restricted Cash Account in overnight securities consistent with their cash management policy.
2.      Operation of Mining Sites. Subject to the issuance of further orders of the Department, the Department agrees that the Reorganized Debtors may continue to mine coal, or commence coal mining operations, as applicable, at the Active Sites in the Commonwealth, subject to the provision of Surety Bonds with respect to each such Active Site.
3.      Provision of Bonding and Other Financial Assurance.
(a)      Continuation of Existing Bonds . All Retained Bonds shall remain in place or shall be replaced with Surety Bonds or other financial assurance reasonably acceptable to the Department of an identical amount.
(b)      Posting of Bonds for Active Sites . The Reorganized Debtors shall post with the Department Surety Bonds or other acceptable form of Performance Bond for all Active Sites in the amount determined in accordance with applicable state law and rules during mid-term reviews or renewals of the Kentucky Permits.
(c)      Bond Adjustments . The Parties understand that the Department will continue mid-term reviews and assessments of the Kentucky Permits that may result in the adjustment of the required bond amounts for the Kentucky Permits and that the Reorganized Debtors’ ability to post additional Performance

4
    


Bonds may be limited from time to time. In such circumstances, the Reorganized Debtors and the Department will negotiate a reasonable schedule for the posting of such additional Performance Bonds.
4.      Establishment and Funding of the Restricted Cash Accounts.
(a)      On or prior to the Effective Date, the Debtors or the Reorganized Debtors shall establish the Restricted Cash Accounts in accordance with the terms of this Settlement Agreement and the Reclamation Funding Agreement and shall execute and deliver to the Department a deposit account control agreement in form and substance reasonably acceptable to the Department with respect to the establishment and use of the Restricted Cash Accounts.
(b)      The Reorganized Debtors shall fund the Restricted Cash Accounts as follows:
(i)      The Reorganized Debtors shall deposit into the Restricted Cash Accounts all funds required to be paid or deposited to the Commonwealth in accordance with the Reclamation Funding Agreement.
(ii)      Except as may otherwise be agreed to by the Department and the Reorganized Debtors, the Reorganized Debtors shall deposit into the Restricted Cash Reclamation Account: (1) 50% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the Commonwealth with respect to which Material Asset Sale the net cash proceeds are $500,000 or more; and (2) 25% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the Commonwealth with respect to which Material Asset Sale the net cash proceeds are at least $100,000 but less than $500,000.
(iii)      Any collateral returned to or received by the Reorganized Debtors by, from or with respect to any issuer of any Surety Bond(s) issued in the Commonwealth shall be deposited in the Restricted Cash Reclamation Account.
(c)      All funds deposited into the Restricted Cash Accounts may be used solely to fund reclamation, mitigation and water treatment and management obligations in the Commonwealth in accordance with the terms of this Settlement Agreement and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement.
(d)      The Department shall have the right to audit the Restricted Cash Accounts at any time and from time to time, in each case upon reasonable notice to the Reorganized Debtors.

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5.      Kentucky Reclamation Compliance.
(a)      Obligation to Complete Reclamation .
(i)      The Reorganized Debtors hereby acknowledge their obligations to Fully Reclaim all of their permitted Mining Sites in accordance with the Kentucky Permits and all applicable state and federal laws, without any limitation relating to the amounts included in or required to be deposited or paid into the Restricted Cash Reclamation Account or the amount of any of the Performance Bonds issued pursuant to or in accordance with this Settlement Agreement.
(ii)      Reclamation of all Reclaim-Only Sites shall be complete or current by the tenth anniversary of the Effective Date.
(b)      Reclamation Agreements .
(i)      Within 90 days after the Effective Date, the Reorganized Debtors and the Department shall enter into a “ Global Reclamation Agreement ” pursuant to which, among other things, the parties thereto shall establish: (1) a schedule of priority for reclamation, mitigation and water treatment and management; and (2) a detailed reclamation and water treatment schedule with respect to all of the Reorganized Debtors’ Reclaim-Only Sites.
(ii)      To the extent necessary or appropriate, the Reorganized Debtors and the Department shall negotiate in good faith and use reasonable best efforts to enter into site-specific reclamation agreements (collectively, the “ Site Reclamation Agreements ”) with respect to any Reclaim-Only Site, subject to the Department’s permit modification procedures, as and to the extent required or appropriate.
(c)      Use of Funds in Restricted Cash Accounts .
(i)      Subject to the terms and provisions of this Settlement Agreement and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement and unless and until the Department delivers a notice pursuant to Section ‎9(c)(ii) hereof, the Reorganized Debtors may use funds contributed to the Restricted Cash Accounts in the performance of their obligations to complete reclamation, mitigation (to the extent required under Kentucky Permits issued by the Department) and water treatment and management only within the Commonwealth and only in accordance with the Kentucky Permits and any applicable Reclamation Agreements; provided , however , that such funds in the Restricted Cash Accounts shall be used first to reclaim, mitigate and treat and manage water at Reclaim-Only Sites until all such

6
    


Mining Sites have been Fully Reclaimed and then at any other Mining Sites; and provided , further , that the Reorganized Debtors may use funds in the Restricted Cash Accounts for mitigation under section 404 of the Clean Water Act only if agreed to by the Department.
(ii)      Upon the Department’s delivery of a notice pursuant to Section ‎9(c)(ii) hereof, the Reorganized Debtors’ right to use funds in the Restricted Cash Accounts shall immediately cease without further action on the part of the Department, the funds then contained in the Restricted Cash Accounts shall be deemed to constitute a cash bond (as provided for under 405 Ky. Admin. Regs. 10:015) with respect to the Reorganized Debtors’ performance of their obligations to reclaim and manage and treat water at their Reclaim-Only Sites, and the Department shall be entitled to execute upon its collateral pledge of any amounts held in or payable into the Restricted Cash Accounts in accordance with Section ‎9(c)(iii) hereof.
(iii)      Upon written confirmation from the Department confirming the Full Reclamation of the Kentucky Permits and the release of the associated bonds, any remaining funds in the Restricted Cash Accounts shall be delivered to the Reorganized Debtors.
(d)      Budgeting and Accounting for Reclamation and Water Treatment .
(i)      Within 45 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from the Effective Date through December 31, 2016.
(ii)      Within 120 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, based on the Global Reclamation Agreement, reflecting the Reorganized Debtors’ reasonable best efforts to project estimated expenditures from the Restricted Cash Accounts on account of reclamation, mitigation and water treatment and management expenses at all Reclaim-Only Sites in the Commonwealth through December 31, 2018 (the “ Long-Term Budget ”).
(iii)      On or before December 1, 2016, the Reorganized Debtors shall provide to the Department a budget (the “ Semi-Annual Budget ”), subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from January 1, 2017 through June 30, 2017. The Reorganized Debtors shall revise and update the Semi-Annual Budget for each ensuing six-month period by no later than 30 days prior to the conclusion of the current period (or on such

7
    


schedule as may otherwise be agreed upon by the Reorganized Debtors and the Department).
(iv)      The Reorganized Debtors shall provide to the Department accountings of its Free Cash Flow and actual-to-budgeted expenditures from the Restricted Cash Accounts within 30 days after the end of each Quarterly Period. Such accountings shall be certified as to their accuracy by a senior officer of the Reorganized Debtors.
(v)      The Reorganized Debtors shall meet with the Department on a quarterly basis: (1) to review reclamation and water treatment progress, the Long-Term Budget and the current Semi-Annual Budget; (2) to provide updates on reclamation and water treatment spending from the Restricted Cash Accounts; and (3) to discuss other matters relevant to their obligations to fund such accounts.
6.      Other Provisions on Bonding and Reclamation .
(a)      Other Permit Revisions, Modifications and Amendments. The Reorganized Debtors may submit applications for revisions, modifications or amendments to the Kentucky Permits as the Reorganized Debtors may determine to be desirable or necessary to amend the terms and conditions of any Kentucky Permit or to facilitate bond reduction, bond release and/or efficient and cost effective completion of reclamation. Any applications for revision, modification or amendment of the Kentucky Permits will be advertised in accordance with applicable regulatory requirements and otherwise comply with applicable regulatory requirements. The Reorganized Debtors and the Department agree to respond to comments received on any such application on a timely basis. The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other such that such Kentucky Permit revisions, modifications or amendments are processed in a timely manner to facilitate the completion of reclamation in a manner consistent with applicable Reclamation Agreements and applicable state and federal law.
(b)      Administrative Fee . The Reorganized Debtors shall pay out of the Restricted Cash Reclamation Account an administrative fee to the Department to provide for the oversight of the budgeting, accounting and settlement implementation activities of the Department in the amount of $30,000 per annum.
(c)      Access to Rejected Leasehold Properties .
(i)      Consistent with the order authorizing, among other things, the rejection of certain unexpired leases (Docket No. 2239) (the “ Rejection Order ”) and any similar order, the Debtors and the Reorganized Debtors shall work with the lessors under rejected leases to obtain access

8
    


to the applicable sites to complete reclamation or perform mitigation or water treatment (any such site, a “ Rejected Lease Site ”).
(ii)      If the Debtors or the Reorganized Debtors are unable to obtain access to any Rejected Lease Site to complete reclamation or perform mitigation or water treatment, the Reorganized Debtors and the Department shall work cooperatively and in good faith to address and remedy the access issue and to develop a mechanism to ensure such access.
(iii)      The failure to obtain access shall not excuse the Debtors or the Reorganized Debtors from complying with their reclamation, mitigation and water treatment obligations under applicable law. The Debtors shall include language in the order confirming the Plan (the “ Confirmation Order ”) clarifying that paragraph 8 of the Rejection Order and any other similar order does not apply to the Department or interfere in any way with the Department’s enforcement of the Mining Laws against the Debtors, the Reorganized Debtors or any other parties and incorporating any other provisions agreed upon by the Department, the Debtors and the Reorganized Debtors.
(d)      Consent Orders . The Reorganized Debtors and the Department shall negotiate in good faith such consent orders as the Department shall deem necessary or appropriate to embody the terms of the Reclamation Agreements and this Settlement Agreement.
7.      Limitations on Certain Transactions.
(a)      Asset Sales . With respect to all Material Asset Sales of assets involving mining assets located in the Commonwealth or Kentucky Permits, the Reorganized Debtors shall provide reasonable notice of, and consult with the Department regarding, the proposed Material Asset Sale.
(b)      No Dividends . Until the Reorganized Debtors have fulfilled their obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with this Settlement Agreement, ANR, Inc., Alpha Natural Resource Holdings, Inc., and any other issuer of equity interests distributed to creditors under the Plan, other than the Purchaser or any of its subsidiaries, shall not make any distributions on account of any of their equity interests; provided , however , that nothing herein shall prohibit the Reorganized Debtors from making payments or otherwise satisfying their obligations pursuant to the Plan with respect to the Reorganized ANR Contingent Revenue Payment.
(c)      For the avoidance of doubt, nothing in Section ‎7(a) hereof shall: (i) limit or interfere with the Department’s exercise of discretion with respect to any required regulatory approval; (i) alter or affect the obligations of the Reorganized

9
    


Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation of all of its or their respective permitted sites in accordance with applicable Reclamation Agreements, consent decrees and this Settlement Agreement; or (i) apply to the Sale Transaction.
8.      Releases.
(a)      The Department agrees that, as of the Effective Date:
(i)      (1) The Department shall and does hereby release the Debtors’ shareholders, directors, officers, employees and agents from any claims, violations or conditions arising prior to the Effective Date; and (2) the Department shall not link any of the Debtors’ shareholders, directors, officers, employees or agents to the Applicant/Violator System for any claims, violations or conditions arising prior to the Effective Date. The Parties agree that nothing in the foregoing shall (1) release or affect the liability of any of the Reorganized Debtors or their shareholders, directors, officers, employees, agents or other owners or controllers (as such term is defined in 405 Ky. Admin. Regs. 8:001) for any claims or violations with respect to the Retained Assets and the Kentucky Permits first arising after the Effective Date (whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date) (a “ Post-Effective Date Violation ”); or (2) prevent any of the Reorganized Debtors’ shareholders, directors, officers, employees, agents and other owners and controllers of the Reorganized Debtors from being linked to the Applicant/Violator System on account of any Post-Effective Date Violation; provided , however , that the Department shall not take any action against any of the foregoing parties on account of any Post-Effective Date Violation based solely on a failure to undertake reclamation obligations in a timely manner, where such reclamation obligations are being performed and satisfied in accordance with the terms of applicable Reclamation Agreements, consent decrees or this Settlement Agreement.
(ii)      The Department shall and does hereby release the Purchaser, all of its subsidiaries, the First Lien Lenders, the First Lien Agent, the DIP Lenders, the DIP Agent, any affiliate of any of the foregoing (including any entity that is or becomes an affiliate of the Purchaser as a result of the Sale Transaction) and their respective directors, officers, employees and agents from any claims, violations or conditions (1) arising prior to the Effective Date or (2) with respect to the Kentucky Permits or the Retained Assets, in each case except to the extent that any or all of such entities or people after the Effective Date (x) are directors, officers, employees and agents of the Reorganized Debtors, or otherwise operate or own or control (as such term is defined in 405 Ky. Admin. Regs. 8:001), the Kentucky Permits, Retained Assets, or the

10
    


Reorganized Debtors after the Effective Date or (y) constitute or become an operator, or own or control (as such term is defined in 405 Ky. Admin. Regs. 8:001) an operator, of the Transferred Permits or any other permit. For the avoidance of doubt, none of the (i) relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction, (ii) funding obligations of the Purchaser arising under the Reclamation Funding Agreement, and (iii) the consummation of the Sale Transaction, shall be construed to classify or give any right to the Department to classify or assert the Purchaser or its subsidiaries or their respective shareholders, directors, officers, or employees as an owner or controller (as such term is defined in 405 Ky. Admin. Regs. 8:001) of the Reorganized Debtors.
(b)      This Settlement Agreement shall be incorporated by reference into the Confirmation Order. To the extent this Settlement Agreement conflicts or is otherwise inconsistent with the terms of the Plan, the Settlement Agreement shall govern.
9.      Events of Default.
(a)      Each of the following shall constitute an Event of Default under this Settlement Agreement:
(i)      The failure of the Purchaser to timely make any payment in accordance with the Reclamation Funding Agreement within ten days after it is due in accordance with the terms of this Settlement Agreement;
(ii)      The failure of the Reorganized Debtors to timely contribute any amounts required to be contributed to the Restricted Cash Accounts in accordance with the Reclamation Funding Agreement within ten days after the contribution is due in accordance with the terms of this Settlement Agreement;
(iii)      The failure of the Reorganized Debtors to timely comply with their obligations in accordance with any Reclamation Agreement or any consent order with the Department;
(iv)      The Reorganized Debtors’ actual expenditures from the Restricted Cash Accounts exceed their budgeted expenditures by the greater of 20% or $250,000 in the aggregate for any Quarterly Period; and

11
    


(v)      The Reorganized Debtors file a voluntary petition for relief under the Bankruptcy Code, or an involuntary petition is filed against the Reorganized Debtors that is not dismissed within 60 days.
(b)      If an Event of Default occurs, the Department may provide notice to the Reorganized Debtors and the Purchaser of such Event of Default (the “ Notice of Default ”). For any Event of Default arising pursuant to Section ‎9(a)(iii) hereof, the Reorganized Debtors shall have until the date that is ten days from the date of their receipt of the Notice of Default (the “ Cure Deadline ”) to provide the Department with a plan to cure such Event of Default and commence activities pursuant to such plan.
(c)      Upon the occurrence of an Event of Default and, with respect to any Event of Default arising pursuant to Section ‎9(a)(iii) hereof, its continuation until after the Cure Deadline, the Department may:
(i)      terminate this Settlement Agreement;
(ii)      deliver a notice of termination of the right to use cash in the Restricted Cash Accounts and require that such funds be delivered to the Department;
(iii)      draw down on any letter of credit or other collateral posted pursuant to this Settlement Agreement, including without limitation any funds in the Restricted Cash Accounts;
(iv)      revoke any or all of the Reorganized Debtors’ permits in the Commonwealth, including the Kentucky Permits and forfeit the amount of any bonds therefor; and/or
(v)      take any other regulatory or enforcement action permitted by law.
(d)      The Department shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of the Department of any right to take any action upon the occurrence of any Event of Default.
(e)      The termination of this Settlement Agreement shall have no effect on the obligations of the Reorganized Debtors hereunder, the obligations of the Reorganized Debtors or the Purchaser under the Reclamation Funding Agreement, the obligations of the Reorganized Debtors to Fully Reclaim all of their permitted Mining Sites in accordance with the Kentucky Permits and all applicable state and federal laws and otherwise comply with applicable state and federal laws, or any of the releases granted under this Settlement Agreement.

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(f)      Without limiting any other provision of this Settlement Agreement, nothing in this Section ‎9 shall be deemed or construed to limit or otherwise affect the authority or ability of the Department to issue notices of violation or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against the Reorganized Debtors, the Purchaser or any other person or entity or in respect of any permits or mining sites in the Commonwealth, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g)      An Event of Default by the Reorganized Debtors of the type described in Section ‎9(a)(ii) through ‎(v) shall not be construed to require the Purchaser to cure such defaults or otherwise make the Purchaser liable for such defaults. Similarly, an Event of Default by the Purchaser of the type described in Sections ‎9(a)(i) hereof shall not be construed to require the Reorganized Debtors to cure such default or otherwise make the Reorganized Debtors liable for such default.
10.      Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Settlement Agreement:
(a)      This Settlement Agreement, the Reclamation Funding Agreement and the Water Treatment Stipulation shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(b)      The Plan, as it may be amended consistent with the terms of this Settlement Agreement, shall be confirmed on or before July 15, 2016;
(c)      The Confirmation Order shall include customary carve-outs from the release, discharge, injunction, exculpation and similar provisions of the Plan and Confirmation Order for governmental units; provided , however , that such carve-outs shall not limit any releases provided under this Settlement Agreement;
(d)      The Effective Date shall occur on or before July 31, 2016;
(e)      There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First Lien Lenders, the Second Lien Lenders and the Creditors’ Committee, as filed with the Bankruptcy Court prior to May 25, 2016;
(f)      There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and
(g)      There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.

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11.      Settlement Agreement and the Plan . In the event of a conflict between the terms of this Settlement Agreement and the Plan with respect to the terms hereof, this Settlement Agreement shall control.
12.      Covenants, Cooperation and Good Faith Efforts.
(a)      Reclamation Agreements, Plans and Budgets . The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other to negotiate Reclamation Agreements with respect to the Kentucky Permits and develop the Long-Term Budget and the Semi-Annual Budgets for the Kentucky Permits such that reclamation, mitigation and water treatment work is sequenced and otherwise conducted in a manner that (a) protects the public health and safety, (b) complies with state and federal law and (c) properly manages the available financial resources to help ensure the cost-effective and timely completion of Full Reclamation and the release of all bonds associated with the Kentucky Permits.
(b)      Use of Resources . The Reorganized Debtors and the Department agree to work in good faith with each other to ensure that the reclamation, mitigation and water treatment work with respect to the Kentucky Permits is sequenced and otherwise conducted in a manner that maximizes the reclamation work that can be completed with the resources available.
(c)      Timely Reclamation . If the Reorganized Debtors are performing the reclamation, mitigation and water treatment obligations under the Kentucky Permits in accordance with their time frames and provisions or any applicable Reclamation Agreements or consent orders, the Department shall take no action to forfeit the reclamation bonds relating to the Kentucky Permits or issue any notice of noncompliance or cessation order based solely on a failure to undertake reclamation in a timely manner. For the avoidance of doubt, nothing herein affects the rights of the Department to take all enforcement actions consistent with applicable Commonwealth and federal law on any Kentucky Permits for any other violation.
13.      Incidental Permit Transfers and Phased Bond Releases.
(a)      Permit Transfers Incident to Restructuring Transactions . The Plan contemplates that the Debtors will modify the corporate form of certain of the Debtors and establish one or more new ultimate parent entities of the Debtors (collectively, the “ Restructuring Transactions ”). To the extent the Restructuring Transactions may, as a technical matter, require updates or modifications of any of the Kentucky Permits that constitute permit transfers under applicable law, the Reorganized Debtors and the Department agree to cooperate and work in good faith with each other to effectuate such updates, modifications or transfers upon the Reorganized Debtors’ applications therefor.

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(b)      Phased Bond Releases . Upon submittal of appropriate replacement bonds to the Department, any corresponding reclamation bonds originally issued to the Debtors with respect to affected Kentucky Permits will be released in accordance with the standard permit procedures under applicable Commonwealth and federal law.
14.      Third Party Beneficiaries. The Parties acknowledge and agree that the Third Party Beneficiaries are intended to be and hereby are acknowledged to be the sole third party beneficiaries of this Settlement Agreement. The Parties acknowledge and agree that the Third Party Beneficiaries have no duty of performance under this Settlement Agreement to any Party. Notwithstanding anything to the contrary herein, subject to the occurrence of the Effective Date, all of the provisions of this Settlement Agreement expressly or impliedly inuring to the benefit of the Third Party Beneficiaries shall survive the expiration, termination or the supersession of this Settlement Agreement, in each case for any reason, and shall remain fully effective for the benefit of the Third Party Beneficiaries and fully enforceable by the Third Party Beneficiaries against each Party notwithstanding such expiration, termination or superseding cause.
The Parties acknowledge and agree that, except as explicitly set forth in this Section, nothing in this Settlement Agreement is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein).
15.      Successors and Assigns. The provisions of this Settlement Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.
16.      Entire Agreement. This Settlement Agreement, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.
17.      Governing Law. This Settlement Agreement shall be governed by and construed under the laws of the Commonwealth without regard for the conflict of laws provisions thereof.
18.      Authority and Validity . Each Party otherwise represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Settlement Agreement and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (i) to perform its obligations under this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (i) to consummate the

15
    


transactions contemplated herein and therein; (a) such Party’s execution and delivery of, and performance under, this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Settlement Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (a) this Settlement Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Settlement Agreement; and (a) the execution, delivery and performance by such Party (when such performance is due) of this Settlement Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (i) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
19.      No Reliance. Each Party represents and warrants that in entering into this Settlement Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Settlement Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
20.      Modification or Amendment. This Settlement Agreement may be modified or amended only by written agreement executed by each of the Parties and, with regards to any provision impacting the First Lien Lenders or the First Lien Agent, the written consent of the First Lien Lenders or the First Lien Agent, as applicable.
21.      Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Settlement Agreement and to consummate the transactions contemplated hereby and thereby.
22.      Construction. This Settlement Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Settlement Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Settlement Agreement were negotiated at arms’-length, and this Settlement Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Settlement Agreement and the Plan, the terms of this Settlement Agreement shall govern.
23.      Headings. Titles and headings in this Settlement Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Settlement Agreement.

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24.      Execution in Counterpart. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Settlement Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
25.      Severability. If any provision of this Settlement Agreement is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(Remainder of Page Intentionally Blank; Signatures to Follow)



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IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
By:
/s/ Mark M. Manno
 
By:
/s/ Allen Luttrell
 
Name: Mark M. Manno
 
 
Name: Allen Luttrell
 
Title: EVP, General Counsel, CPO & Secretary
 
 
Title: Commissioner
 
 
 
 


CONTURA ENERGY, INC.
 
 
By:
/s/ John DeGroote
 
 
 
 
Name: John DeGroote
 
 
 
 
Title: President and Secretary
 
 
 




    


Exhibit 1     

[Schedule of Kentucky Permits]




    


SCHEDULE OF KENTUCKY PERMITS
COMPLEX
PERMIT NUMBER
PERMITTEE
COUNTY
STATUS
Roxana
8605285
ENTERPRISE MINING COMPANY, LLC
Knott
Active
Roxana
8677024
ENTERPRISE MINING COMPANY, LLC
Letcher
Active
Roxana
8678051
ENTERPRISE MINING COMPANY, LLC
Letcher
Active
Roxana
8678052
ENTERPRISE MINING COMPANY, LLC
Letcher
Active
Sidney
8985168
SIDNEY COAL COMPANY, INC.
Pike
Active
Sidney
8985818
SIDNEY COAL COMPANY, INC.
Pike
Active
Sidney
8988106
SIDNEY COAL COMPANY, INC.
Pike
Active
Sidney
8989157
SIDNEY COAL COMPANY, INC.
Pike
Active
Coalgood
8480322
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8480324
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8480325
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8485533
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8487037
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8487038
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8487039
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8488083
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8488084
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8489031
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Coalgood
8489032
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Martin County
6805012
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8800014
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8800062
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8800207
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8805179
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8805182
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8805188
PETER CAVE MINING COMPANY
Martin
Reclaim-Only
Martin County
8805189
PETER CAVE MINING COMPANY
Martin
Reclaim-Only
Martin County
8805190
PETER CAVE MINING COMPANY
Martin
Reclaim-Only
Martin County
8807000
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8807002
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8808008
PETER CAVE MINING COMPANY
Martin
Reclaim-Only
Martin County
8808015
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8808016
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8808017
PETER CAVE MINING COMPANY
Martin
Reclaim-Only
Roxana
8675269
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only
Sidney
2985329
ISLAND CREEK COAL COMPANY
Pike
Reclaim-Only
Sidney
2985332
ISLAND CREEK COAL COMPANY
Pike
Reclaim-Only
Sidney
8365601
BELFRY COAL CORPORATION
Floyd
Reclaim-Only
Sidney
8585079
BELFRY COAL CORPORATION
Johnson
Reclaim-Only
Sidney
8980573
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984146
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984399
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984400
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984424
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only

1
    


COMPLEX
PERMIT NUMBER
PERMITTEE
COUNTY
STATUS
Sidney
8984430
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985167
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985736
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985742
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985977
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985986
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8987025
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8987094
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8988168
LONG FORK COAL COMPANY
Pike
Reclaim-Only
Sidney
8988170
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8989156
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8989159
LONG FORK COAL COMPANY
Pike
Reclaim-Only
Coalgood
8485532
HARLAN RECLAMATION SERVICES LLC
Harlan County
Reclaim-Only
Coalgood
8485535
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Martin County
8805187
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Roxana
8675272
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only
Roxana
8675279
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only
Roxana
8675280
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only
Roxana
8675282
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only
Sidney
8984029
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984194
SIDNEY COAL COMPANY, INC.
Martin & Pike
Reclaim-Only
Sidney
8984431
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984433
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984434
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984435
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984436
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984496
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985739
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Martin County
8805175
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8805186
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Sidney
8980835
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8980932
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984095
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8987082
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Coalgood
8485536
HARLAN RECLAMATION SERVICES LLC
Harlan
Reclaim-Only
Martin County
8800215
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8805147
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8805180
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8807001
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Martin County
8808010
MARTIN COUNTY COAL CORPORATION
Martin
Reclaim-Only
Rawl
8984439
NEW RIDGE MINING COMPANY
Pike
Reclaim-Only
Roxana
8675268
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only

2
    


COMPLEX
PERMIT NUMBER
PERMITTEE
COUNTY
STATUS
Roxana
8675278
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only
Roxana
8675283
ENTERPRISE MINING COMPANY, LLC
Letcher
Reclaim-Only
Sidney
4985319
ISLAND CREEK COAL COMPANY
Pike
Reclaim-Only
Sidney
6985333
ISLAND CREEK COAL COMPANY
Pike
Reclaim-Only
Sidney
8980639
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8980914
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8980915
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8980947
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984223
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984418
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984432
ROAD FORK DEVELOPMENT COMPANY, INC.
Pike
Reclaim-Only
Sidney
8984437
LONG FORK COAL COMPANY
Pike
Reclaim-Only
Sidney
8985579
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985646
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985647
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985649
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985735
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985745
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985746
SIDNEY COAL COMPANY, INC.
Pike
Reclaim-Only
Sidney
8985751
SIDNEY COAL COMPANY, INC.
Sidney
Reclaim-Only
Sidney
8989160
NEW RIDGE MINING COMPANY
Pike
Reclaim-Only



3
    


Exhibit 2
[Reclamation Funding Agreement]




    


RECLAMATION FUNDING AGREEMENT
THIS AGREEMENT (as it may be amended or modified from time to time, this “ Reclamation Funding Agreement ”) is made and entered into as of July 12, 2016, by and among: Alpha Natural Resources, Inc. (“ANR”), on behalf of itself and its debtor-affiliates (collectively with ANR, the “ Debtors ” or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the “ Reorganized Debtors ”); Contura Energy, Inc. (the “ Purchaser ”); the Illinois Department of Natural Resources; the Kentucky Energy and Environment Cabinet, Department for Natural Resources; the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee (“OSMRE”); the Virginia Department of Mines, Minerals and Energy; and the West Virginia Department of Environmental Protection (collectively, the “ Regulatory Authorities ” and, together with the Debtors and the Purchaser, the “ Parties ”).
WHEREAS , on August 3, 2015 (the “ Petition Date ”), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the “ Chapter 11 Cases ”);
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the “Plan”), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Regulatory Authorities have issued certain permits (collectively, the “ Permits ”) to the Debtors in connection with the Debtors’ operation and reclamation of certain mines and facilities within their respective states or commonwealths (collectively, the “ States ”);
WHEREAS , the Debtors entered into a transaction (the “ Sale Transaction ”) pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith), with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date providing for (a) the sale of certain of the Debtors’ assets to the Purchaser, (b) the assumption of certain of the Debtors’ liabilities by the Purchaser (c) the transfer of certain of the Permits (collectively, the “ Transferred Permits ”) to the Purchaser and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors’ assets that are not sold pursuant to the Sale Transaction (collectively, the “ Retained Assets ”);


    


WHEREAS , a primary purpose of the Reorganized Debtors will be to hold and satisfy their obligations under the Permits associated with the Retained Assets (collectively, the “ Retained Permits ”) and to complete all reclamation requirements of the Permits associated with the Retained Assets including the management of reclamation activities at certain sites with only reclamation activities to be completed (collectively, the “ Reclaim-Only Sites ”);
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Retained Permits associated with a Reclaim-Only Site by State;
WHEREAS , contemporaneously herewith the Debtors and the Purchaser together have entered into separate settlement agreements (collectively, the “ State Settlement Agreements ”) with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration and water treatment (including long term water treatment) in their respective States in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq . (“SMCRA”), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the “ Mining Laws ”) on Mining Complexes operated under Permits previously issued to ANR and its subsidiaries;
WHEREAS , contemporaneously herewith the Debtors, the Purchaser and Citicorp North America, Inc. (the “ First Lien Agent ”) have entered into that certain Stipulation Regarding Water Treatment Obligations (the “ Water Treatment Stipulation ”) with the Environmental Protection Agency (“EPA”) to define the framework and funding for the fulfillment of the Reorganized Debtors’ and the Purchaser’s obligations under the EPA Consent Decree (as defined in the Water Treatment Stipulation) and the Reorganized Debtors’ other water treatment obligations;
WHEREAS , the Parties desire to enter into this Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation and water treatment (including long-term water treatment) and management work to be done on the Reclaim-Only Sites; and
WHEREAS , the terms of this Reclamation Funding Agreement are incorporated into the Plan, and the Parties intend that this Reclamation Funding Agreement and the related State Settlement Agreements shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing, the execution by each of the Regulatory Authorities of their respective State Settlement Agreements and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1.      Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed them in the Plan. In addition to the terms defined above, the following terms have the following meanings herein:

2
    


(a)      “ Effective Date ” means the date upon which the Plan shall become effective in accordance with its terms.
(b)      “ Free Cash Flow ” means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors’ net working capital, minus capital expenditures, measured for any Quarterly Period.
(c)      “ Funding Threshold Amount ” means the funded amount of a State’s Restricted Cash Reclamation Account that is equal to 125% of the remaining Total Cost of Reclamation in that State.
(d)      “ Fully Reclaim ,” “ Fully Reclaimed ” or “ Full Reclamation ” means, as to any or all Retained Permits, the completion of reclamation, as provided for by the applicable Mining Laws.
(e)      “ Restricted Cash Reclamation Accounts ” means a separate interest bearing segregated deposit account for each of the Regulatory Authorities established pursuant to the applicable State Settlement Agreement in which account such Regulatory Authority shall hold a first priority security interest, perfected by “control” under the applicable Uniform Commercial Code.
(f)      “ Total Cost of Reclamation ” means the estimate of the total cost of reclamation, mitigation, the calculated net present value of the cost of water treatment for the period of time specified by the Regulatory Authority’s standards for long-term water treatment and management associated with the Reorganized Debtors’ mining operations. For the avoidance of doubt, the Reorganized Debtors’ proposed Total Cost of Reclamation for Retained Permits in each State shall be reviewed by each applicable Regulatory Authority for completeness and reasonableness of approach.
2.      Funding of the Restricted Cash Reclamation Accounts by the Purchaser.
(a)      Periodic Payments . In accordance with the allocations determined pursuant to Section ‎5 hereof, the Purchaser shall pay the aggregate amount of $50,000,000 into the various Restricted Cash Reclamation Accounts as follows:
(i)      $8,000,000 immediately upon the Effective Date;
(ii)      $10,000,000 on the anniversary of the Effective Date in each of 2017, 2018, and 2019; and

3
    


(iii)      $12,000,000 on the anniversary of the Effective Date in 2020.
(b)      Contingent Payment Obligation . In addition to the amounts paid pursuant to Section ‎2(a) hereof, and in accordance with the allocations set forth in Section ‎5 hereof, the Purchaser shall pay up to an aggregate amount of $50,000,000 (the “ Contingent Payment Obligation Cap ”) into the various Restricted Cash Reclamation Accounts as a contingent payment obligation from 2021 through 2025 (the “ Contingent Payment Obligation ”).
(i)      The Purchaser shall make Contingent Payment Obligation contributions into the Restricted Cash Reclamation Accounts up to the Contingent Payment Obligation Cap only in the following circumstances:
(1)      If and to the extent that the Reorganized Debtors do not contribute $50,000,000 of Free Cash Flow into the Restricted Cash Reclamation Accounts through December 31, 2020 as set forth in Section ‎4(b) hereof; and
(2)      If the Reorganized Debtors make any Reorganized ANR Contingent Revenue Payment (as such term is defined in the Plan) that reduces the amount of Free Cash Flow that the Reorganized Debtors otherwise would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment, then a Contingent Payment Obligation will be payable in the amount of the difference between (A) the amount of Free Cash Flow that the Reorganized Debtors would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment and (A) the amount of Free Cash Flow actually contributed.
(ii)      For the avoidance of doubt, the Purchaser’s obligations under Section ‎2(b)(i) hereof shall be cumulative up to the amount of the Contingent Payment Obligation Cap.
(iii)      The Purchaser shall make any Contingent Payment Obligation contributions up to the Contingent Payment Obligation Cap according to the following schedule, solely to the extent due and payable as of the applicable payment date in accordance with Section ‎2(b)(i) hereof:
(1)      $10,000,000 on the anniversary of the Effective Date in each of 2021, 2022, 2023 and 2024; and

4
    


(2)      The difference between any Contingent Payment Obligation contributions made and the Contingent Payment Obligation Cap on the anniversary of the Effective Date in 2025.
(c)      Parent Guaranty . The Purchaser’s obligations under this Section ‎2 shall be guaranteed by its parent, if any.
3.      Limitations on Certain Transactions by the Purchaser. The Purchaser agrees that, for five years after the Effective Date, it will not sell all or substantially all of its assets unless either:
(a)      the purchaser(s) of such assets agree(s) to assume the liabilities of the Purchaser under this Reclamation Funding Agreement; or
(b)      such liabilities are otherwise satisfied or funded.
4.
Funding of the Restricted Cash Reclamation
Accounts by the Reorganized Debtors.
(a)      Periodic Payments .
(i)      In accordance with the allocations determined in accordance with Section ‎5 hereof, the Reorganized Debtors shall pay and deposit the aggregate amount of $109,000,000 into the various Restricted Cash Reclamation Accounts through 2025.
(ii)      Such payments shall be made in the following aggregate amounts: $5,000,000 in 2016, $10,000,000 in each of 2017 and 2018 and $12,000,000 in each year from 2019 through 2025.
(iii)      All such payments shall be made in equal monthly installments in the year in which they are due. The Reorganized Debtors shall make the first payment on or before August 31, 2016 and the remaining payments on or before the last day of each subsequent month through December 2025.
(b)      Excess Cash Flow Payments .
(i)      In addition to the amounts to be paid pursuant to Section ‎4(a) above, and in accordance with the allocations determined pursuant to Section ‎5 hereof, the Reorganized Debtors shall pay and deposit 50% of the Free Cash Flow that they generate into the Restricted Cash Reclamation Accounts. Such payments are over and above the amounts required to be paid in Section ‎4(a) above.
(ii)      Such payments of Free Cash Flow shall be made with respect to each State until either: (1) all Reclaim-Only sites have been

5
    


Fully Reclaimed and any long-term water treatment or water management obligations in such State are fully funded and have been covered by a method approved by the regulator for the applicable State (such as a long-term water treatment trust); or (2) the Funding Threshold Amount has been reached with respect to each State, it being understood that once the Funding Threshold Amount for a State has been reached, (A) the Free Cash Flow contribution obligation to the Restricted Cash Reclamation Account for the applicable State shall be reduced to an amount necessary to maintain such Funding Threshold Amount, until such time as all Reclaim-Only Sites have been Fully Reclaimed and (A) the remaining portion of the Free Cash Flow contribution shall be deposited into the Restricted Cash Reclamation Accounts of the remaining States in accordance with the allocations determined pursuant to Section ‎5 hereof, as adjusted.
(iii)      The Free Cash Flow contributions required under this Section shall be paid within 30 days after each calendar quarter end, subject to reconciliation on an annual basis.
(c)      Surety Collateral Returns .
(i)      Any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer that has issued bonds in only one State will be paid into the Restricted Cash Reclamation Account of that State or otherwise dealt with in accordance with any applicable agreement among the Reorganized Debtors and such State.
(ii)      To the extent any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer whose bonds relate to permits in multiple States, such collateral shall be contributed to the Restricted Cash Reclamation Accounts for the applicable States: (1) in proportion to the dollar amounts of the bonds versus the amount of the collateral until the amount for any such State exceeds its Funding Threshold Amount; and (2) then to the other States in accordance with the allocations set forth in Section ‎5 hereof, as adjusted.
(d)      In the event of a merger or sale of all or substantially all of the assets of the Reorganized Debtors, then all of the Reorganized Debtors’ obligations under Sections ‎4(a) above and ‎6(c) below shall either (i) be accelerated and paid in full on a net present value basis into the applicable Restricted Cash Reclamation Accounts or (i) be assumed by the purchaser or surviving entity, before or at the closing of such transaction; provided , however , that the Restructuring Transactions, including, without limitation, the NewCo Asset Sale, shall not be deemed to be mergers or sales within the meaning of this Section ‎4(d). For the avoidance of doubt, nothing in this Section ‎4(d) shall:

6
    


(i)      limit or interfere with any Regulatory Authority’s exercise of discretion with respect to approving any permit transfer or other required regulatory approval; or
(ii)      alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
5.      Allocation of Periodic Contributions.
(a)      Periodic contributions required under Sections ‎2 and ‎4 (collectively, the “ Periodic Contributions ”) shall be allocated to the applicable States as set forth in this Section ‎5 .
(b)      For the years 2016 through 2018, the Periodic Contributions shall be allocated among the various Restricted Cash Reclamation Accounts based upon the Debtors’ current relative asset retirement obligations in each State, as follows: 83% for West Virginia; 11.25% for Kentucky; 4% for Virginia; 1% for Illinois; and 0.75% for Tennessee.
(c)      Within 90 days of the Effective Date, the Reorganized Debtors shall begin an evaluation of all of their Permits and shall develop a Total Cost of Reclamation for each State. Such evaluation may be the same as any asset retirement obligation analysis previously undertaken by the Debtors. A preliminary Total Cost of Reclamation for each State shall be developed by July 1, 2017 and provided to each of the States at that time for their review and comment. A final Total Cost of Reclamation shall be provided to each of the States for their review and comment by July 1, 2018.
(d)      The allocation of Periodic Contributions to the Restricted Cash Reclamation Accounts shall be reassessed and adjusted bi-annually beginning on January 1, 2019 based upon the Total Cost of Reclamation in each of the States as of July 1, 2018, and the Periodic Contributions required under Sections ‎2 and ‎4 shall be made to the various Restricted Cash Reclamation Accounts in accordance with such adjusted allocations.
(e)      In the event that the Regulatory Authorities are unable to agree on adjusted allocations based upon the Total Cost of Reclamation, the allocations in Section ‎5(b) above shall continue to apply.
(f)      With respect to Tennessee, once the Reclamation Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s Restricted Cash Reclamation Account, as well as future periodic contributions to such account, shall be paid into the Reclamation Trust.

7
    


6.
Funding of the Reorganized Debtors’ Water Treatment Obligations Pursuant to the Water Treatment Stipulation
(a)      Pursuant to the Water Treatment Stipulation, the Reorganized Debtors will provide EPA and the Regulatory Authorities for the States in which their water treatment occurs (i) an annual summary of the expenditures on their water treatment for the previous year, (i) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (i) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Reorganized Debtors will provide EPA with copies of any budgets delivered to the Regulatory Authorities in accordance with the terms of the State Settlement Agreements.
(b)      The First Lien Lender Contribution
(i)      Pursuant to the Water Treatment Stipulation, on the Effective Date, the Reorganized Debtors, with the consent of the First Lien Lenders, shall pay from the First Lien Lenders’ collateral an additional $5 million to support the Reorganized Debtors’ compliance with their water treatment obligations (the “ First Lien Lender Contribution ”).
(ii)      The First Lien Lender Contribution will be allocated equally among the States to be used for water treatment and other approved projects to improve water quality.
(iii)      On or prior to the Effective Date, the Reorganized Debtors shall create either of the following accounts (in either case, a “ Water Treatment Restricted Cash Account ”) with respect to each State to receive such State’s share of the First Lien Lender Contribution: (1) a segregated subaccount within the each State’s Restricted Cash Reclamation Account (as defined in the applicable State Settlement Agreement); or (2) a separate segregated restricted cash account. With respect to Tennessee, once the Water Treatment Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s Water Treatment Restricted Cash Account, as well as future periodic contributions to such account, shall be placed into the Tennessee Water Treatment Trust until the trust is fully funded as determined by OSMRE.
(c)      The Reorganized Debtor Contribution
(i)      Pursuant to the Water Treatment Stipulation, the Reorganized Debtors shall contribute $15 million into the Water Treatment Restricted Cash Accounts from 2017 through 2023 (the “ Reorganized Debtor Contribution ”) to fund compliance with their water treatment obligations, including their obligations under the EPA Consent Decree.

8
    


(ii)      The Reorganized Debtor Contribution shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on July 1, 2017:
Year
Payment Dates
Aggregate Annual Payment Amount
2017
July 1, October 1
$1,000,000
2018
January 1, April 1, July 1, October 1
$1,500,000
2019
January 1, April 1, July 1, October 1
$2,500,000
2020
January 1, April 1, July 1, October 1
$2,500,000
2021
January 1, April 1, July 1, October 1
$2,500,000
2022
January 1, April 1, July 1, October 1
$2,500,000
2023
January 1, April 1, July 1, October 1
$2,500,000
Total
 
$15,000,000

(iii)      The Reorganized Debtor Contribution for 2017 shall be divided equally among the States. Thereafter, (x) the Reorganized Debtors shall provide 20% of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust (as defined in the Water Treatment Stipulation) until such requirement is terminated pursuant to subparagraph ‎(iv) below and (y) the remainder of the annual Reorganized Debtor Contribution shall be divided among the other States according to the percentage of actual expenditures on water treatment in each State; provided that, each State shall receive a minimum of at least $25,000 each year. The Reorganized Debtors will track their spending on water treatment in each State and submit a report to the applicable Regulatory Authority and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year.
(iv)      Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent Reorganized Debtor Contribution amounts shall be allocated among the other States in accordance with Section ‎6(c)(iii)(y) hereof.
(d)      The Reorganized Debtors will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the “ Minimum Balance ”) that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Reorganized Debtors and the applicable Regulatory Authority on an annual basis; provided that, nothing herein requires the Reorganized Debtors to designate more than $1,000,000 as the aggregate amount of Minimum Balances among the Water Treatment Restricted Cash Accounts in 2016. The Reorganized Debtors shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.

9
    


(e)      Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the State Settlement Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the State Settlement Agreements. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f)      For the avoidance of doubt, the funding to be provided to the Water Treatment Restricted Cash Accounts pursuant to the Water Treatment Stipulation or to the Restricted Cash Reclamation Accounts pursuant to this Reclamation Funding Agreement shall be used solely to fund the Reorganized Debtors’ obligations thereunder and shall not be used to assist or subsidize the Purchaser’s compliance.
7.      Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Reclamation Funding Agreement:
(a)      The Debtors and the Purchaser shall have executed a State Settlement Agreement with the applicable Regulatory Authority with respect to each State;
(b)      This Reclamation Funding Agreement, the Water Treatment Stipulation and the State Settlement Agreements shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(c)      The Plan, as it may be amended consistent with the terms of this Reclamation Funding Agreement and the State Settlement Agreements, shall be confirmed on or before July 15, 2016;
(d)      The Effective Date shall occur on or before July 31, 2016;
(e)      There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First-Lien Lenders, the Second-Lien Lenders and the Unsecured Creditors Committee as filed with the Bankruptcy Court prior to May 25, 2016;
(f)      There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and

10
    


(g)      There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.
8.      Reclamation Funding Agreement and the Plan . In the event of a conflict between the terms of this Reclamation Funding Agreement and the Plan, this Reclamation Funding Agreement shall control.
9.      Covenants, Cooperation and Good Faith Efforts. The Parties agree to cooperate and work in good faith with each other to obtain a consensus as to the Total Cost of Reclamation and the allocation of Periodic Contributions as set forth in Section ‎5 hereof.
10.      Successors and Assigns. The provisions of this Reclamation Funding Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code, and shall inure to the benefit of the Parties and their successors and assigns.
11.      Entire Agreement. This Reclamation Funding Agreement, together with the State Settlement Agreements with respect to each State, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein.
12.      Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Reclamation Funding Agreement, and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (i) to perform its obligations under this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (i) to consummate the transactions contemplated herein and therein; (a) the execution, delivery and performance by it of this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Reclamation Funding Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (a) this Reclamation Funding Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Reclamation Funding Agreement; and (a) the execution, delivery and performance by it (when such performance is due) of this Reclamation Funding Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (i) conflict with, result in a breach of or constitute (with due

11
    


notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to the Regulatory Authorities, the undersigned represents and warrants that he/she has authority to enter into this Reclamation Funding Agreement.
13.      No Reliance. Each Party represents and warrants that in entering into this Reclamation Funding Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Reclamation Funding Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
14.      Modification or Amendment. This Reclamation Funding Agreement may be modified or amended only by written agreement executed by each of the Parties.
15.      Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Reclamation Funding Agreement, and to consummate the transactions contemplated hereby and thereby.
16.      Construction. This Reclamation Funding Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Reclamation Funding Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Reclamation Funding Agreement were negotiated at arms’-length, and this Reclamation Funding Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.
17.      Headings. Titles and headings in this Reclamation Funding Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Reclamation Funding Agreement.
18.      Execution in Counterpart. This Reclamation Funding Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Reclamation Funding Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.
19.      Severability. If any provision of this Reclamation Funding Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions

12
    


thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
(Remainder of Page Intentionally Blank; Signatures to Follow)



13
    


IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
/s/ Mark M. Manno
 
/s/ Allen Luttrell
By: Mark M. Manno
 
By: Allen Luttrell
Its: EVP, General Counsel, CPO & Secretary
 
Its: Commissioner
 
 
 
 
 
 
 
 
CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT
/s/ John DeGroote
 
/s/ Joseph G. Pizarchik
By: John DeGroote
 
By: Joseph G. Pizarchik
  
Its: President and Secretary
 
Its: Director
 
 
 
 
 
 
 
 
 
 
WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
/s/ Kristin A. Boggs
 
/s/ John W. Warren
By: Kristin A. Boggs
 
By: John W. Warren
Its: General Counsel
 
Its: Director
 
 
 
 
 
 
 
 
 
 
ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
/s/ James Hafliger
 
 
By: James Hafliger
 
 
Its: Office of Mines and Minerals Director
 
 
 
 
 



14
    


Exhibit 1     

[Schedule of Retained Permits]



15
    


RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE
COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
S502393
BANDMILL COAL CORPORATION
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S505389
HIGHLAND MINING COMPANY
WV
Bandmill
S505489
HIGHLAND MINING COMPANY
WV
Bandmill
WV1016938
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O504286
TRACE CREEK COAL COMPANY
WV
Band mill
O504691
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
S504186
TRACE CREEK COAL COMPANY
WV
Bandmill
S506288
TRACE CREEK COAL COMPANY
WV
Bandmill
S505389
ALEX ENERGY, INC.
WV
Bandmill
D001982
ARACOMA COAL COMPANY, INC.
WV
Bandmill
U500500
ARACOMA COAL COMPANY, INC.
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
O005082
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
U021383
BANDMILL COAL CORPORATION
WV
Bandmill
O501104
HIGHLAND MINING COMPANY
WV
Bandmill
P501114
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503408
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
S508486
HIGHLAND MINING COMPANY
WV
Bandmill
U009283
RUM CREEK COAL SALES, INC.
WV
Bandmill
S500104
RUM CREEK COAL SALES, INC.
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV

1
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503897
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O002685
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O500788
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O502386
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O504191
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O505088
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S401395
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S504988
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500498
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500590
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503592
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503792
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U504491
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S400400
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501307
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S502099
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501608
PREMIUM ENERGY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U007584
RIVERSIDE ENERGY COMPANY, LLC
WV
Cucumber
U402387
RIVERSIDE ENERGY COMPANY, LLC
WV
Delbarton
P502112
DELBARTON MINING COMPANY
WV
Elk Run
O506086
EAGLE ENERGY INC.
WV
Elk Run
O004383
EAGLE ENERGY INC.
WV
Elk Run
Prospect
ELK RUN COAL COMPANY, INC.
WV
Elk Run
U066300
ELK RUN COAL COMPANY, INC.
WV
Elk Run
P502213
PERFORMANCE COAL COMPANY
WV
Elk Run
P300114
PERFORMANCE COAL COMPANY
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H052900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H056200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200301
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200787
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S102690
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200205
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200401
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200493
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200593
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200609
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P052600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P201414
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P202014
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
R062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S007185
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051600
BROOKS RUN MINING COMPANY, LLC
WV

2
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Erbacon
U102691
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201005
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201400
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201689
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
UO35900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D000782
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011082
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
I048200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P203507
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200310
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200487
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201498
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U307186
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D004781
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H047100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U101991
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011382
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
R067300
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
O100898
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100893
KINGWOOD MINING COMPANY, LLC
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
U301799
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
U301406
MARFORK COAL COMPANY, INC.
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
P064200
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
R067100
GREEN VALLEY COAL COMPANY
WV
Green Valley
U306686
GREEN VALLEY COAL COMPANY
WV
Green Valley
H035600
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV

3
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
R069000
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
U300409
GREEN VALLEY COAL COMPANY
WV
Green Valley
U302912
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U301407
GREEN VALLEY COAL COMPANY
WV
Inman Admiral
D010182
BLACK CASTLE MINING COMPANY
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S601189
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S501400
INDEPENDENCE COAL COMPANY, INC.
WV
Inman Admiral
O509588
OMAR MINING COMPANY
WV
Inman Admiral
S007076
OMAR MINING COMPANY
WV
Inman Admiral
U040300
OMAR MINING COMPANY
WV
Kepler
R063000
DUCHESS COAL COMPANY
WV
Kepler
D006982
BIG BEAR MINING COMPANY
WV
Kepler
O010783
BIG BEAR MINING COMPANY
WV
Kepler
O017483
BIG BEAR MINING COMPANY
WV
Kepler
U058900
BIG BEAR MINING COMPANY
WV
Kepler
O005983
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
O007882
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400896
PAYNTER BRANCH MINING, INC.
WV
Kepler
S401298
PAYNTER BRANCH MINING, INC.
WV
Kepler
U503496
PIONEER MINING, INC.
WV
Kepler
U503596
PIONEER MINING, INC.
WV
Kepler
NPDES WV 1012207
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U047100
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U402195
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400196
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400295
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400595
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400695
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400697
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400901
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401100
RIVERSIDE ENERGY COMPANY, LLC
WV

4
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Kepler
U401300
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401497
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401200
RIVERSIDE ENERGY COMPANY, LLC
WV
Kingston
P300115
KINGSTON MINING, INC.
WV
Kingston
 
KINGSTON MINING, INC.
WV
Kingston
P301012
KINGSTON RESOURCES, INC.
WV
Kingston
P301413
KINGSTON RESOURCES, INC.
WV
Kingston
Prospect No. 9
KINGSTON RESOURCES, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501887
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501992
OMAR MINING COMPANY
WV
Liberty
U002685
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501106
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500594
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501398
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U502191
OMAR MINING COMPANY
WV
Liberty
U501892
OMAR MINING COMPANY
WV
Litwar
P402708
BROOKS RUN MINING COMPANY, LLC
WV
Litwar
O011783
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
O007583
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
P300514
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
U400102
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014483
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014883
RIVERSIDE ENERGY COMPANY, LLC
WV
Mammoth
P302013
ALEX ENERGY, INC.
WV
Mammoth
P303212
ALEX ENERGY, INC.
WV
Mammoth
P304412
ALEX ENERGY, INC.
WV
Mammoth
S004577
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007085
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008379
JACKS BRANCH COAL COMPANY
WV
Mammoth
S301491
JACKS BRANCH COAL COMPANY
WV
Mammoth
S303790
JACKS BRANCH COAL COMPANY
WV
Mammoth
S600886
JACKS BRANCH COAL COMPANY
WV
Mammoth
U005584
JACKS BRANCH COAL COMPANY
WV
Mammoth
U300990
JACKS BRANCH COAL COMPANY
WV
Mammoth
U302200
JACKS BRANCH COAL COMPANY
WV
Mammoth
U601889
JACKS BRANCH COAL COMPANY
WV
Mammoth
S000684
JACKS BRANCH COAL COMPANY
WV

5
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Mammoth
S007885
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008883
JACKS BRANCH COAL COMPANY
WV
Mammoth
Z000481
JACKS BRANCH COAL COMPANY
WV
Mammoth
U045400
JACKS BRANCH COAL COMPANY
WV
Mammoth
U301500
JACKS BRANCH COAL COMPANY
WV
Mammoth
E010300
KANAWHA ENERGY COMPANY
WV
Mammoth
E011000
KANAWHA ENERGY COMPANY
WV
Mammoth
O304391
KANAWHA ENERGY COMPANY
WV
Mammoth
P071300
KANAWHA ENERGY COMPANY
WV
Mammoth
P303611
KANAWHA ENERGY COMPANY
WV
Mammoth
R064900
KANAWHA ENERGY COMPANY
WV
Mammoth
S300691
KANAWHA ENERGY COMPANY
WV
Mammoth
S304589
KANAWHA ENERGY COMPANY
WV
Mammoth
S600988
KANAWHA ENERGY COMPANY
WV
Mammoth
S602389
KANAWHA ENERGY COMPANY
WV
Mammoth
U300904
KANAWHA ENERGY COMPANY
WV
Mammoth
U301290
KANAWHA ENERGY COMPANY
WV
Mammoth
P300205
KANAWHA ENERGY COMPANY
WV
Mammoth
P301111
KANAWHA ENERGY COMPANY
WV
Mammoth
P303310
KANAWHA ENERGY COMPANY
WV
Mammoth
P303511
KANAWHA ENERGY COMPANY
WV
Mammoth
S303390
KANAWHA ENERGY COMPANY
WV
Mammoth
O301907
KANAWHA ENERGY COMPANY
WV
Mammoth
U300504
KANAWHA ENERGY COMPANY
WV
Mammoth
U300896
KANAWHA ENERGY COMPANY
WV
Mammoth
U302099
KANAWHA ENERGY COMPANY
WV
Marfork
 
BOONE EAST DEVELOPMENT CO.
WV
Marfork
P300515
MARFORK COAL COMPANY, INC.
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
D004081
CLEAR FORK COAL COMPANY
WV
Marfork
S014278
CLEAR FORK COAL COMPANY
WV
Marfork
U008383
CLEAR FORK COAL COMPANY
WV
Marfork
U013000
CLEAR FORK COAL COMPANY
WV
Marfork
P500213
ELK RUN COAL COMPANY, INC.
WV
Marfork
P300415
KINGSTON MINING, INC.
WV
Marfork
P301513
MARFORK COAL COMPANY, INC.
WV
Marfork
Pending
MARFORK COAL COMPANY, INC.
WV
Marfork
U301394
MARFORK COAL COMPANY, INC.
WV
Marfork
P301011
MARFORK COAL COMPANY, INC.
WV
Marfork
S300809
MARFORK COAL COMPANY, INC.
WV
Marfork
E003800
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
S011977
PIONEER FUEL CORPORATION
WV
Marfork
S400596
PIONEER FUEL CORPORATION
WV
Marfork
S401595
PIONEER FUEL CORPORATION
WV
Marfork
O400708
PIONEER FUEL CORPORATION
WV

6
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Martin County
E001700
GREYEAGLE COAL COMPANY
WV
Martin County
O013983
GREYEAGLE COAL COMPANY
WV
Nicholas
S005185
ALEX ENERGY, INC.
WV
Nicholas
S300199
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S006385
ALEX ENERGY, INC.
WV
Nicholas
U302494
POWER MOUNTAIN COAL COMPANY
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S300907
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
S302003
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S301192
ALEX ENERGY, INC.
WV
Nicholas
S301806
ALEX ENERGY, INC.
WV
Nicholas
H015500
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O002184
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O004183
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300293
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300589
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O301286
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O302093
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S300590
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U300489
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U302194
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O010983
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S008776
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U026900
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U045800
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U065700
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U067600
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300895
POWER MOUNTAIN COAL COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rawl
D003181
RAWL SALES & PROCESSING COMPANY
WV

7
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Rawl
O507892
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U066700
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U507192
RAWL SALES & PROCESSING COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O504989
RAWL SALES & PROCESSING COMPANY
WV
Rawl
P057200
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rockspring
Prospect
LAUREL CREEK CO., INC.
WV
Rockspring
U500601
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507292
ARACOMA COAL COMPANY, INC.
WV
Rockspring
S504689
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O501090
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507692
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U500304
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U501091
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U502006
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O505491
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
U002584
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
P501014
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
Pending
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
O503290
ROCKSPRING DEVELOPMENT, INC.
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
U501087
STIRRAT COAL COMPANY
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502408
INDEPENDENCE COAL COMPANY, INC.
WV

8
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Twilight
U301695
PERFORMANCE COAL COMPANY
WV
Twilight
U501295
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
O501496
ELK RUN COAL COMPANY, INC.
WV
Twilight
O507891
ELK RUN COAL COMPANY, INC.
WV
Twilight
U501198
ELK RUN COAL COMPANY, INC.
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S500398
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502396
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U502196
INDEPENDENCE COAL COMPANY, INC.
WV
Twin Star
S401197
TWIN STAR MINING, INC. - WV
WV
Unassigned
P500612
INDEPENDENCE COAL COMPANY, INC.
WV
White Flame
S501501
WHITE FLAME ENERGY, INC.
WV
White Flame
S502097
WHITE FLAME ENERGY, INC.
WV
Wabash
39
WABASH MINE HOLDING COMPANY
IL
Wabash
276
WABASH MINE HOLDING COMPANY
IL
Wabash
290
WABASH MINE HOLDING COMPANY
IL
Wabash
158
WABASH MINE HOLDING COMPANY
IL
Wabash
Prospect
WABASH MINE HOLDING COMPANY
IL
Wabash
298
WABASH MINE HOLDING COMPANY
IL
Coalgood
8480322
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480324
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480325
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485533
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487037
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487038
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487039
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488083
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488084
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489031
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489032
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
6805012
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800014
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800062
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800207
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805179
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805182
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805188
PETER CAVE MINING COMPANY
KY
Martin County
8805189
PETER CAVE MINING COMPANY
KY
Martin County
8805190
PETER CAVE MINING COMPANY
KY
Martin County
8807000
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807002
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808008
PETER CAVE MINING COMPANY
KY
Martin County
8808015
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808016
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808017
PETER CAVE MINING COMPANY
KY
Roxana
8675269
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
2985329
ISLAND CREEK COAL COMPANY
KY
Sidney
2985332
ISLAND CREEK COAL COMPANY
KY

9
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Sidney
8365601
BELFRY COAL CORPORATION
KY
Sidney
8585079
BELFRY COAL CORPORATION
KY
Sidney
8980573
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984146
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984399
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984400
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984424
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984430
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8985167
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985736
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985742
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985977
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985986
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987025
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987094
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8988168
LONG FORK COAL COMPANY
KY
Sidney
8988170
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989156
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989159
LONG FORK COAL COMPANY
KY
Coalgood
8485532
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485535
HARLAN RECLAMATION SERVICES LLC
KY
Marnti County
8805187
MARTIN COUNTY COAL CORPORATION
KY
Roxana
8675272
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675279
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675280
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675282
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
8984029
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984194
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984431
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984433
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984434
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984435
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984436
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984496
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985739
SIDNEY COAL COMPANY, INC.
KY
Martin County
8805175
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805186
MARTIN COUNTY COAL CORPORATION
KY
Sidney
8980835
SIDNEY COAL COMPANY, INC.
KY
Sidney
8980932
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984095
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987082
SIDNEY COAL COMPANY, INC.
KY
Coalgood
8485536
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
8800215
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805147
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805180
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807001
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808010
MARTIN COUNTY COAL CORPORATION
KY
Rawl
8984439
NEW RIDGE MINING COMPANY
KY

10
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Roxana
8675268
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675278
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675283
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
4985319
ISLAND CREEK COAL COMPANY
KY
Sidney
6985333
ISLAND CREEK COAL COMPANY
KY
Sidney
8980639
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980914
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980915
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980947
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984223
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984418
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984432
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984437
LONG FORK COAL COMPANY
KY
Sidney
8985579
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985646
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985647
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985649
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985735
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985745
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985746
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985751
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989160
NEW RIDGE MINING COMPANY
KY
Twin Star
1101960
TWIN STAR MINING, INC.
VA
Twin Star
1101961
TWIN STAR MINING, INC.
VA
Twin Star
1101966
TWIN STAR MINING, INC.
VA
Twin Star
1101967
TWIN STAR MINING, INC.
VA
Twin Star
1101968
TWIN STAR MINING, INC.
VA
Twin Star
1101981
TWIN STAR MINING, INC.
VA
Twin Star
1201969
TWIN STAR MINING, INC.
VA
Twin Star
1201970
TWIN STAR MINING, INC.
VA
Twin Star
1201973
TWIN STAR MINING, INC.
VA
Twin Star
1301956
TWIN STAR MINING, INC.
VA
Twin Star
1301962
TWIN STAR MINING, INC.
VA
Twin Star
1801971
TWIN STAR MINING, INC.
VA
TCC
2475
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2904
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2885
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2664
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2957
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2982
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2725
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2710
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2882297
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82144
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2282293
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82201
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82077
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2883130
TENNESSEE CONSOLIDATED COAL CO.
TN

11
    


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
TCC
2283116
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82191
TENNESSEE CONSOLIDATED COAL CO.
TN


12
    
Exhibit 10.15

TERMINATION AGREEMENT

THIS TERMINATION AGREEMENT is made and entered into this 23 rd of October, 2017 (the “Effective Date”), by and among Alpha Natural Resources (“ANR”), on behalf of itself and its affiliates, Contura Energy, Inc. (“Contura”) and the Kentucky Energy and Environmental Cabinet, Department for Natural Resources (the “Department” and collectively with ANR and Contura, the “Parties”);
WHEREAS , on July 12, 2016, the Parties entered into a Permitting and Reclamation Plan Settlement Agreement for the Commonwealth of Kentucky (the “Settlement Agreement”), attached hereto as Exhibit 1 , to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in Kentucky on permits previously issued to ANR and its subsidiaries (the “Kentucky Permits”);
WHEREAS , on July 12, 2016, the Parties also entered into a Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation, water treatment and management work to be done on the Kentucky Permits (the “Reclamation Funding Agreement”);
WHEREAS , ANR subsequently sold the Kentucky Permits to a third party buyer (“Purchaser”); and
WHEREAS, the Department will transfer the Kentucky Permits to Purchaser in response to complete permit transfer applications when the Department deems such applications to meet all requirements for transfer pursuant to Kentucky Revised Statutes Chapter 350 and the regulations promulgated thereto;
NOW THEREFORE, in consideration of the foregoing, the Parties hereto agree as follows:
1. Termination of Settlement Agreement . Because the Settlement Agreement solely addresses the reclamation and restoration of the Kentucky Permits, which permits will no longer be held by ANR, the Settlement Agreement should be and is hereby terminated; provided, however, that ANR shall remain fully responsible for complying with the Kentucky Permits and retain liability for same until such permits are transferred to Purchaser. For the avoidance of doubt, the termination of the Settlement Agreement does not alter or affect the releases previously granted in Paragraph 8 of the Settlement Agreement.
2. Termination of Obligations Under Reclamation Funding Agreement . Because the Reclamation Funding Agreement solely requires the funding of reclamation on the Kentucky Permits in the Commonwealth of Kentucky and because the Kentucky Permits will no longer be held by ANR, the obligations of the Parties under the Reclamation Funding Agreement, as they relate to the Kentucky Permits and the Commonwealth of Kentucky, should be and are hereby terminated. The Parties will cooperate with the other parties to the Reclamation Funding Agreement, including the States of Tennessee, Illinois and West Virginia and the Commonwealth of Virginia, as necessary, to reallocate funding under the Reclamation Funding Agreement.

- 1 -

3. Successors and Assigns. The provisions of this Termination Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.
4. Entire Agreement. This Termination Agreement, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.
5. Governing Law. This Termination Agreement shall be governed by and construed under the laws of the Commonwealth of Kentucky without regard for the conflict of laws provisions thereof.
6. Authority and Validity . Each Party otherwise represents, warrants and acknowledges that: (a) it has all the requisite authority to execute and deliver this Termination Agreement; (b) such Party's execution and delivery of, and performance under, this Termination Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Termination Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Termination Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Termination Agreement; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Termination Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
7. No Reliance. Each Party represents and warrants that in entering into this Termination Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has Kentucky to represent it in this matter. In entering into this Termination Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
8. Modification or Amendment. This Termination Agreement may be modified or amended only by written agreement executed by each of the Parties.
9. Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Termination Agreement and to consummate the transactions contemplated hereby and thereby.

- 2 -

10. Construction. This Termination Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Termination Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Termination Agreement were negotiated at arms'-length, and this Termination Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.
11. Headings. Titles and headings in this Termination Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Termination Agreement.
12. Execution in Counterpart. This Termination Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Termination Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
13. Severability. If any provision of this Termination Agreement is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

(Remainder of Page Intentionally Blank; Signatures to Follow)


- 3 -

IN WITNESS WHEREOF, the Parties hereto have executed this Termination Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its affiliates
 
KENTUCKY ENERGY AND
ENVIRONMENTAL CABINET,
DEPARTMENT FOR NATURAL
RESOURCES
/s/ Andrew B. McCallister
 
 
By: Andrew B. McCallister
 
/s/ Charles G. Snavely
Its: Senior Vice President, General Counsel and Secretary
 
By: Charles G. Snavely
 
Its: Secretary
 
 
 
CONTURA ENERGY, INC.
 
 
 
 
 
/s/ Mark M. Manno
 
 
By: Mark M. Manno
 
 
Its: EVP, General Counsel, Secretary & CPO
 
 

Exhibit 10.16
EXECUTION VERSION

PERMITTING AND RECLAMATION PLAN
SETTLEMENT AGREEMENT FOR THE STATE OF ILLINOIS
THIS AGREEMENT (as it may be amended or modified from time to time, this " Settlement Agreement ") is made and entered into as of July 12, 2016, by and among Alpha Natural Resources, Inc. (" ANR "), on behalf of itself and its debtor-affiliates (collectively with ANR, the " Debtors " or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the " Reorganized Debtors "), Contura Energy, Inc. (the " Purchaser ") and the Illinois Department of Natural Resources (the " Department " and, collectively with the Debtors and the Purchaser, the " Parties ").
WHEREAS , on August 3, 2015 (the " Petition Date "), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the " Bankruptcy Code ") in the United States Bankruptcy Court for the Eastern District of Virginia (the " Bankruptcy Court "), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the " Chapter 11 Cases ");
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the " Plan "), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Department has issued certain permits to the Debtors (collectively, the " Illinois Permits ") in connection with the Debtors' operation and reclamation of their Wabash mining complex (the " Mining Complex ") within the State of Illinois (the " State ");
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying the Illinois Permits;
WHEREAS, the Debtors are in general compliance with, and are continuing to perform their ongoing reclamation obligations in accordance with, the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. (" SMCRA "), its State analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the " Mining Laws ");
WHEREAS, the Debtors are parties to a transaction (the " Sale Transaction ") pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith), with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date (as it may be modified, supplemented or amended, the " APA ") providing for (a) the sale of certain of the Debtors' assets (collectively, the " Purchased Assets ") to the Purchaser, (b) the assumption of certain of the Debtors' liabilities by the Purchaser and (c) the transfer to the Purchaser of certain


    


permits (collectively, the " Transferred Permits ") and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors' coal mining assets that are not sold pursuant to the Sale Transaction (collectively, the " Retained Assets ");
WHEREAS , all of the Debtors' coal mining assets in the State are Retained Assets, and none of the Illinois Permits are Transferred Permits;
WHEREAS , the primary purpose of the Reorganized Debtors will be to hold the permits associated with the Retained Assets, including the Illinois Permits, that have mining operations: (a) with only reclamation activities to be completed (collectively, the " Reclaim-Only Sites "), and to manage the reclamation activities at the Reclaim-Only Sites; and (b) where coal currently is being mined and is expected to be mined in the future (collectively, the " Active Sites " and, together with the Reclaim-Only Sites, the " Mining Sites ") and to manage and/or operate the Active Sites;
WHEREAS , the Mining Complex is a Reclaim-Only Site;
WHEREAS , the Parties desire to enter into this Settlement Agreement to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in the State in accordance with the Mining Laws on the Mining Complex operated under Illinois Permits previously issued to ANR and its subsidiaries;
WHEREAS , the terms of this Settlement Agreement are incorporated into the Plan, and the Parties intend that this Settlement Agreement shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Definitions . Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Plan. In addition to the terms defined elsewhere in this Settlement Agreement, the terms below have the following meanings herein:
(a)      " Affiliate " means "affiliate," as such term is defined in section 101 (2) of the Bankruptcy Code.
(b)      " Applicant/Violator System " means the nationwide database maintained by OSMRE of mine applicants, permittees, operators, application and permit records, as well as unabated or uncorrected environmental violations pursuant to SMCRA or (ii) the analogous database maintained by the Department pursuant to the Illinois Surface Coal Mining Land Conservation and Reclamation Act.

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(c)      " Effective Date " means the date upon which the Plan shall become effective in accordance with its terms.
(d)      " Event of Default " has the meaning ascribed to it in Section 9(a) hereof.
(e)      " Financial Assurance " means a Surety Bond or an alternative to a bond, as provided for by 225 Ill. Comp. Stat. Ann. 720/6.05.
(f)      " First Lien Lenders " has the meaning given such term in the Plan.
(g)      " Free Cash Flow " means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors' net working capital, minus capital expenditures, measured for any Quarterly Period.
(h)      " Fully Reclaim ," " Fully Reclaimed " or " Full Reclamation " means, as to any or all of the Illinois Permits, completion of reclamation, as provided for under applicable Mining Laws.
(i)      " Material Asset Sale " means a sale, in any single or related transaction, of Reorganized ANR assets, other than sales of coal in the ordinary course of business, generating $100,000 or more in net cash proceeds.
(j)      " OSMRE " means the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement.
(k)      " Quarterly Period " means a full calendar-year quarter ending each March 31, June 30, September 30 and December 31; provided , however , that the first Quarterly Period after the Effective Date shall be deemed to run from the Effective Date through September 30.
(l)      " Reclamation Funding Agreement " means the agreement, substantially in the form attached hereto as Exhibit 2 , by and among the Debtors, for and on behalf of themselves and the Reorganized Debtors, the Purchaser and the appropriate regulatory agencies of each of the States of Illinois, Tennessee (as administered by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia.
(m)      " Restricted Cash Accounts " means, collectively, the Restricted Cash Reclamation Account and the Water Treatment Restricted Cash Account.
(n)      " Restricted Cash Reclamation Account " means an interest bearing segregated deposit account in which the Department shall hold a first priority security interest, perfected by "control" under the Illinois Uniform Commercial

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Code into which funds are deposited pursuant to Sections 2, 4 and 5 of the Reclamation Funding Agreement. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Restricted Cash Reclamation Account in overnight securities consistent with their cash management policy.
(o)      " Retained Bonds " means any reclamation bonds associated with the Illinois Permits, as existing on the date hereof.
(p)      " Surety Bond " means a performance bond issued in accordance with 225 Ill. Comp. Stat. Ann. 720/6.01.
(q)      " Third Party Beneficiaries " means the First Lien Lenders, their officers, directors, employees and advisors, and each of their Affiliates, successors and assigns.
(r)      " Water Treatment Restricted Cash Account " has the meaning ascribed to it in the Reclamation Funding Agreement and in which the Department shall hold a first priority security interest, perfected by "control" under the Illinois Uniform Commercial Code. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Water Treatment Restricted Cash Account in overnight securities consistent with their cash management policy.
2.      Removal of Coal Incidental to Reclamation . Subject to the issuance of further orders of the Department, the Department agrees that the Reorganized Debtors may remove coal incidental to their reclamation activities at the Mining Complex.
3.      Continuation of Existing Bonds . All Retained Bonds shall remain in place or shall be replaced with Surety Bonds or other Financial Assurance reasonably acceptable to the Department of an identical amount.
4.      Establishment and Funding of the Restricted Cash Accounts .
(a)      On or prior to the Effective Date, the Debtors or the Reorganized Debtors shall establish the Restricted Cash Accounts in accordance with the terms of this Settlement Agreement and the Reclamation Funding Agreement and shall execute and deliver to the Department a deposit account control agreement in form and substance reasonably satisfactory to the Department with respect to the establishment and use of the Restricted Cash Accounts.
(b)      The Reorganized Debtors shall fund the Restricted Cash Accounts as follows:
(i)      The Reorganized Debtors shall deposit into the Restricted Cash Accounts all funds required to be paid or deposited to the State in accordance with the Reclamation Funding Agreement.

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(ii)      Except as may otherwise be agreed to by the Department and the Reorganized Debtors, the Reorganized Debtors shall deposit into the Restricted Cash Reclamation Account: (1) 50% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the State with respect to which Material Asset Sale the net cash proceeds are $500,000 or more; and (2) 25% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the State with respect to which Material Asset Sale the net cash proceeds are at least $100,000 but less than $500,000.
(iii)    Any collateral returned to or received by the Reorganized Debtors by, from or with respect to any issuer of any Surety Bond(s) issued in the State shall be deposited in the Restricted Cash Reclamation Account.
(c)      All funds deposited into the Restricted Cash Accounts may be used solely to fund reclamation, mitigation and water treatment and management obligations in the State in accordance with the terms of this Settlement Agreement and the approved Reclamation Schedule (as defined below) and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement.
(d)      The Department shall have the right to audit the Restricted Cash Accounts at any time and from time to time, in each case upon reasonable notice to the Reorganized Debtors.
5.      Illinois Reclamation Compliance .
(a)      Obligation to Complete Reclamation .
(i)      The Reorganized Debtors hereby acknowledge their obligations to Fully Reclaim the Mining Complex in accordance with the Illinois Permits and all applicable state and federal laws, without any limitation relating to the amounts included in or required to be deposited or paid into the Restricted Cash Reclamation Account or the amount of any of the Surety Bonds or other Financial Assurance issued pursuant to or in accordance with this Settlement Agreement.
(ii)      Reclamation of the Mining Complex shall be complete by the tenth anniversary of the Effective Date.
(b)      Reclamation Schedule . Within 60 days after the Effective Date, the Reorganized Debtors shall submit a proposed schedule to the Department for approval (the " Reclamation Schedule ") providing a schedule of priority for reclamation, mitigation and water treatment and management with respect to the

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Mining Complex. To the extent necessary or appropriate, the Reorganized Debtors and the Department shall negotiate in good faith and use reasonable best efforts to resolve any disagreement with respect to the Reclamation Schedule.
(c)      Use of Funds in Restricted Cash Accounts .
(i)      Subject to the terms and provisions of this Settlement Agreement and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement and unless and until the Department delivers a notice pursuant to Section 9(c)(ii) hereof, the Reorganized Debtors may use funds contributed to the Restricted Cash Accounts in the performance of their obligations to complete reclamation, mitigation (to the extent required under Illinois Permits issued by the Department) and water treatment and management only within the State and only in accordance with the Illinois Permits and the approved Reclamation Schedule; provided, however, that the Reorganized Debtors may use funds in the Restricted Cash Accounts for mitigation under section 404 of the Clean Water Act only if agreed to by the Department. For the avoidance of doubt, the Reorganized Debtors may not use the funds in the Restricted Cash Accounts (a) for the payment of premiums on the Retained Bonds or any Surety Bonds or other Financial Assurance that replace or supplement the Retained Bonds; or (b) to pay for maintenance or general upkeep of the Mining Complex unrelated to the reclamation, mitigation or water treatment and management approved by the Department in the Reclamation Schedule.
(ii)      Upon the Department's delivery of a notice pursuant to Section 9(c)(ii) hereof, the Reorganized Debtors' right to use funds in the Restricted Cash Accounts shall immediately cease without further action on the part of the Department, the funds then contained in the Restricted Cash Accounts shall be deemed to constitute a cash bond (as provided for under 62 Ill. Adm. Code 300.40) with respect to the Reorganized Debtors' performance of their obligations to reclaim and manage and treat water at the Mining Complex and the Department shall be entitled to execute upon its collateral pledge of any amounts held in or payable into the Restricted Cash Accounts in accordance with Section 9(c)(iii) hereof.
(iii)    Upon written confirmation from the Department confirming the Full Reclamation of the Illinois Permits and the release of the associated bonds, any remaining funds in the Restricted Cash Accounts shall be delivered to the Reorganized Debtors.
(d)      Budgeting and Accounting for Reclamation and Water Treatment .
(i)      Within 45 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, subject to

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approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from the Effective Date through December 31, 2016.
(ii)      Within 120 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, based on the approved Reclamation Schedule, reflecting the Reorganized Debtors' reasonable best efforts to project estimated expenditures from the Restricted Cash Accounts on account of reclamation, mitigation and water treatment and management expenses at the Mining Complex through December 31, 2018 (the " Long-Term Budget ").
(iii)    On or before December 1, 2016, the Reorganized Debtors shall provide to the Department a budget (the " Semi-Annual Budget "), subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from January 1, 2017 through June 30, 2017. The Reorganized Debtors shall revise and update the Semi-Annual Budget for each ensuing six-month period by no later than 30 days prior to the conclusion of the current period (or on such schedule as may otherwise be agreed upon by the Reorganized Debtors and the Department).
(iv)    The Reorganized Debtors shall provide to the Department accountings of its Free Cash Flow and actual-to-budgeted expenditures from the Restricted Cash Accounts within 30 days after the end of each Quarterly Period. Such accountings shall be certified as to their accuracy by a senior officer of the Reorganized Debtors.
(v)      The Reorganized Debtors shall meet with the Department on a quarterly basis: (1) to review reclamation and water treatment progress, the Long-Term Budget and the current Semi-Annual Budget; (2) to provide updates on reclamation and water treatment spending from the Restricted Cash Accounts; and (3) to discuss other matters relevant to their obligations to fund such accounts.
6.      Other Provisions on Bonding and Reclamation .
(a)      Other Permit Revisions, Modifications and Amendments . The Reorganized Debtors may submit applications for revisions, modifications or amendments to the Illinois Permits as the Reorganized Debtors may determine to be desirable or necessary to amend the terms and conditions of any Illinois Permit or to facilitate bond reduction, bond release and/or efficient and cost effective completion of reclamation. Any applications for revision, modification or amendment of the Illinois Permits will be advertised in accordance with

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applicable regulatory requirements and otherwise comply with applicable regulatory requirements. The Reorganized Debtors and the Department agree to respond to comments received on any such application on a timely basis. The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other such that such Illinois Permit revisions, modifications or amendments are processed in a timely manner to facilitate the completion of reclamation in a manner consistent with the Reclamation Schedule and applicable state and federal law.
(b)      Access to Rejected Leasehold Properties .
(i)      Consistent with the order authorizing, among other things, the rejection of certain unexpired leases (Docket No. 2239) (the " Rejection Order ") and any similar order, the Debtors and the Reorganized Debtors shall work with the lessors under rejected leases to obtain access to the applicable sites to complete reclamation or perform mitigation or water treatment (any such site, a " Rejected Lease Site ").
(ii)      If the Debtors or the Reorganized Debtors are unable to obtain access to any Rejected Lease Site to complete reclamation or perform mitigation or water treatment, the Reorganized Debtors and the Department shall work cooperatively and in good faith to address and remedy the access issue and to develop a mechanism to ensure such access.
(iii)    The failure to obtain access shall not excuse the Debtors or the Reorganized Debtors from complying with their reclamation, mitigation and water treatment obligations under applicable law. The Debtors shall include language in the order confirming the Plan (the " Confirmation Order ")clarifying that paragraph 8 of the Rejection Order and any other similar order does not apply to the Department or interfere in any way with the Department's enforcement of the surface mining laws against the Debtors, the Reorganized Debtors or any other parties and incorporating any other provisions agreed upon by the Debtors and the Reorganized Debtors.
(c)      Consent Orders . The Reorganized Debtors and the Department shall negotiate in good faith such consent orders as the Department shall deem necessary or appropriate to embody the terms of the Reclamation Schedule and this Settlement Agreement.
7.      Limitations on Certain Transactions .
(a)      Asset Sales . With respect to all Material Asset Sales involving mining assets located in the State or Illinois Permits, the Reorganized Debtors

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shall provide reasonable notice of, and consult with the Department regarding, the proposed Material Asset Sale.
(b)      No Dividends . Until the Reorganized Debtors have fulfilled their obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with this Settlement Agreement, ANR, Inc., Alpha Natural Resource Holdings, Inc., and any other issuer of equity interests distributed to creditors under the Plan, other than the Purchaser or any of its subsidiaries, shall not make any distributions on account of any of their equity interests; provided , however , that nothing herein shall prohibit the Reorganized Debtors from making payments or otherwise satisfying their obligations pursuant to the Plan with respect to the Reorganized ANR Contingent Revenue Payment.
(c)      For the avoidance of doubt, nothing in Section 7(a) hereof shall: (i) limit or interfere with the Department's exercise of discretion with respect to any required regulatory approval; (ii) alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation of all of its or their respective permitted sites in accordance with the approved Reclamation Schedule, applicable consent decrees and this Settlement Agreement; or (iii) apply to the Sale Transaction.
8.      Releases .
(a)      The Department agrees that, as of the Effective Date:
(i)      (1) The Department shall and does hereby release the Debtors' shareholders, directors, officers, employees and agents from any claims, violations or conditions arising prior to the Effective Date; and (2) the Department shall not link any of the Debtors' shareholders, directors, officers, employees or agents to the Applicant/Violator System for any claims, violations or conditions arising prior to the Effective Date. The Parties agree that nothing in the foregoing shall (1) release or affect the liability of any of the Reorganized Debtors or their shareholders, directors, officers, employees, agents or other owners or controllers for any claims or Mining Law violations (including, but not limited to, liability for material damage to surface lands per 62 Ill. Admin. Code § 1817.121(c)(1), or to structures or facilities per 62 Ill. Admin. Code § 1817.121(c)(2)) with respect to the Retained Assets and the Illinois Permits first arising after the Effective Date (whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date) (a " Post-Effective Date Violation "); or (2) prevent any of the Reorganized Debtors' shareholders, directors, officers, employees, agents and other owners and controllers of the Reorganized Debtors from being linked to the Applicant/Violator System on account of any Post-Effective Date Violation; provided , however , that the Department shall not take any action against any of the foregoing parties on account of any

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Post-Effective Date Violation based solely on a failure to undertake reclamation obligations in a timely manner, where such reclamation obligations are being performed and satisfied in accordance with the terms of the approved Reclamation Schedule, applicable consent decrees or this Settlement Agreement.
(ii)      The Department shall and does hereby release the Purchaser all of its subsidiaries, the First Lien Lenders, the First Lien Agent, the DIP Lenders, the DIP Agent, any affiliate of any of the foregoing (including any entity that is or becomes an affiliate of the Purchaser as a result of the Sale Transaction), and their respective directors, officers, employees and agents from any claims, violations or conditions (1) arising prior to the Effective Date or (2) with respect to the Illinois Permits or the Retained Assets, in each case except to the extent that any or all of such entities or people after the Effective Date (x) are directors, officers, employees and agents of the Reorganized Debtors, or otherwise operate or own or control the Illinois Permits, the Retained Assets or the Reorganized Debtors after the Effective Date or (y) constitute or become an operator, or own or control an operator, of the Transferred Permits or any other permit. For avoidance of doubt, none of the (i) relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction, (ii) funding obligations of the Purchaser arising under the Reclamation Funding Agreement, and (iii) the consummation of the Sale Transaction, shall be construed to classify or give any right to the Department to classify or assert the Purchaser or its subsidiaries or their respective shareholders, directors, officers or employees as an owner or controller of the Reorganized Debtors.
(b)      This Settlement Agreement shall be incorporated by reference into the Confirmation Order. To the extent this Settlement Agreement conflicts or is otherwise inconsistent with the terms of the Plan, the Settlement Agreement shall govern.
9.      Events of Default .
(a)      Each of the following shall constitute an Event of Default under this Settlement Agreement:
(i)      The failure of the Purchaser to timely make any payment in accordance with the Reclamation Funding Agreement within ten days after it is due in accordance with the terms of this Settlement Agreement;

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(ii)      The failure of the Reorganized Debtors to timely contribute any amounts required to be contributed to the Restricted Cash Accounts in accordance with the Reclamation Funding Agreement within ten days after the contribution is due in accordance with the terms of this Settlement Agreement;
(iii)    The failure of the Reorganized Debtors to timely comply with their obligations in accordance with the approved Reclamation Schedule or any consent order with the Department;
(iv)    The Reorganized Debtors' actual expenditures from the Restricted Cash Accounts exceed their budgeted expenditures by the greater of 20% or $100,000 in the aggregate for any Quarterly Period; and
(v)      The Reorganized Debtors file a voluntary petition for relief under the Bankruptcy Code, or an involuntary petition is filed against the Reorganized Debtors that is not dismissed within 60 days.
(b)      If an Event of Default occurs, the Department may provide notice to the Reorganized Debtors and the Purchaser of such Event of Default (the " Notice of Default "). The Reorganized Debtors and the Purchaser shall have until the date that is 30 days from the date of their receipt of the Notice of Default (the " Cure Deadline ") to cure any Event of Default arising pursuant to Section 9(a)(iii) hereof.
(c)      Upon the occurrence of an Event of Default and, with respect to any Event of Default arising pursuant to Section 9(a)(iii) hereof, its continuation until after the Cure Deadline, the Department may:
(i)      terminate this Settlement Agreement;
(ii)      deliver a notice of termination of the right to use cash in the Restricted Cash Accounts and require that such funds be delivered to the Department;
(iii)    draw down on any letter of credit or other collateral posted pursuant to this Settlement Agreement, including without limitation any funds in the Restricted Cash Accounts;
(iv)    revoke any or all of the Reorganized Debtors' permits in the State, including the Illinois Permits and forfeit the amount of any bonds therefor; and/or
(v)      take any other regulatory or enforcement action permitted by law.

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(d)      The Department shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of the Department of any right to take any action upon the occurrence of any Event of Default.
(e)      The termination of this Settlement Agreement shall have no effect on the obligations of the Reorganized Debtors hereunder, the obligations of the Reorganized Debtors or the Purchaser under the Reclamation Funding Agreement, the obligations of the Reorganized Debtors to Fully Reclaim all of their permitted Mining Sites in accordance with the Illinois Permits and all applicable state and federal laws and otherwise comply with applicable state and federal laws, or any of the releases granted under this Settlement Agreement.
(f)      Without limiting any other provision of this Settlement Agreement, nothing in this Section 9 shall be deemed or construed to limit or otherwise affect the authority or ability of the Department to issue notices of violation or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against the Reorganized Debtors, the Purchaser or any other person or entity or in respect of any permits or mining sites in the State, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g)      An Event of Default by the Reorganized Debtors of the type described in Section 9(a) (ii) through (v) shall not be construed to require the Purchaser to cure such defaults or otherwise make the Purchaser liable for such defaults. Similarly, an Event of Default by the Purchaser of the type described in Section 9(a)(i) hereof shall not be construed to require the Reorganized Debtors to cure such default or otherwise make the Reorganized Debtors liable for such default.
10.      Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Settlement Agreement:
(a)      This Settlement Agreement, the Reclamation Funding Agreement and the Water Treatment Stipulation shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(b)      The Plan, as it may be amended consistent with the terms of this Settlement Agreement, shall be confirmed on or before July 15, 2016;
(c)      The Confirmation Order shall include customary carve-outs from the release, discharge, injunction, exculpation and similar provisions of the Plan and Confirmation Order for governmental units; provided, however, that such carve-outs shall not limit any releases provided under this Settlement Agreement;
(d)      The Effective Date shall occur on or before July 31, 2016;

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(e)      There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First Lien Lenders, the Second Lien Lenders and the Creditors' Committee, as filed with the Bankruptcy Court prior to May 25, 2016;
(f)      There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and
(g)      There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.
11.      Settlement Agreement and the Plan . In the event of a conflict between the terms of this Settlement Agreement and the Plan with respect to the terms hereof, this Settlement Agreement shall control.
12.      Covenants, Cooperation and Good Faith Efforts .
(a)      Reclamation Schedule and Budgets . The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other with respect to the Reclamation Schedule and the Illinois Permits and to develop the Long-Term Budget and the Semi-Annual Budgets for the Illinois Permits such that reclamation, mitigation and water treatment work is sequenced and otherwise conducted in a manner that (a) protects the public health and safety, (b) complies with state and federal law and (c) properly manages the available financial resources to help ensure the cost-effective and timely completion of Full Reclamation and the release of all bonds associated with the Illinois Permits.
(b)      Use of Resources . The Reorganized Debtors and the Department agree to work in good faith with each other to ensure that the reclamation, mitigation and water treatment work with respect to the Illinois Permits is sequenced and otherwise conducted in a manner that maximizes the reclamation work that can be completed with the resources available.
(c)      Timely Reclamation . If the Reorganized Debtors are performing the reclamation, mitigation and water treatment obligations under the Illinois Permits in accordance with their time frames and the provisions of the approved Reclamation Schedule or applicable consent orders, the Department shall take no action to forfeit the reclamation bonds relating to the Illinois Permits or issue any notice of noncompliance or cessation order based solely on a failure to undertake reclamation in a timely manner. Other than as set forth above with respect to timely reclamation, the Department reserves all rights to take all enforcement actions consistent with applicable State and federal law.
13.      Incidental Permit Transfers and Phased Bond Releases .

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(a)      Permit Transfers Incidental to Restructuring Transactions . The Plan contemplates that the Debtors will modify the corporate form of certain of the Debtors and establish one or more new ultimate parent entities of the Debtors (collectively, the " Restructuring Transactions "). To the extent the Restructuring Transactions may, as a technical matter, require updates or modifications of any Illinois Permits that constitute permit transfers under applicable law, the Reorganized Debtors and the Department agree to cooperate and work in good faith with each other to effectuate such updates, modifications or transfers upon the Reorganized Debtors' application therefor.
(b)      Phased Bond Releases . Upon submittal of appropriate replacement bonds to the Department, any corresponding reclamation bonds originally issued to the Debtors with respect to affected Illinois Permits will be released in accordance with the standard permit procedures under applicable State and federal law.
14.      Third Party Beneficiaries . The Parties acknowledge and agree that the Third Party Beneficiaries are intended to be and hereby are acknowledged to be the sole third party beneficiaries of this Settlement Agreement. The Parties acknowledge and agree that the Third Party Beneficiaries have no duty of performance under this Settlement Agreement to any Party. Notwithstanding anything to the contrary herein, subject to the occurrence of the Effective Date, all of the provisions of this Settlement Agreement expressly or impliedly inuring to the benefit of the Third Party Beneficiaries shall survive the expiration, termination or the supersession of this Settlement Agreement, in each case for any reason, and shall remain fully effective for the benefit of the Third Party Beneficiaries and fully enforceable by the Third Party Beneficiaries against each Party notwithstanding such expiration, termination or superseding cause. The Parties acknowledge and agree that, except as explicitly set forth in this Section, nothing in this Settlement Agreement is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein).
15.      Successors and Assigns . The provisions of this Settlement Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.
16.      Entire Agreement . This Settlement Agreement, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.

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17.      Governing Law . This Settlement Agreement shall be governed by and construed under the laws of the State without regard for the conflict of laws provisions thereof.
18.      Authority and Validity . Each Party otherwise represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Settlement Agreement and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) such Party's execution and delivery of, and performance under, this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Settlement Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Settlement Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Settlement Agreement; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Settlement Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
19.      No Reliance . Each Party represents and warrants that in entering into this Settlement Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Settlement Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
20.      Modification or Amendment . This Settlement Agreement may be modified or amended only by written agreement executed by each of the Parties and, with regards to any provision impacting the First Lien Lenders or the First Lien Agent, the written consent of the First Lien Lenders or the First Lien Agent, as applicable.
21.      Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Settlement Agreement and to consummate the transactions contemplated hereby and thereby.

15
    


22.      Construction . This Settlement Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Settlement Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Settlement Agreement were negotiated at arms'-length, and this Settlement Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Settlement Agreement and the Plan, the terms of this Settlement Agreement shall govern.
23.      Headings . Titles and headings in this Settlement Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Settlement Agreement.
24.      Execution in Counterpart . This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Settlement Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
25.      Severability . If any provision of this Settlement Agreement is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.


16
    


IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
ILLINOIS DEPARTMENT OF NATURAL RESOURCES
/s/ Mark M. Manno
 
 
By:
Mark M. Manno
 
By:
 
Its:
EVP, General Counsel, CPO & Secretary
 
Its:
 

CONTURA ENERGY, INC>
 
By:
 
Its:
 



    



IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 


CONTURA ENERGY, INC>
/s/ John DeGroote
By:
John DeGroote
Its:
President and Secretary


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IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
/s/ James Hafliger
By:
 
 
By:
James Hafliger
Its:
 
 
Its:
Office of Mines and Minerals Director


CONTURA ENERGY, INC>
 
By:
 
Its:
 


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Exhibit 1

[Schedule of Illinois Permits]




    


SCHEDULE OF ILLINOIS PERMITS
COMPLEX
PERMIT NUMBER
PERMITTEE
MINE
STATUS
Wabash
39
WABASH MINE HOLDING COMPANY
IL-DNR General Mine Permit
Reclaim Only
Wabash
276
WABASH MINE HOLDING COMPANY
IL-DNR Refuse Area
Reclaim Only
Wabash
290
WABASH MINE HOLDING COMPANY
IL-DNR Shaft 5
Reclaim Only
Wabash
158
WABASH MINE HOLDING COMPANY
IL-DNR Rokdust Site
Reclaim Only
Wabash
Prospect
WABASH MINE HOLDING COMPANY
 
Reclaim Only
Wabash
298
WABASH MINE HOLDING COMPANY
IL-DNR Rockdust Site
Reclaim Only



    


Exhibit 2

[Reclamation Funding Agreement]



    


RECLAMATION FUNDING AGREEMENT
THIS AGREEMENT (as it may be amended or modified from time to time, this " Reclamation Funding Agreement ") is made and entered into as of July 12, 2016, by and among: Alpha Natural Resources, Inc. (" ANR "), on behalf of itself and its debtor-affiliates (collectively with ANR, the " Debtors " or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the " Reorganized Debtors "); Contura Energy, Inc. (the " Purchaser "); the Illinois Department of Natural Resources; the Kentucky Energy and Environment Cabinet, Department for Natural Resources; the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee (" OSMRE "); the Virginia Department of Mines, Minerals and Energy; and the West Virginia Department of Environmental Protection (collectively, the " Regulatory Authorities " and, together with the Debtors and the Purchaser, the " Parties ").
WHEREAS , on August 3, 2015 (the " Petition Date "), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the " Bankruptcy Code ") in the United States Bankruptcy Court for the Eastern District of Virginia (the " Bankruptcy Court "), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the " Chapter 11 Cases ");
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the " Plan "), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Regulatory Authorities have issued certain permits (collectively, the " Permits ") to the Debtors in connection with the Debtors' operation and reclamation of certain mines and facilities within their respective states or commonwealths (collectively, the " States ");
WHEREAS , the Debtors entered into a transaction (the " Sale Transaction ") pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith), with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date providing for (a) the sale of certain of the Debtors' assets to the Purchaser, (b) the assumption of certain of the Debtors' liabilities by the Purchaser (c) the transfer of certain of the Permits (collectively, the " Transferred Permits ") to the Purchaser and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors' assets that are not sold pursuant to the Sale Transaction (collectively, the " Retained Assets ");
WHEREAS , a primary purpose of the Reorganized Debtors will be to hold and satisfy their obligations under the Permits associated with the Retained Assets (collectively, the " Retained Permits ") and to complete all reclamation requirements of the Permits associated with


    


the Retained Assets including the management of reclamation activities at certain sites with only reclamation activities to be completed (collectively, the " Reclaim-Only Sites ");
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Retained Permits associated with a Reclaim-Only Site by State;
WHEREAS , contemporaneously herewith the Debtors and the Purchaser together have entered into separate settlement agreements (collectively, the " State Settlement Agreements ") with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration and water treatment (including long term water treatment) in their respective States in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq . (" SMCRA "), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the " Mining Laws ") on Mining Complexes operated under Permits previously issued to ANR and its subsidiaries;
WHEREAS , contemporaneously herewith the Debtors, the Purchaser and Citicorp North America, Inc. (the " First Lien Agent ") have entered into that certain Stipulation Regarding Water Treatment Obligations (the " Water Treatment Stipulation ") with the Environmental Protection Agency (" EPA ") to define the framework and funding for the fulfillment of the Reorganized Debtors' and the Purchaser's obligations under the EPA Consent Decree (as defined in the Water Treatment Stipulation) and the Reorganized Debtors' other water treatment obligations;
WHEREAS , the Parties desire to enter into this Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation and water treatment (including long-term water treatment) and management work to be done on the Reclaim-Only Sites; and
WHEREAS , the terms of this Reclamation Funding Agreement are incorporated into the Plan, and the Parties intend that this Reclamation Funding Agreement and the related State Settlement Agreements shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing, the execution by each of the Regulatory Authorities of their respective State Settlement Agreements and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Definitions . Capitalized terms used but not defined herein shall have the meanings ascribed them in the Plan. In addition to the terms defined above, the following terms have the following meanings herein:
(a)      " Effective Date " means the date upon which the Plan shall become effective in accordance with its terms.
(b)      " Free Cash Flow " means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and

24
    


amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors' net working capital, minus capital expenditures, measured for any Quarterly Period.
(c)      " Funding Threshold Amount " means the funded amount of a State's Restricted Cash Reclamation Account that is equal to 125% of the remaining Total Cost of Reclamation in that State.
(d)      " Fully Reclaim, " " Fully Reclaimed " or " Full Reclamation " means, as to any or all Retained Permits, the completion of reclamation, as provided for by the applicable Mining Laws.
(e)      " Restricted Cash Reclamation Accounts " means a separate interest bearing segregated deposit account for each of the Regulatory Authorities established pursuant to the applicable State Settlement Agreement in which account such Regulatory Authority shall hold a first priority security interest, perfected by "control" under the applicable Uniform Commercial Code.
(f)      " Total Cost of Reclamation " means the estimate of the total cost of reclamation, mitigation, the calculated net present value of the cost of water treatment for the period of time specified by the Regulatory Authority’s standards for long-term water treatment and management associated with the Reorganized Debtors' mining operations. For the avoidance of doubt, the Reorganized Debtors' proposed Total Cost of Reclamation for Retained Permits in each State shall be reviewed by each applicable Regulatory Authority for completeness and reasonableness of approach.
2.      Funding of the Restricted Cash Reclamation Accounts by the Purchaser .
(a)      Periodic Payments . In accordance with the allocations determined pursuant to Section 5 hereof, the Purchaser shall pay the aggregate amount of $50,000,000 into the various Restricted Cash Reclamation Accounts as follows:
(i)      $8,000,000 immediately upon the Effective Date;
(ii)      $10,000,000 on the anniversary of the Effective Date in each of 2017, 2018, and 2019; and
(iii)    $12,000,000 on the anniversary of the Effective Date in 2020.
(b)      Contingent Payment Obligation . In addition to the amounts paid pursuant to Section 2(a) hereof, and in accordance with the allocations set forth in Section 5 hereof, the Purchaser shall pay up to an aggregate amount of $50,000,000 (the " Contingent Payment Obligation Cap ") into the various Restricted Cash Reclamation Accounts as a contingent payment obligation from 2021 through 2025 (the " Contingent Payment Obligation ").

25
    


(i)      The Purchaser shall make Contingent Payment Obligation contributions into the Restricted Cash Reclamation Accounts up to the Contingent Payment Obligation Cap only in the following circumstances:
(1)      If and to the extent that the Reorganized Debtors do not contribute $50,000,000 of Free Cash Flow into the Restricted Cash Reclamation Accounts through December 31, 2020 as set forth in Section 4(b) hereof; and
(2)      If the Reorganized Debtors make any Reorganized ANR Contingent Revenue Payment (as such term is defined in the Plan) that reduces the amount of Free Cash Flow that the Reorganized Debtors otherwise would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment, then a Contingent Payment Obligation will be payable in the amount of the difference between (A) the amount of Free Cash Flow that the Reorganized Debtors would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment and (B) the amount of Free Cash Flow actually contributed.
(ii)      For the avoidance of doubt, the Purchaser's obligations under Section 2(b)(i) hereof shall be cumulative up to the amount of the Contingent Payment Obligation Cap.
(iii)    The Purchaser shall make any Contingent Payment Obligation contributions up to the Contingent Payment Obligation Cap according to the following schedule, solely to the extent due and payable as of the applicable payment date in accordance with Section 2(b)(i) hereof:
(1)      $10,000,000 on the anniversary of the Effective Date in each of 2021, 2022, 2023 and 2024; and
(2)      The difference between any Contingent Payment Obligation contributions made and the Contingent Payment Obligation Cap on the anniversary of the Effective Date in 2025.
(c)      Parent Guaranty . The Purchaser's obligations under this Section 2 shall be guaranteed by its parent, if any.
3.      Limitations on Certain Transactions by the Purchaser . The Purchaser agrees that, for five years after the Effective Date, it will not sell all or substantially all of its assets unless either:
(a)      the purchaser(s) of such assets agree(s) to assume the liabilities of the Purchaser under this Reclamation Funding Agreement; or

26
    


(b)      such liabilities are otherwise satisfied or funded.
4.      Funding of the Restricted Cash Reclamation
Accounts by the Reorganized Debtors .
(a)      Periodic Payments.
(i)      In accordance with the allocations determined in accordance with Section 5 hereof, the Reorganized Debtors shall pay and deposit the aggregate amount of $109,000,000 into the various Restricted Cash Reclamation Accounts through 2025.
(ii)      Such payments shall be made in the following aggregate amounts: $5,000,000 in 2016, $10,000,000 in each of 2017 and 2018 and $12,000,000 in each year from 2019 through 2025.
(iii)    All such payments shall be made in equal monthly installments in the year in which they are due. The Reorganized Debtors shall make the first payment on or before August 31, 2016 and the remaining payments on or before the last day of each subsequent month through December 2025.
(b)      Excess Cash Flow Payments .
(i)      In addition to the amounts to be paid pursuant to Section 4(a) above, and in accordance with the allocations determined pursuant to Section 5 hereof, the Reorganized Debtors shall pay and deposit 50% of the Free Cash Flow that they generate into the Restricted Cash Reclamation Accounts. Such payments are over and above the amounts required to be paid in Section 4(a) above.
(ii)      Such payments of Free Cash Flow shall be made with respect to each State until either: (1) all Reclaim-Only sites have been Fully Reclaimed and any long-term water treatment or water management obligations in such State are fully funded and have been covered by a method approved by the regulator for the applicable State (such as a long-term water treatment trust); or (2) the Funding Threshold Amount has been reached with respect to each State, it being understood that once the Funding Threshold Amount for a State has been reached, (A) the Free Cash Flow contribution obligation to the Restricted Cash Reclamation Account for the applicable State shall be reduced to an amount necessary to maintain such Funding Threshold Amount, until such time as all Reclaim-Only Sites have been Fully Reclaimed and (B) the remaining portion of the Free Cash Flow contribution shall be deposited into the Restricted Cash Reclamation Accounts of the remaining States in accordance with the allocations determined pursuant to Section 5 hereof, as adjusted.

27
    


(iii)    The Free Cash Flow contributions required under this Section shall be paid within 30 days after each calendar quarter end, subject to reconciliation on an annual basis.
(c)      Surety Collateral Returns .
(i)      Any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer that has issued bonds in only one State will be paid into the Restricted Cash Reclamation Account of that State or otherwise dealt with in accordance with any applicable agreement among the Reorganized Debtors and such State.
(ii)      To the extent any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer whose bonds relate to permits in multiple States, such collateral shall be contributed to the Restricted Cash Reclamation Accounts for the applicable States: (1) in proportion to the dollar amounts of the bonds versus the amount of the collateral until the amount for any such State exceeds its Funding Threshold Amount; and (2) then to the other States in accordance with the allocations set forth in Section 5 hereof, as adjusted.
(d)      In the event of a merger or sale of all or substantially all of the assets of the Reorganized Debtors, then all of the Reorganized Debtors' obligations under Sections 4(a) above and 6(c) below shall either (i) be accelerated and paid in full on a net present value basis into the applicable Restricted Cash Reclamation Accounts or (ii) be assumed by the purchaser or surviving entity, before or at the closing of such transaction; provided , however , that the Restructuring Transactions, including, without limitation, the NewCo Asset Sale, shall not be deemed to be mergers or sales within the meaning of this Section 4(d). For the avoidance of doubt, nothing in this Section 4(d) shall:
(i)      limit or interfere with any Regulatory Authority's exercise of discretion with respect to approving any permit transfer or other required regulatory approval; or
(ii)      alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
5.      Allocation of Periodic Contributions .
(a)      Periodic contributions required under Sections 2 and 4 (collectively, the " Periodic Contributions ") shall be allocated to the applicable States as set forth in this Section 5 .

28
    


(b)      For the years 2016 through 2018, the Periodic Contributions shall be allocated among the various Restricted Cash Reclamation Accounts based upon the Debtors' current relative asset retirement obligations in each State, as follows: 83% for West Virginia; 11.25% for Kentucky; 4% for Virginia; 1% for Illinois; and 0.75% for Tennessee.
(c)      Within 90 days of the Effective Date, the Reorganized Debtors shall begin an evaluation of all of their Permits and shall develop a Total Cost of Reclamation for each State. Such evaluation may be the same as any asset retirement obligation analysis previously undertaken by the Debtors. A preliminary Total Cost of Reclamation for each State shall be developed by July 1, 2017 and provided to each of the States at that time for their review and comment. A final Total Cost of Reclamation shall be provided to each of the States for their review and comment by July 1, 2018.
(d)      The allocation of Periodic Contributions to the Restricted Cash Reclamation Accounts shall be reassessed and adjusted bi-annually beginning on January 1, 2019 based upon the Total Cost of Reclamation in each of the States as of July 1, 2018, and the Periodic Contributions required under Sections 2 and 4 shall be made to the various Restricted Cash Reclamation Accounts in accordance with such adjusted allocations.
(e)      In the event that the Regulatory Authorities are unable to agree on adjusted allocations based upon the Total Cost of Reclamation, the allocations in Section 5(b) above shall continue to apply.
(f)      With respect to Tennessee, once the Reclamation Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s Restricted Cash Reclamation Account, as well as future periodic contributions to such account, shall be paid into the Reclamation Trust.
6.      Funding of the Reorganized Debtors' Water Treatment Obligations Pursuant to the Water Treatment Stipulation
(a)      Pursuant to the Water Treatment Stipulation, the Reorganized Debtors will provide EPA and the Regulatory Authorities for the States in which their water treatment occurs (i) an annual summary of the expenditures on their water treatment for the previous year, (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Reorganized Debtors will provide EPA with copies of any budgets delivered to the Regulatory Authorities in accordance with the terms of the State Settlement Agreements.
(b)      The First Lien Lender Contribution

29
    


(i)      Pursuant to the Water Treatment Stipulation, on the Effective Date, the Reorganized Debtors, with the consent of the First Lien Lenders, shall pay from the First Lien Lenders' collateral an additional $5 million to support the Reorganized Debtors' compliance with their water treatment obligations (the " First Lien Lender Contribution ").
(ii)      The First Lien Lender Contribution will be allocated equally among the States to be used for water treatment and other approved projects to improve water quality.
(iii)    On or prior to the Effective Date, the Reorganized Debtors shall create either of the following accounts (in either case, a " Water Treatment Restricted Cash Account ") with respect to each State to receive such State's share of the First Lien Lender Contribution: (1) a segregated subaccount within the each State's Restricted Cash Reclamation Account (as defined in the applicable State Settlement Agreement); or (2) a separate segregated restricted cash account. With respect to Tennessee, once the Water Treatment Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s Water Treatment Restricted Cash Account, as well as future periodic contributions to such account, shall be placed into the Tennessee Water Treatment Trust until the trust is fully funded as determined by OSMRE.
(c)      The Reorganized Debtor Contribution
(i)      Pursuant to the Water Treatment Stipulation, the Reorganized Debtors shall contribute $15 million into the Water Treatment Restricted Cash Accounts from 2017 through 2023 (the " Reorganized Debtor Contribution ") to fund compliance with their water treatment obligations, including their obligations under the EPA Consent Decree.
(ii)      The Reorganized Debtor Contribution shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on July 1, 2017:
Year
Payment Dates
Aggregate Annual
Payment Amount
2017
July 1, October 1

$1,000,000

2018
January1, April 1, July 1, October 1

$1,500,000

2019
January1, April 1, July 1, October 1

$2,500,000

2020
January1, April 1, July 1, October 1

$2,500,000

2021
January1, April 1, July 1, October 1

$2,500,000

2022
January1, April 1, July 1, October 1

$2,500,000

2023
January1, April 1, July 1, October 1

$2,500,000

Total
 

$15,000,000



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(iii)    The Reorganized Debtor Contribution for 2017 shall be divided equally among the States. Thereafter, (x) the Reorganized Debtors shall provide 20% of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust (as defined in the Water Treatment Stipulation) until such requirement is terminated pursuant to subparagraph (iv) below and (y) the remainder of the annual Reorganized Debtor Contribution shall be divided among the other States according to the percentage of actual expenditures on water treatment in each State; provided that, each State shall receive a minimum of at least $25,000 each year. The Reorganized Debtors will track their spending on water treatment in each State and submit a report to the applicable Regulatory Authority and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year.
(iv)    Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent Reorganized Debtor Contribution amounts shall be allocated among the other States in accordance with Section 6(c)(iii)(y) hereof.
(d)      (d) The Reorganized Debtors will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the " Minimum Balance ") that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Reorganized Debtors and the applicable Regulatory Authority on an annual basis; provided that, nothing herein requires the Reorganized Debtors to designate more than $1,000,000 as the aggregate amount of Minimum Balances among the Water Treatment Restricted Cash Accounts in 2016. The Reorganized Debtors shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.
(e)      Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the State Settlement Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the State Settlement Agreements. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f)      For the avoidance of doubt, the funding to be provided to the Water Treatment Restricted Cash Accounts pursuant to the Water Treatment Stipulation or to the Restricted Cash Reclamation Accounts pursuant to this Reclamation Funding Agreement

31
    


shall be used solely to fund the Reorganized Debtors' obligations thereunder and shall not be used to assist or subsidize the Purchaser's compliance.
7.      Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Reclamation Funding Agreement:
(a)      The Debtors and the Purchaser shall have executed a State Settlement Agreement with the applicable Regulatory Authority with respect to each State;
(b)      This Reclamation Funding Agreement, the Water Treatment Stipulation and the State Settlement Agreements shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(c)      The Plan, as it may be amended consistent with the terms of this Reclamation Funding Agreement and the State Settlement Agreements, shall be confirmed on or before July 15, 2016;
(d)      The Effective Date shall occur on or before July 31, 2016;
(e)      There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First-Lien Lenders, the Second-Lien Lenders and the Unsecured Creditors Committee as filed with the Bankruptcy Court prior to May 25, 2016;
(f)      There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and
(g)      There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.
8.      Reclamation Funding Agreement and the Plan . In the event of a conflict between the terms of this Reclamation Funding Agreement and the Plan, this Reclamation Funding Agreement shall control.
9.      Covenants, Cooperation and Good Faith Efforts . The Parties agree to cooperate and work in good faith with each other to obtain a consensus as to the Total Cost of Reclamation and the allocation of Periodic Contributions as set forth in Section 5 hereof.
10.      Successors and Assigns . The provisions of this Reclamation Funding Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code, and shall inure to the benefit of the Parties and their successors and assigns.
11.      Entire Agreement . This Reclamation Funding Agreement, together with the State Settlement Agreements with respect to each State, constitutes the entire agreement and

32
    


understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein.
12.      Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Reclamation Funding Agreement, and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) the execution, delivery and performance by it of this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Reclamation Funding Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Reclamation Funding Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Reclamation Funding Agreement; and (d) the execution, delivery and performance by it (when such performance is due) of this Reclamation Funding Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to the Regulatory Authorities, the undersigned represents and warrants that he/she has authority to enter into this Reclamation Funding Agreement.
13.      No Reliance . Each Party represents and warrants that in entering into this Reclamation Funding Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Reclamation Funding Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
14.      Modification or Amendment . This Reclamation Funding Agreement may be modified or amended only by written agreement executed by each of the Parties.
15.      Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Reclamation Funding Agreement, and to consummate the transactions contemplated hereby and thereby.
16.      Construction . This Reclamation Funding Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this

33
    


Reclamation Funding Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Reclamation Funding Agreement were negotiated at arms'-length, and this Reclamation Funding Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.
17.
Headings . Titles and headings in this Reclamation Funding Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Reclamation Funding Agreement.
18.
Execution in Counterpart . This Reclamation Funding Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Reclamation Funding Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.
19.
Severability . If any provision of this Reclamation Funding Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
( Remainder of Page Intentionally Blank; Signatures to Follow )


34
    


IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
/S/ Kristin A. Boggs
 
 
By:
Kristin A. Boggs
 
By:
 
Its:
General Counsel
 
Its:
 

ILLINOIS DEPARTMENT
OF NATURAL RESOURCES
 
By:
 
Its:
 



    



IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT
OF NATURAL RESOURCES
/s James Hafliger
By:
James Hafliger
Its:
Office of Mines and Minerals Director


36
    



IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
/s/ Allen Guttrell
By:
 
 
By:
Allen Guttrell
Its:
 
 
Its:
Commissioner

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT
OF NATURAL RESOURCES
 
By:
 
Its:
 


37
    



IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
/s/ Joseph G. Pizarchik
By:
 
 
By:
Joseph G. Pizarchik
Its:
 
 
Its:
Director

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT
OF NATURAL RESOURCES
 
By:
 
Its:
 


38
    



IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.

ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
/s/ John W. Warren
By:
 
 
By:
John W. Warren
Its:
 
 
Its:
Director

ILLINOIS DEPARTMENT
OF NATURAL RESOURCES
 
By:
 
Its:
 


39
    


Exhibit 1

[Schedule of Retained Permits]



    


RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE
COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
S502393
BANDMILL COAL CORPORATION
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S505389
HIGHLAND MINING COMPANY
WV
Bandmill
S505489
HIGHLAND MINING COMPANY
WV
Bandmill
WV1016938
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O504286
TRACE CREEK COAL COMPANY
WV
Bandmill
O504691
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
S504186
TRACE CREEK COAL COMPANY
WV
Bandmill
S506288
TRACE CREEK COAL COMPANY
WV
Bandmill
S505389
ALEX ENERGY, INC.
WV
Bandmill
D001982
ARACOMA COAL COMPANY, INC.
WV
Bandmill
U500500
ARACOMA COAL COMPANY, INC.
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
O005082
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
U021383
BANDMILL COAL CORPORATION
WV
Bandmill
O501104
HIGHLAND MINING COMPANY
WV
Bandmill
P501114
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV

1
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
S503408
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
S508486
HIGHLAND MINING COMPANY
WV
Bandmill
U009283
RUM CREEK COAL SALES, INC.
WV
Bandmill
S500104
RUM CREEK COAL SALES, INC.
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503897
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O002685
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O500788
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O502386
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O504191
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
505088
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S401395
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S504988
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500498
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500590
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503592
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503792
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U504491
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S400400
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501307
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S502099
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501608
PREMIUM ENERGY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U007584
RIVERSIDE ENERGY COMPANY, LLC
WV
Cucumber
U402387
RIVERSIDE ENERGY COMPANY, LLC
WV
Delbarton
P502112
DELBARTON MINING COMPANY
WV
Elk Run
O506086
EAGLE ENERGY INC.
WV
Elk Run
O004383
EAGLE ENERGY INC.
WV
Elk Run
Prospect
ELK RUN COAL COMPANY, INC.
WV
Elk Run
U066300
ELK RUN COAL COMPANY, INC.
WV
Elk Run
P502213
PERFORMANCE COAL COMPANY
WV
Elk Run
P300114
PERFORMANCE COAL COMPANY
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H052900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H056200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200301
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200787
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S102690
BROOKS RUN MINING COMPANY, LLC
WV

2
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Erbacon
S200205
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200401
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200493
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200593
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200609
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P052600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P201414
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P202014
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
R062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S007185
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U102691
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201005
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201400
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201689
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
UO35900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D000782
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011082
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
I048200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P203507
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200310
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200487
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201498
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U307186
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D004781
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H047100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U101991
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011382
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
R067300
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
O100898
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100893
KINGWOOD MINING COMPANY, LLC
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV

3
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
U301799
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
U301406
MARFORK COAL COMPANY, INC.
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
P064200
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
R067100
GREEN VALLEY COAL COMPANY
WV
Green Valley
U306686
GREEN VALLEY COAL COMPANY
WV
Green Valley
H035600
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
R069000
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
U300409
GREEN VALLEY COAL COMPANY
WV
Green Valley
U302912
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U301407
GREEN VALLEY COAL COMPANY
WV
Inman Admiral
D010182
BLACK CASTLE MINING COMPANY
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S601189
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S501400
INDEPENDENCE COAL COMPANY, INC.
WV
Inman Admiral
O509588
OMAR MINING COMPANY
WV
Inman Admiral
S007076
OMAR MINING COMPANY
WV

4
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Inman Admiral
U040300
OMAR MINING COMPANY
WV
Kepler
R063000
DUCHESS COAL COMPANY
WV
Kepler
D006982
BIG BEAR MINING COMPANY
WV
Kepler
O010783
BIG BEAR MINING COMPANY
WV
Kepler
O017483
BIG BEAR MINING COMPANY
WV
Kepler
U058900
BIG BEAR MINING COMPANY
WV
Kepler
O005983
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
O007882
HERNDON PROCESSING COPANY, LLC
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400896
PAYNTER BRANCH MINING, INC.
WV
Kepler
S401298
PAYNTER BRANCH MINING, INC.
WV
Kepler
U503496
PIONEER MINING, INC.
WV
Kepler
U503596
PIONEER MINING, INC.
WV
Kepler
NPDES WV 1012207
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U047100
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U402195
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400196
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400295
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400595
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400695
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400697
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400901
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401100
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401300
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401497
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401200
RIVERSIDE ENERGY COMPANY, LLC
WV
Kingston
P300115
KINGSTON MINING, INC.
WV
Kingston
 
KINGSTON MINING, INC.
WV
Kingston
P301012
KINGSTON RESOURCES, INC.
WV
Kingston
P301413
KINGSTON RESOURCES,INC.
WV
Kingston
Prospect No. 9
KINGSTON RESOURCES, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501887
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501992
OMAR MINING COMPANY
WV
Liberty
U002685
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501106
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV

5
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500594
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501398
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U502191
OMAR MINING COMPANY
WV
Liberty
U501892
OMAR MINING COMPANY
WV
Litwar
P402708
BROOKS RUN MINING COMPANY, LLC
WV
Litwar
O011783
LITWAR PROCESSIG COMPANY, LLC
WV
Litwar
O007583
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
P300514
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
U400102
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014483
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014883
RIVERSIDE ENERGY COMPANY, LLC
WV
Mammoth
P302013
ALEX ENERGY, INC.
WV
Mammoth
P303212
ALEX ENERGY, INC.
WV
Mammoth
P304412
ALEX ENERGY, INC.
WV
Mammoth
S004577
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007085
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008379
JACKS BRANCH COAL COMPANY
WV
Mammoth
S301491
JACKS BRANCH COAL COMPANY
WV
Mammoth
S393790
JACKS BRANCH COAL COMPANY
WV
Mammoth
S600886
JACKS BRANCH COAL COMPANY
WV
Mammoth
U005584
JACKS BRANCH COAL COMPANY
WV
Mammoth
U300990
JACKS BRANCH COAL COMPANY
WV
Mammoth
U302200
JACKS BRANCH COAL COMPANY
WV
Mammoth
U601889
JACKS BRANCH COAL COMPANY
WV
Mammoth
S000684
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007885
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008883
JACKS BRANCH COAL COMPANY
WV
Mammoth
Z000481
JACKS BRANCH COAL COMPANY
WV
Mammoth
U045400
JACKS BRANCH COAL COMPANY
WV
Mammoth
U301500
JACKS BRANCH COAL COMPANY
WV
Mammoth
E010300
KANAWHA ENERGY COMPANY
WV
Mammoth
E011000
KANAWHA ENERGY COMPANY
WV
Mammoth
O304391
KANAWHA ENERGY COMPANY
WV
Mammoth
P071300
KANAWHA ENERGY COMPANY
WV
Mammoth
P303611
KANAWHA ENERGY COMPANY
WV
Mammoth
R064900
KANAWHA ENERGY COMPANY
WV
Mammoth
S300691
KANAWHA ENERGY COMPANY
WV

6
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Mammoth
S304589
KANAWHA ENERGY COMPANY
WV
Mammoth
S600988
KANAWHA ENERGY COMPANY
WV
Mammoth
S602389
KANAWHA ENERGY COMPANY
WV
Mammoth
U300904
KANAWHA ENERGY COMPANY
WV
Mammoth
U301290
KANAWHA ENERGY COMPANY
WV
Mammoth
P300205
KANAWHA ENERGY COMPANY
WV
Mammoth
P301111
KANAWHA ENERGY COMPANY
WV
Mammoth
P303310
KANAWHA ENERGY COMPANY
WV
Mammoth
P303511
KANAWHA ENERGY COMPANY
WV
Mammoth
S303390
KANAWHA ENERGY COMPANY
WV
Mammoth
O311907
KANAWHA ENERGY COMPANY
WV
Mammoth
U300504
KANAWHA ENERGY COMPANY
WV
Mammoth
U300896
KANAWHA ENERGY COMPANY
WV
Mammoth
U302099
KANAWHA ENERGY COMPANY
WV
Marfork
 
BOONE EAST DEVELOPMENT CO.
WV
Marfork
P300515
MARFOLK COALCOMPANY, INC.
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
D004081
CLEAR FORK COAL COMPANY
WV
Marfork
S014278
CLEAR FORK COAL COMPANY
WV
Marfork
U008383
CLEAR FORK COAL COMPANY
WV
Marfork
U013000
CLEAR FORK COAL COMPANU
WV
Marfork
P500213
ELK RUN COAL COMPANY, INC.
WV
Marfork
P300415
KINGSTON MINING, INC.
WV
Marfork
P301513
MARFORK COAL COMPANY, INC.
WV
Marfork
Pending
MARFORK COAL COMPANY, INC.
WV
Marfork
U301394
MARFORK COAL COMPANY, INC.
WV
Marfork
P301011
MARFORK COAL COMPANY, INC.
WV
Marfork
S300809
MARFORK COAL COMPANY, INC.
WV
Marfork
E003800
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
S011977
PIONEER FUEL CORPORATION
WV
Marfork
S400596
PIONEER FUEL CORPORATION
WV
Marfork
S401595
PIONEER FUEL CORPORATION
WV
Marfork
O400708
PIONEER FUEL CORPORATION
WV
Martin County
E001700
GREYEAGLE COAL COMPANY
WV
Martin County
O013983
GREYEAGLE COAL COMPANY
WV
Nicholas
S005183
ALEX ENERGY, INC.
WV
Nicholas
S300199
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV

7
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S006385
ALEX ENERGY, INC.
WV
Nicholas
U302494
POWER MOUNTAIN COAL COMPANY
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S300907
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
S302003
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S301192
ALEX ENERGY, INC.
WV
Nicholas
S301806
ALEX ENERGY, INC.
WV
Nicholas
H015500
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O002184
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O004183
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300293
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300589
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O301286
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O302093
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S300590
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U300489
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U302194
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O010983
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S008776
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U026900
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U045800
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U065700
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U067600
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300895
POWER MOUNTAIN COAL COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rawl
D003181
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O507892
RAWL SALES & PROCESSING COMPANY
WV

8
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Rawl
U066700
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U507192
RAWL SALES & PROCESSING COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O504989
RAWL SALES & PROCESSING COMPANY
WV
Rawl
P057200
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rockspring
Prospect
LAUREL CREEK CO., INC.
WV
Rockspring
U500601
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507292
ARACOMA COAL COMPANY, INC.
WV
Rockspring
S504689
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O501090
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507692
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U500304
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U501091
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U502006
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O505491
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
U002584
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
P501014
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
Pending
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
503290
ROCKSPRING DEVELOPMENT, INC.
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC.
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC.
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
U501087
STIRRAT COAL COMPANY
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV

9
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502408
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U301695
PERFORMANCE COAL COMPANY
WV
Twilight
U501295
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
O501496
ELK RUN COAL COMPANY
WV
Twilight
O507891
ELK RUN COAL COMPANY
WV
Twilight
U501198
ELK RUN COAL COMPANY
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S500398
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502396
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U502196
INDEPENDENCE COAL COMPANY, INC.
WV
Twin Star
S401197
TWIN STAR MINING, INC. – WV
WV
Unassigned
P500612
INDEPENDENCE COAL COMPANY, INC.
WV
White Flame
S501501
WHITE FLAME ENERGY, INC.
WV
White Flame
S502097
WHITE FLAME ENERGY, INC.
WV
Wabash
39
WABASH MINE HOLDING COMPANY
IL
Wabash
276
WABASH MINE HOLDING COMPANY
IL
Wabash
290
WABASH MINE HOLDING COMPANY
IL
Wabash
158
WABASH MINE HOLDING COMPANY
IL
Wabash
Prospect
WABASH MINE HOLDING COMPANY
IL
Wabash
298
WABASH MINE HOLDING COMPANY
IL
Coalgood
8480322
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480324
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480325
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485533
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487037
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487038
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487039
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488083
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488084
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489031
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489032
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
6805012
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800014
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800062
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800207
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805179
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805182
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805188
PETER CAVE MINING COMPANY
KY
Martin County
8805189
PETER CAVE MINING COMPANY
KY

10
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Martin County
8805190
PETER CAVE MINING COMPANY
KY
Martin County
8807000
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807002
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808008
PETER CAVE MINING COMPANY
KY
Martin County
8808015
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808016
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808017
PETER CAVE MINING COMPANY
KY
Roxana
8675269
ENTERPRISE MINING COAL COMPANY
KY
Sidney
2985329
ISLAND CREEK COAL COMPANY
KY
Sidney
2985332
ISLAND CREEK COAL COMPANY
KY
Sidney
8365601
BELFRY COAL CORPORATION
KY
Sidney
8585079
BELFRY COAL CORPORATION
KY
Sidney
8980573
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984146
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984399
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984400
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984424
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984430
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8985167
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985736
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985742
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985977
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985986
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987025
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987094
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8988168
LONG FORK COAL COMPANY
KY
Sidney
8988170
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989156
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989159
LONG FORK COAL COMPANY
KY
Coalgood
8485532
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485535
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
8805187
MARTIN COUNTY COAL CORPORATION
KY
Roxana
8675272
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675279
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675280
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675282
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
8984029
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984194
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984431
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8984433
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8984434
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8984435
ROAD FORK DEVELOPMENT COMPANY, INC.
KY

11
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Sidney
8984436
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8984496
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985739
SIDNEY COAL COMPANY, INC.
KY
Martin County
8805175
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805186
MARTIN COUNTY COAL CORPORATION
KY
Sidney
8980835
SIDNEY COAL COMPANY, INC.
KY
Sidney
8980932
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984095
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987082
SIDNEY COAL COMPANY, INC.
KY
Coalgood
8485536
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
8800215
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805147
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805180
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807001
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808010
MARTIN COUNTY COAL CORPORATION
KY
Rawl
8984439
NEW RIDGE MINING COMPANY
KY
Roxana
8675268
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675278
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675283
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
4985319
ISLAND CREEK COAL COMPANY
KY
Sidney
6985333
ISLAND CREEK COAL COMPANY
KY
Sidney
8980639
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8980914
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8980915
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8980947
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984223
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984418
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984432
ROAD FORK DEVELOPMENT COMPANY, INC.
KY
Sidney
8984437
LONG FORK COAL COMPANY
KY
Sidney
8985579
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985646
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985647
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985649
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985735
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985745
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985746
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985751
SIDNEY COAL COMPANY, INC.
KY
Twin Star
1101960
TWIN STAR MINING, INC.
VA
Twin Star
1101961
TWIN STAR MINING, INC.
VA
Twin Star
1101966
TWIN STAR MINING, INC.
VA
Twin Star
1101967
TWIN STAR MINING, INC.
VA
Twin Star
1101968
TWIN STAR MINING, INC.
VA

12
    
RETAINED PERMITS FOR RECLAIM ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Twin Star
1101981
TWIN STAR MINING, INC.
VA
Twin Star
1201969
TWIN STAR MINING, INC.
VA
Twin Star
1201970
TWIN STAR MINING, INC.
VA
Twin Star
1201973
TWIN STAR MINING, INC.
VA
Twin Star
1301956
TWIN STAR MINING, INC.
VA
Twin Star
1301962
TWIN STAR MINING, INC.
VA
Twin Star
1801971
TWIN STAR MINING, INC.
VA
TCC
2475
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2904
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2885
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2664
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2957
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2982
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2725
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2710
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2882297
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82144
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2282293
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82201
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82077
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2883130
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2283116
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82191
TENNESSEE CONSOLIDATED COAL CO.
TN


13
    
Exhibit 10.17

FIRST AMENDMENT TO PERMITTING AND RECLAMATION PLAN SETTLEMENT AGREEMENT FOR THE STATE OF ILLINOIS

THIS AMENDMENT (this “First Amendment”) is made and entered into this 23 rd of October, 2017 (the “Effective Date”), by and among Alpha Natural Resources, Inc. (“ANR”), on behalf of itself and its affiliates, Contura Energy, Inc. (“Contura”) and Illinois Department of Natural Resources (the “Department” and collectively with ANR and Contura, the “Parties”);

WHEREAS , on July 12, 2016, the Parties entered into a Permitting and Reclamation Plan Settlement Agreement for the State of Illinois (the “Settlement Agreement”), attached hereto as Exhibit 1 , to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in Illinois on permits previously issued to ANR and its subsidiaries (the “Illinois Permits”) for the Wabash Mining Complex;

WHEREAS , the Settlement Agreement requires ANR to establish and fund restricted cash accounts (“Restricted Cash Accounts”) for the purpose of ensuring the mine land reclamation and environmental restoration required by the Settlement Agreement;

WHEREAS , on July 12, 2016, the Parties also entered into a Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation, water treatment and management work to be done on the Illinois Permits at the Wabash Mining Complex (the “Reclamation Funding Agreement”);

WHEREAS , ANR intends to sell the assets of the Wabash Mining Complex to a third-party buyer (“Purchaser”); and

WHEREAS, after review of complete and appropriate permit transfer applications by the Purchaser, the Department may transfer the Illinois Permits to the Purchaser; and

WHEREAS , ANR has increased its posted surety reclamation bonds required by the Illinois Permits to the full amount of $6,692,710 as requested by the Department.
 
NOW THEREFORE, in consideration of the foregoing, the Parties hereto agree as follows:

1. Further Effect of Settlement Agreement. The Settlement Agreement solely addresses the reclamation and restoration of the Illinois Permits, which are expected to be sold to Purchaser and subsequently transferred pursuant to complete and appropriate permit transfer applications. Until such time as the Illinois Permits transfer, the Settlement Agreement, as amended by this First Amendment shall remain in effect.

2. Termination of Settlement Agreement . Because the Settlement Agreement solely addresses the reclamation and restoration of the Illinois Permits, which permits are expected to be transferred to Purchaser after the completion of the appropriate permit transfer process, and therefore will no longer held by ANR, the Settlement Agreement, and any amendments thereto, shall automatically terminate upon the transfer of all Illinois Permits to Purchaser. For the avoidance of

- 1 -


doubt, the termination of the Settlement Agreement does not alter or affect the releases previously granted in Paragraph 8 of the Settlement Agreement.

3. Termination of Obligations Under Reclamation Funding Agreement . Because the Reclamation Funding Agreement solely requires the funding of reclamation on the Illinois Permits in the State of Illinois, and because the Illinois Permits will be transferred to Purchaser, the obligations of the Parties under the Reclamation Funding Agreement, as they relate to the Illinois Permits and the State of Illinois, should be and are hereby terminated; provided, however, that ANR shall keep the current amount of surety reclamation bonds ($6,692,710) in place and be responsible for water sampling and maintenance of the permits areas in compliance with all applicable regulatory requirements until the Illinois Permits are transferred to Purchaser as set forth herein. The Parties will cooperate with the other parties to the Reclamation Funding Agreement, including the Office of Surface Mining Reclamation and Enforcement, the Commonwealths of Kentucky and Virginia, and the State of West Virginia to amend the Reclamation Funding Agreement to reallocate funding thereunder.

4. Successors and Assigns. The provisions of this First Amendment shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.

5. Entire Agreement. This First Amendment, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.

6. Governing Law. This First Amendment shall be governed by and construed under the laws of the State of Illinois without regard for the conflict of laws provisions thereof.

7. Authority and Validity . Each Party otherwise represents, warrants and acknowledges that: (a) it has all the requisite authority to execute and deliver this First Amendment; (b) such Party's execution and delivery of, and performance under, this First Amendment and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this First Amendment or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this First Amendment has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this First Amendment; and (d) the execution, delivery and performance by such Party (when such performance is due) of this First Amendment does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.


- 2 -


8. No Reliance. Each Party represents and warrants that in entering into this First Amendment it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has Illinois to represent it in this matter. In entering into this First Amendment, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.

9. Modification or Amendment. This First Amendment may be modified or amended only by written agreement executed by each of the Parties.

10. Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this First Amendment and to consummate the transactions contemplated hereby and thereby.

11. Construction. This First Amendment has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this First Amendment so as to give rise to any presumption of convention regarding construction of this document. All terms of this First Amendment were negotiated at arms'-length, and this First Amendment was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.

12. Headings. Titles and headings in this First Amendment are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the First Amendment.

13. Execution in Counterpart. This First Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this First Amendment may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.

14. Severability. If any provision of this First Amendment is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.


(Remainder of Page Intentionally Blank; Signatures to Follow)


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IN WITNESS WHEREOF, the Parties hereto have executed this First Amendment as of the date set forth above.


ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its affiliates
 
ILLINOIS DEPARTMENT OF NATURAL
RESOURCES
 
 
 
 
 
 
/s/ Andrew B. McCallister
 
/s/ Thomas A. Benner
By: Andrew B. McCallister
 
By: Thomas A. Benner
Its: Senior Vice President, General Counsel and Secretary
 
Its: Director Office of Mines and Minerals
 
 
 
 
 
CONTURA ENERGY, INC.
 
 
 
 
 
 
 
 
/s/ Mark M. Manno
 
 
By: Mark M. Manno
 
 
Its: EVP, General Counsel, Secretary & CPO
 
 
 
 



[Signature Page for First Amendment to Permitting and Reclamation Plan
Settlement Agreement for the State of Illinois]



IN WITNESS WHEREOF, the Parties hereto have executed this First Amendment as of the date set forth above.


ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its affiliates
 
ILLINOIS DEPARTMENT OF NATURAL
RESOURCES
 
 
 
 
 
 
 
 
 
By:
 
By:
Its:
 
Its: Director
 
 
 
 
 
 
CONTURA ENERGY, INC.
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
Its:
 
 



[Signature Page for First Amendment to Permitting and Reclamation Plan
Settlement Agreement for the State of Illinois]



IN WITNESS WHEREOF, the Parties hereto have executed this First Amendment as of the date set forth above.


ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its affiliates
 
ILLINOIS DEPARTMENT OF NATURAL
RESOURCES
 
 
 
 
 
 
 
 
 
By:
 
By:
Its:
 
Its: Director
 
 
 
 
 
 
CONTURA ENERGY, INC.
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
Its:
 
 



[Signature Page for First Amendment to Permitting and Reclamation Plan
Settlement Agreement for the State of Illinois]



Exhibit 10.18
EXECUTION VERSION

PERMITTING AND RECLAMATION PLAN SETTLEMENT
AGREEMENT FOR THE COMMONWEALTH OF VIRGINIA
THIS AGREEMENT (as it may be amended or modified from time to time, this " Agreement ") is made and entered into as of July 12, 2016, by and among Alpha Natural Resources, Inc. (" ANR "), on behalf of itself and its debtor-affiliates (collectively with ANR, the " Debtors " or, when used in reference to such Debtors on or after the Effective Date (as defined herein, the " Reorganized Debtors "), Contura Energy, Inc. (the " Purchaser ") and the Commonwealth of Virginia, Department of Mines, Minerals and Energy (the " Department " and, collectively with the Debtors and the Purchaser, the " Parties ").
WHEREAS , on August 3, 2015 (the " Petition Date "), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the " Bankruptcy Code ") in the United States Bankruptcy Court for the Eastern District of Virginia (the " Bankruptcy Court "), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the " Chapter 11 Cases ");
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the " Plan "), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Department has issued certain permits to the Debtors (collectively, the " Virginia Permits ") in connection with the Debtors' operation and reclamation of certain mines and facilities (collectively, the " Mining Complexes ") within the Commonwealth of Virginia (the " Commonwealth ");
WHEREAS , the Debtors are in general compliance with, and are continuing to perform their ongoing reclamation obligations in accordance with, the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. (" SMCRA "), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the " Mining Laws ");
WHEREAS , the Debtors are parties to a transaction (the " Sale Transaction ") pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith) with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date (as it may be modified, supplemented or amended, the " APA ") providing for (a) the sale of certain of the Debtors' assets (collectively, the " Purchased Assets ") to the Purchaser, (b) the assumption of certain of the Debtors' liabilities by the Purchaser and (c) the transfer of certain permits, including certain of the Virginia Permits (collectively, the " Transferred Permits "), to the Purchaser and (d) certain transactions necessary to effectuate the foregoing;





WHEREAS , the Purchased Assets include certain of the Debtors' assets related to the McClure and Toms Creek Mining Complexes in the Commonwealth, among other assets;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors' coal mining assets that are not sold pursuant to the Sale Transaction (collectively, the " Retained Assets ");
WHEREAS , the Retained Assets include certain of the Debtors' assets related to the Twin Star Mining Complex, the majority of which is located in the Commonwealth, among other assets;
WHEREAS , the primary purpose of the Reorganized Debtors will be to hold the permits associated with the Retained Assets – including the Virginia Permits other than the Transferred Permits (collectively, the " Retained Permits ") – that have mining operations: (a) with only reclamation activities to be completed (collectively, the " Reclaim-Only Sites "), and to manage the reclamation activities at the Reclaim-Only Sites; and (b) where coal currently is being mined and is expected to be mined in the future (collectively, the " Active Sites " and together with the Reclaim-Only Sites, the " Mining Sites "), and to manage and/or operate the Active Sites;
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Retained Permits, all of which relate to the Twin Star Mining Complex, which is a Reclaim-Only Site;
WHEREAS , the Parties desire to enter into this Agreement to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in the Commonwealth in accordance with the Mining Laws on Mining Complexes operated under Retained Permits previously issued to ANR and its subsidiaries;
WHEREAS , the terms of this Agreement are incorporated into the Plan, and the Parties intend that this Agreement shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Plan. In addition to the terms defined elsewhere in this Agreement, the terms below have the following meanings herein:
(a)      " Affiliate " means "affiliate," as such term is defined in section 101 (2) of the Bankruptcy Code.

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(b)      " Applicant/Violator System " means (i) the nationwide database maintained by OSMRE of mine applicants, permittees, operators, application and permit records, as well as unabated or uncorrected environmental violations pursuant to SMCRA or (ii) the analogous database maintained by the Department pursuant to the Virginia Surface Coal Mining and Reclamation Act.
(c)      " Effective Date " means the date upon which the Plan shall become effective in accordance with its terms.
(d)      " Event of Default " has the meaning ascribed to it in Section 9(a) hereof.
(e)      " Financial Assurance " means a Surety Bond or any of the alternatives thereto provided for under Va. Code Ann. § 45.1-241.
(f)      " First Lien Lenders " has the meaning given such term in the Plan.
(g)      " Free Cash Flow " means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors' net working capital, minus capital expenditures, measured for any Quarterly Period.
(h)      " Fully Reclaim, " " Fully Reclaimed " or " Full Reclamation " means, as to any or all Retained Permits, completion of reclamation as provided for under applicable Mining Laws.
(i)      " Material Asset Sale " means a sale, in any single or related transaction, of Reorganized ANR assets, other than sales of coal in the ordinary course of business, generating $100,000 or more in net cash proceeds.
(j)      " OSMRE " means the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement.
(k)      " Quarterly Period " means a full calendar-year quarter ending each March 31, June 30, September 30 and December 31; provided , however, that the first Quarterly Period after the Effective Date shall be deemed to run from the Effective Date through September 30.
(l)      " Reclamation Funding Agreement " means the agreement, substantially in the form attached hereto as Exhibit 2 , by and among the Debtors, for and on behalf of themselves and the Reorganized Debtors, the Purchaser and the appropriate regulatory agencies of each of the States of Illinois, Tennessee (as administered by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia.

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(m)      " Restricted Cash Accounts " means, collectively, the Restricted Cash Reclamation Account and the Water Treatment Restricted Cash Account.
(n)      " Restricted Cash Reclamation Account " means an interest bearing segregated deposit account in which the Department shall hold a first priority security interest, perfected by "control" under the Virginia Uniform Commercial Code into which funds are deposited pursuant to Sections 2, 4 and 5 of the Reclamation Funding Agreement. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Restricted Cash Reclamation Account in overnight securities consistent with their cash management policy.
(o)      " Retained Bonds " means any reclamation bonds associated with the Retained Permits, as existing on the date hereof.
(p)      " Surety Bond " means a corporate surety bond issued in accordance with Va. Code Ann. § 45.1-241.
(q)      " Third Party Beneficiaries " means the First Lien Lenders, their officers, directors, employees and advisors, and each of their Affiliates, successors and assigns.
(r)      " Water Treatment Restricted Cash Account " has the meaning ascribed to it in the Reclamation Funding Agreement and in which the Department shall hold a first priority security interest, perfected by "control" under the Virginia Uniform Commercial Code. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Water Treatment Restricted Cash Account in overnight securities consistent with their cash management policy.
2.      Removal of Coal Incidental to Reclamation. Subject to the issuance of further orders of the Department, the Department agrees that the Reorganized Debtors may remove coal incidental to their reclamation activities at the Twin Star Mining Complex.
3.      Continuation of Existing Bonds. All Retained Bonds shall remain in place or shall be replaced with Surety Bonds or other Financial Assurance reasonably acceptable to the Department of an identical amount; provided that, nothing herein shall limit the Reorganized Debtors' obligation to provide full cost bonding pursuant to Paragraph 6(a) herein.
4.      Establishment and Funding of the Restricted Cash Accounts.
(a)      On or prior to the Effective Date, the Debtors or the Reorganized Debtors shall establish the Restricted Cash Accounts in accordance with the terms of this Agreement and the Reclamation Funding Agreement and shall execute and deliver to the Department a deposit account control agreement in form and

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substance reasonably acceptable to the Department with respect to the establishment and use of the Restricted Cash Accounts.
(b)      The Reorganized Debtors shall fund the Restricted Cash Accounts as follows:
(i)      The Reorganized Debtors shall deposit into the Restricted Cash Accounts all funds required to be paid or deposited to the Commonwealth in accordance with the Reclamation Funding Agreement.
(ii)      Except as may otherwise be agreed to by the Department and the Reorganized Debtors, the Reorganized Debtors shall deposit into the Restricted Cash Reclamation Account: (1) 50% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the Commonwealth with respect to which Material Asset Sale the net cash proceeds are $500,000 or more; and (2) 25% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the Commonwealth with respect to which Material Asset Sale the net cash proceeds are at least $100,000 but less than $500,000. For the avoidance of doubt, all proceeds of Material Asset Sales relating to the Twin Star Complex shall be subject to this Section 4(b)(ii), whether such assets are located in the portion of the Twin Star Mining Complex that is located in the Commonwealth or the portion that is located in the State of West Virginia.
(iii)      Any collateral returned to or received by the Reorganized Debtors by, from or with respect to any issuer of any Surety Bond(s) issued in the Commonwealth shall be deposited in the Restricted Cash Reclamation Account established for the Commonwealth.
(c)      All funds deposited into the Restricted Cash Accounts may be used solely to fund reclamation, mitigation and water treatment and management obligations in the Commonwealth in accordance with the terms of this Agreement and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement.
(d)      The Department shall have the right to audit the Restricted Cash Accounts at any time and from time to time, in each case upon reasonable notice to the Reorganized Debtors.
5.      Virginia Reclamation Compliance.
(a)      Obligation to Complete Reclamation .
(i)      The Reorganized Debtors hereby acknowledge their obligations to Fully Reclaim all of their permitted Mining Sites in

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accordance with the Retained Permits and all applicable state and federal laws, without any limitation relating to the amounts included in or required to be deposited or paid into the Restricted Cash Reclamation Account or the amount of any of the Surety Bonds or other Financial Assurance issued pursuant to or in accordance with this Agreement.
(ii)      Reclamation of the Twin Star Mining Complex shall be complete or current by the tenth anniversary of the Effective Date on a schedule that substantially conforms to the Debtor-Twin Star Mining Company-Virginia DMLR Reclamation Plan, a copy of which is attached hereto as Exhibit 3 (the " Reclamation Schedule "), as it may be modified or amended from time to time by written agreement of the Reorganized Debtors and the Department.
(b)      Reclamation Agreements .
(i)      Within 30 days after the Effective Date, the Reorganized Debtors and the Department shall enter into an agreement (the " Reclamation Agreement "), pursuant to which, among other things, the parties thereto shall establish with respect to the Twin Star Mining Complex: (1) a schedule of priority for reclamation, mitigation and water treatment and management; and (2) a detailed reclamation and water treatment schedule that substantially conforms to the Reclamation Schedule, as it may be modified or amended from time to time by written agreement of the Reorganized Debtors and the Department.
(ii)      The Reclamation Agreement may provide that the Reorganized Debtors and their assignees may continue to mine coal incidental to reclamation as authorized in accordance with their terms.
(c)      Use of Funds in Restricted Cash Accounts .
(i)      Subject to the terms and provisions of this Agreement and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement, and unless and until the Department delivers a notice pursuant to Section 9(c)(ii) hereof, the Reorganized Debtors may use funds contributed to the Restricted Cash Accounts in the performance of their obligations to complete reclamation, mitigation (to the extent required under Retained Permits issued by the Department) and water treatment and management only within the Commonwealth and only in accordance with the Retained Permits and any applicable Reclamation Agreements; provided , however, that the Reorganized Debtors may use funds in the Restricted Cash Accounts for mitigation under section 404 of the Clean Water Act only if agreed to by the Department.

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(ii)      Upon the Department's delivery of a notice pursuant to Section 9(c)(ii) hereof, the Reorganized Debtors' right to use funds in the Restricted Cash Accounts shall immediately cease without further action on the part of the Department, the funds then contained in the Restricted Cash Accounts shall be deemed to constitute a cash bond (as provided for under Va. Code Ann. § 45.1-241) with respect to the Reorganized Debtors' performance of their obligations to reclaim and manage and treat water at the Twin Star Mining Complex and the Department shall be entitled to execute upon its collateral pledge of any amounts held in or payable into the Restricted Cash Accounts in accordance with Section 9(c)(iii) hereof.
(iii)      Upon written confirmation from the Department confirming the Full Reclamation of the Retained Permits and the release of the associated bonds, any remaining funds in the Restricted Cash Accounts shall be delivered to the Reorganized Debtors.
(d)      Budgeting and Accounting for Reclamation and Water Treatment .
(i)      Within 45 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from the Effective Date through December 31, 2016.
(ii)      Within 120 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, based on the Reclamation Agreement, reflecting the Reorganized Debtors' reasonable best efforts to project estimated expenditures from the Restricted Cash Accounts on account of reclamation, mitigation and water treatment and management expenses at the Twin Star Mining Complex through December 31, 2018 (the " Long-Term Budget ").
(iii)      On or before December 1, 2016, the Reorganized Debtors shall provide to the Department a budget (the " Semi-Annual Budget "), subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from January 1, 2017 through June 30, 2017. The Reorganized Debtors shall revise and update the Semi-Annual Budget for each ensuing six-month period by no later than 30 days prior to the conclusion of the current period (or on such schedule as may otherwise be agreed upon by the Reorganized Debtors and the Department).
(iv)      The Reorganized Debtors shall provide to the Department accountings of its Free Cash Flow and actual-to-budgeted expenditures

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from the Restricted Cash Accounts within 30 days after the end of each Quarterly Period. Such accountings shall be certified as to their accuracy by a senior officer of the Reorganized Debtors.
(v)      The Reorganized Debtors shall meet with the Department on a quarterly basis: (1) to review reclamation and water treatment progress, the Long-Term Budget and the current Semi-Annual Budget; (2) to provide updates on reclamation and water treatment spending from the Restricted Cash Accounts; and (3) to discuss other matters relevant to their obligations to fund such accounts.
6.      Other Provisions on Bonding and Reclamation .
(a)      Full Cost Bonding . The Reorganized Debtors shall provide full cost bonding with respect to any remaining Retained Permits by no later than 60 days after Effective Date.
(b)      Other Permit Revisions, Modifications and Amendments. The Reorganized Debtors may submit applications for revisions, modifications or amendments to the Retained Permits as the Reorganized Debtors may determine to be desirable or necessary to amend the terms and conditions of any Retained Permit or to facilitate bond reduction, bond release and/or efficient and cost effective completion of reclamation. Any applications for revision, modification or amendment of the Retained Permits will be advertised in accordance with applicable regulatory requirements and otherwise comply with applicable regulatory requirements. The Reorganized Debtors and the Department agree to respond to comments received on any such application on a timely basis. The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other such that such Retained Permit revisions, modifications or amendments are processed in a timely manner to facilitate the completion of reclamation in a manner consistent with any applicable Reclamation Agreement and applicable state and federal law.
(c)      Administrative Fee . The Reorganized Debtors shall pay out of the Restricted Cash Reclamation Account an administrative fee to the Department to provide for the oversight of the budgeting, accounting and settlement implementation activities of the Department in the amount of $20,000 per annum.
(d)      Access to Rejected Leasehold Properties .
(i)      Consistent with the order authorizing, among other things, the rejection of certain unexpired leases (Docket No. 2239) (the " Rejection Order ") and any similar order, the Debtors and the Reorganized Debtors shall work with the lessors under rejected leases to obtain access to the applicable sites to complete reclamation or perform mitigation or water treatment (any such site, a " Rejected Lease Site ") .

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(ii)      The failure to obtain access shall not excuse the Debtors or the Reorganized Debtors from complying with their reclamation, mitigation and water treatment obligations under applicable law. The Debtors shall include language in the order confirming the Plan (the " Confirmation Order ") clarifying that paragraph 8 of the Rejection Order and any other similar order does not apply to the Department or interfere in any way with the Department's enforcement of the Mining Laws against the Debtors, the Reorganized Debtors or any other parties and incorporating any other provisions agreed upon by the Department, the Debtors and Reorganized Debtors.
(e)      Consent Orders . The Reorganized Debtors and the Department shall negotiate in good faith such consent orders as the Department shall deem necessary or appropriate to embody the terms of the Reclamation Agreement and this Agreement.
7.      Limitations on Certain Transactions .
(a)      Asset Sales . With respect to all Material Asset Sales of assets involving mining assets located in the Commonwealth or Retained Permits, the Reorganized Debtors shall provide reasonable notice of, and consult with the Department regarding, the proposed Material Asset Sale.
(b)      No Dividends . Until the Reorganized Debtors have fulfilled their obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with this Agreement, ANR, Inc., Alpha Natural Resource Holdings, Inc., and any other issuer of equity interests distributed to creditors under the Plan, other than the Purchaser or any of its subsidiaries, shall not make any distributions on account of any of their equity interests; provided , however , that nothing herein shall prohibit the Reorganized Debtors from making payments or otherwise satisfying their obligations pursuant to the Plan with respect to the Reorganized ANR Contingent Revenue Payment.
(c)      For the avoidance of doubt, nothing in Section 7(a) hereof shall: (i) limit or interfere with the Department's exercise of discretion with respect to any required regulatory approval; (ii) alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation of all of its or their respective permitted sites in accordance with any applicable Reclamation Agreement, consent decrees and this Agreement; or (iii) apply to the Sale Transaction.
8.      Releases .
(a)      The Department agrees that, as of the Effective Date:

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(i)      (1) The Department shall and does hereby release the Debtors' shareholders, directors, officers, employees and agents from any claims, violations or conditions arising prior to the Effective Date and (2) the Department shall not link any of the Debtors' shareholders, directors, officers, employees or agents to the Applicant/Violator System for any claims, violations or conditions arising prior to the Effective Date. The Parties agree that nothing in the foregoing shall (1) release or affect the liability of any of the Reorganized Debtors or their shareholders, directors, officers, employees, agents or other owners or controllers for any claims or violations with respect to the Retained Assets and the Retained Permits first arising after the Effective Date (whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date) (a " Post-Effective Date Violation "); or (2) prevent any of the Reorganized Debtors' shareholders, directors, officers, employees, agents and other owners and controllers of the Reorganized Debtors from being linked to the Applicant/Violator System on account of any Post-Effective Date Violation; provided , however , that the Department shall not take any action against any of the foregoing parties on account of any Post-Effective Date Violation based solely on a failure to undertake reclamation obligations in a timely manner, where such reclamation obligations are being performed and satisfied in accordance with the terms of applicable Reclamation Agreements, consent decrees or this Agreement.
(ii)      The Department shall and does hereby release the Purchaser, all of its subsidiaries, the First Lien Lenders, the First Lien Agent, the DIP Lenders, the DIP Agent, any affiliate of any of the foregoing (including any entity that is or becomes an affiliate of the Purchaser as a result of the Sale Transaction) and their respective directors, officers, employees and agents from any claims, violations or conditions (1) arising prior to the Effective Date or (2) with respect to the Retained Permits or the Retained Assets, in each case except to the extent that any or all of such entities or people after the Effective Date (x) are directors, officers, employees and agents of the Reorganized Debtors, or otherwise operate or own or control the Retained Permits, Retained Assets, or the Reorganized Debtors after the Effective Date or (y) constitute or become an operator, or own or control an operator, of the Transferred Permits or any other permit. For the avoidance of doubt, none of the (i) relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction, (ii) funding obligations of the Purchaser arising under the Reclamation Funding Agreement, and (iii) the consummation of the Sale Transaction, shall be construed to classify or give any right to the Department to classify or

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assert the Purchaser or its subsidiaries or their respective shareholders, directors, officers or employees as an owner or controller of the Reorganized Debtors.
(iii)      The Department shall and does hereby release the Reorganized Debtors and their directors, officers, employees and agents for any claims, violations or conditions with respect to the Transferred Permits, except to the extent that any or all of such entities or persons are also employed by, or otherwise own or control, the Purchaser after the Effective Date. For the avoidance of doubt, none of the (i) relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction, (ii) funding obligations of the Purchaser arising under the Reclamation Funding Agreement, and (iii) the consummation of the Sale Transaction, shall be construed to classify or give any right to the Department to classify or assert the Reorganized Debtors or their subsidiaries or their respective shareholders, directors, officers or employees as an owner or controller of the Purchaser.
(b)      This Agreement shall be incorporated by reference into the Confirmation Order. To the extent this Agreement conflicts or is otherwise inconsistent with the terms of the Plan, the Agreement shall govern.
9.      Events of Default .
(a)      Each of the following shall constitute an "Event of Default" under this Agreement:
(i)      The failure of the Purchaser to timely make any payment in accordance with the Reclamation Funding Agreement within ten days after it is due in accordance with the terms of this Agreement;
(ii)      The failure of the Reorganized Debtors to timely contribute any amounts required to be contributed to the Restricted Cash Accounts in accordance with the Reclamation Funding Agreement within ten days after the contribution is due in accordance with the terms of this Agreement;
(iii)      The failure of the Reorganized Debtors to timely comply with their obligations in accordance with any Reclamation Agreement or any consent order with the Department;
(iv)      The Reorganized Debtors' actual expenditures from the Restricted Cash Accounts exceed their budgeted expenditures by the greater of 20% or $250,000 in the aggregate for any Quarterly Period; and

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(v)      The Reorganized Debtors file a voluntary petition for relief under the Bankruptcy Code, or an involuntary petition is filed against the Reorganized Debtors that is not dismissed within 60 days.
(b)      If an Event of Default occurs, the Department may provide notice to the Reorganized Debtors and the Purchaser of such Event of Default (the " Notice of Default "). The Reorganized Debtors and the Purchaser shall have until the date that is 30 days from the date of their receipt of the Notice of Default (the " Cure Deadline ") to cure any Event of Default arising pursuant to Section 9(a)(iii) hereof.
(c)      Upon the occurrence of an Event of Default and, with respect to any Event of Default arising pursuant to Section 9(a)(iii) hereof, its continuation until after the Cure Deadline, the Department may:
(i)      terminate this Agreement;
(ii)      deliver a notice of termination of the right to use cash in the Restricted Cash Accounts and require that such funds be delivered to the Department;
(iii)      draw down on any letter of credit or other collateral posted pursuant to this Agreement, including without limitation any funds in the Restricted Cash Accounts;
(iv)      revoke any or all of the Reorganized Debtors' permits in the Commonwealth, including the Retained Permits and forfeit the amount of any bonds therefor; and/or
(v)      take any other regulatory or enforcement action permitted by law.
(d)      The Department shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of the Department of any right to take any action upon the occurrence of any Event of Default.
(e)      The termination of this Agreement shall have no effect on the obligations of the Reorganized Debtors hereunder, the obligations of the Reorganized Debtors or the Purchaser under the Reclamation Funding Agreement, the obligations of the Reorganized Debtors to Fully Reclaim all of their permitted Mining Sites in accordance with the Retained Permits and all applicable state and federal laws and otherwise comply with applicable state and federal laws, or any of the releases granted under this Agreement.

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(f)      Without limiting any other provision of this Agreement, nothing in this Section 9 shall be deemed or construed to limit or otherwise affect the authority or ability of the Department to issue notices of violation or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against the Reorganized Debtors, the Purchaser or any other person or entity or in respect of any permits or mining sites in the Commonwealth, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g)      An Event of Default by the Reorganized Debtors of the type described in Section 9(a)(ii) through (v) shall not be construed to require the Purchaser to cure such defaults or otherwise make the Purchaser liable for such defaults. Similarly, an Event of Default by the Purchaser of the type described in Sections 9(a)(i) hereof shall not be construed to require the Reorganized Debtors to cure such default or otherwise make the Reorganized Debtors liable for such default.
10.      Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Agreement:
(a)      This Agreement, the Reclamation Funding Agreement and the Water Treatment Stipulation shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(b)      The Plan, as it may be amended consistent with the terms of this Agreement, shall be confirmed on or before July 15, 2016;
(c)      The Confirmation Order shall include customary carve-outs from the release, discharge, injunction, exculpation and similar provisions of the Plan and Confirmation Order for governmental units; provided, however, that such carve-outs shall not limit any releases provided under this Agreement;
(d)      The Effective Date shall occur on or before July 31, 2016;
(e)      There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First-Lien Lenders, the Second-Lien Lenders and the Creditors Committee, as filed with the Bankruptcy Court prior to May 25, 2016;
(f)      There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and
(g)      There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.

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11.      Agreement and the Plan . In the event of a conflict between the terms of this Agreement and the Plan with respect to the terms hereof, this Agreement shall control.
12.      Covenants, Cooperation and Good Faith Efforts .
(a)      Reclamation Agreement, Plans and Budgets . The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other to negotiate the Reclamation Agreement with respect to the Retained Permits and develop the Long-Term Budget and the Semi-Annual Budgets for the Retained Permits such that reclamation, mitigation and water treatment work is sequenced and otherwise conducted in a manner that (i) protects the public health and safety, (ii) complies with state and federal law and (iii) properly manages the available financial resources to help ensure the cost-effective and timely completion of Full Reclamation and the release of all bonds associated with the Retained Permits.
(b)      Use of Resources . The Reorganized Debtors and the Department agree to work in good faith with each other to ensure that the reclamation, mitigation and water treatment work with respect to the Retained Permits is sequenced and otherwise conducted in a manner that maximizes the reclamation work that can be completed with the resources available.
(c)      Timely Reclamation . If the Reorganized Debtors are performing the reclamation, mitigation and water treatment obligations under the Retained Permits in accordance with their time frames and provisions or any applicable Reclamation Agreements or consent orders, the Department shall take no action to forfeit the reclamation bonds relating to the Retained Permits or issue any notice of noncompliance or cessation order based solely on a failure to undertake reclamation in a timely manner. For the avoidance of doubt, nothing herein affects the rights of the Department to take all enforcement actions consistent with applicable Commonwealth and federal law on any Retained Permits for any other violation.
13.      Incidental Permit Transfers and Phased Bond Releases .
(a)      Permit Transfers Incident to Restructuring Transactions . The Plan contemplates that the Debtors will modify the corporate form of certain of the Debtors and establish one or more new ultimate parent entities of the Debtors (collectively, the " Restructuring Transactions "). To the extent the Restructuring Transactions, as a technical matter, may require updates or modifications of the Retained Permits that constitute permit transfers under applicable law, the Reorganized Debtors and the Department agree to cooperate and work in good faith with each other to effectuate such updates, modifications or transfers upon the Reorganized Debtors' application therefor.

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(b)      Phased Bond Releases . Upon submittal of appropriate replacement bonds to the Department, any corresponding reclamation bonds originally issued to the Debtors with respect to such Transferred Permits will be released in accordance with the standard permit procedures under applicable Commonwealth and federal law.
14.      Third Party Beneficiaries. The Parties acknowledge and agree that the Third Party Beneficiaries are intended to be and hereby are acknowledged to be the sole third party beneficiaries of this Agreement. The Parties acknowledge and agree that the Third Party Beneficiaries have no duty of performance under this Agreement to any Party. Notwithstanding anything to the contrary herein, subject to the occurrence of the Effective Date, all of the provisions of this Agreement expressly or impliedly inuring to the benefit of the Third Party Beneficiaries shall survive the expiration, termination or the supersession of this Agreement, in each case for any reason, and shall remain fully effective for the benefit of the Third Party Beneficiaries and fully enforceable by the Third Party Beneficiaries against each Party notwithstanding such expiration, termination or superseding cause. The Parties acknowledge and agree that, except as explicitly set forth in this Section, nothing in this Agreement is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein).
15.      Successors and Assigns. The provisions of this Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.
16.      Entire Agreement. This Agreement, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.
17.      Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth without regard for the conflict of laws provisions thereof.
18.      Authority and Validity . Each Party otherwise represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Agreement and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) such Party's execution and delivery of, and performance under, this Agreement and the other documents and instruments contemplated hereby to which it is

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contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Agreement; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
19.      No Reliance. Each Party represents and warrants that in entering into this Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
20.      Modification or Amendment. This Agreement may be modified or amended only by written agreement executed by each of the Parties and, with regards to any provision impacting the First Lien Lenders or the First Lien Agent, the written consent of the First Lien Lenders or the First Lien Agent, as applicable.
21.      Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Agreement and to consummate the transactions contemplated hereby and thereby.
22.      Construction. This Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Agreement were negotiated at arms'-length, and this Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Agreement and the Plan, the terms of this Agreement shall govern.
23.      Headings. Titles and headings in this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Agreement.
24.      Execution in Counterpart. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together

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shall constitute one and the same instrument. All signatures of the Parties to this Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
25.      Severability. If any provision of this Agreement is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(Remainder of Page Intentionally Blank; Signatures to Follow)



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IN WITNESS WHEREOF, the Parties hereto have executed this [redacted text] Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
VIRGINIA DEPARTMENT OF MINES,
MINERALS AND ENERGY
/s/ Mark M. Manno
 
 
By:
Mark M. Manno
 
By:
 
Its:
EVP, General Counsel, CFO & Secretary
 
Its:
 

CONTURA ENERGY, INC.
 
By:
 
Its:
 







IN WITNESS WHEREOF, the Parties hereto have executed this [redacted text] Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
VIRGINIA DEPARTMENT OF MINES,
MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
/s/ John DeGroote
By:
John DeGroote
Its:
President and Secretary







IN WITNESS WHEREOF, the Parties hereto have executed this [redacted text] Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates
 
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
/s/ John W. Warren
 
By:
 
 
By:
John W. Warren
 
Its:
 
 
Its:
Director
 

CONTURA ENERGY, INC.
 
By:
 
Its:
 










Exhibit 1
[Schedule of Retained Permits]







SCHEDULE OF RETAINED PERMITS

COMPLEX
PERMIT NUMBER
PERMITTEE
MINE
STATUS
Twin Star
1101960
TWIN STAR MINING, INC.
Long Branch Surface - Eagle
Reclaim Only
Twin Star
1101961
TWIN STAR MINING, INC.
Long Branch Surface - Blair
Temporary Cessation
Twin Star
1101966
TWIN STAR MINING, INC.
Lower Elk Creek Strip
Temporary Cessation
Twin Star
1101967
TWIN STAR MINING, INC.
Laurel Fork Strip
Reclaim Only
Twin Star
1101968
TWIN STAR MINING, INC.
Lower Elk Creek Reserve
Reclaim Only
Twin Star
1101981
TWIN STAR MINING, INC.
Sycamore Strip
Active
Twin Star
1201969
TWIN STAR MINING, INC.
SG #1 Mine
Reclaim Only
Twin Star
1201970
TWIN STAR MINING, INC.
Long Branch Deep Mine
Reclaim Only
Twin Star
1201973
TWIN STAR MINING, INC.
Sycamore Fork
Reclaim Only
Twin Star
1301956
TWIN STAR MINING, INC.
Twin Star Preparation Plant
Active
Twin Star
1301962
TWIN STAR MINING, INC.
Twin Star Mining, Inc. Load Out
Temporary Cessation
Twin Star
1801971
TWIN STAR MINING, INC.
Twin Star Haulroad
Active



1



Exhibit 2
[Reclamation Funding Agreement]






RECLAMATION FUNDING AGREEMENT
THIS AGREEMENT (as it may be amended or modified from time to time, this " Reclamation Funding Agreement ") is made and entered into as of July 12, 2016, by and among: Alpha Natural Resources, Inc. (" ANR "), on behalf of itself and its debtor-affiliates (collectively with ANR, the " Debtors " or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the " Reorganized Debtors "); Contura Energy, Inc. (the " Purchaser "); the Illinois Department of Natural Resources; the Kentucky Energy and Environment Cabinet, Department for Natural Resources; the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee (" OSMRE "); the Virginia Department of Mines, Minerals and Energy; and the West Virginia Department of Environmental Protection (collectively, the " Regulatory Authorities " and, together with the Debtors and the Purchaser, the " Parties ").
WHEREAS , on August 3, 2015 (the " Petition Date "), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the " Bankruptcy Code ") in the United States Bankruptcy Court for the Eastern District of Virginia (the " Bankruptcy Court "), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the " Chapter 11 Cases ");
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the " Plan "), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Regulatory Authorities have issued certain permits (collectively, the " Permits ") to the Debtors in connection with the Debtors' operation and reclamation of certain mines and facilities within their respective states or commonwealths (collectively, the " States ");
WHEREAS , the Debtors entered into a transaction (the " Sale Transaction ") pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith), with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date providing for (a) the sale of certain of the Debtors' assets to the Purchaser, (b) the assumption of certain of the Debtors' liabilities by the Purchaser (c) the transfer of certain of the Permits (collectively, the " Transferred Permits ") to the Purchaser and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors' assets that are not sold pursuant to the Sale Transaction (collectively, the " Retained Assets ");




WHEREAS , a primary purpose of the Reorganized Debtors will be to hold and satisfy their obligations under the Permits associated with the Retained Assets (collectively, the " Retained Permits ") and to complete all reclamation requirements of the Permits associated with the Retained Assets including the management of reclamation activities at certain sites with only reclamation activities to be completed (collectively, the " Reclaim-Only Sites ");
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Retained Permits associated with a Reclaim-Only Site by State;
WHEREAS , contemporaneously herewith the Debtors and the Purchaser together have entered into separate settlement agreements (collectively, the " State Settlement Agreements ") with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration and water treatment (including long term water treatment) in their respective States in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq . (" SMCRA "), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the " Mining Laws ") on Mining Complexes operated under Permits previously issued to ANR and its subsidiaries;
WHEREAS , contemporaneously herewith the Debtors, the Purchaser and Citicorp North America, Inc. (the " First Lien Agent ") have entered into that certain Stipulation Regarding Water Treatment Obligations (the " Water Treatment Stipulation ") with the Environmental Protection Agency ("EPA") to define the framework and funding for the fulfillment of the Reorganized Debtors' and the Purchaser's obligations under the EPA Consent Decree (as defined in the Water Treatment Stipulation) and the Reorganized Debtors' other water treatment obligations;
WHEREAS , the Parties desire to enter into this Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation and water treatment (including long-term water treatment) and management work to be done on the Reclaim-Only Sites; and
WHEREAS , the terms of this Reclamation Funding Agreement are incorporated into the Plan, and the Parties intend that this Reclamation Funding Agreement and the related State Settlement Agreements shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing, the execution by each of the Regulatory Authorities of their respective State Settlement Agreements and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1.      Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed them in the Plan. In addition to the terms defined above, the following terms have the following meanings herein:

2


(a)      " Effective Date " means the date upon which the Plan shall become effective in accordance with its terms.
(b)      " Free Cash Flow " means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors' net working capital, minus capital expenditures, measured for any Quarterly Period.
(c)      " Funding Threshold Amount " means the funded amount of a State's Restricted Cash Reclamation Account that is equal to 125% of the remaining Total Cost of Reclamation in that State.
(d)      " Fully Reclaim ," " Fully Reclaimed " or " Full Reclamation " means, as to any or all Retained Permits, the completion of reclamation, as provided for by the applicable Mining Laws.
(e)      " Restricted Cash Reclamation Accounts " means a separate interest bearing segregated deposit account for each of the Regulatory Authorities established pursuant to the applicable State Settlement Agreement in which account such Regulatory Authority shall hold a first priority security interest, perfected by "control" under the applicable Uniform Commercial Code.
(f)      " Total Cost of Reclamation " means the estimate of the total cost of reclamation, mitigation, the calculated net present value of the cost of water treatment for the period of time specified by the Regulatory Authority's standards for long-term water treatment and management associated with the Reorganized Debtors' mining operations. For the avoidance of doubt, the Reorganized Debtors' proposed Total Cost of Reclamation for Retained Permits in each State shall be reviewed by each applicable Regulatory Authority for completeness and reasonableness of approach.
2.      Funding of the Restricted Cash Reclamation Accounts by the Purchaser.
(a)      Periodic Payments . In accordance with the allocations determined pursuant to Section 5 hereof, the Purchaser shall pay the aggregate amount of $50,000,000 into the various Restricted Cash Reclamation Accounts as follows:
(i)      $8,000,000 immediately upon the Effective Date;
(ii)      $10,000,000 on the anniversary of the Effective Date in each of 2017, 2018, and 2019; and

3


(iii)      $12,000,000 on the anniversary of the Effective Date in 2020.
(b)      Contingent Payment Obligation. In addition to the amounts paid pursuant to Section 2(a ) hereof, and in accordance with the allocations set forth in Section 5 hereof, the Purchaser shall pay up to an aggregate amount of $50,000,000 (the " Contingent Payment Obligation Cap ") into the various Restricted Cash Reclamation Accounts as a contingent payment obligation from 2021 through 2025 (the " Contingent Payment Obligation ").
(i)      The Purchaser shall make Contingent Payment Obligation contributions into the Restricted Cash Reclamation Accounts up to the Contingent Payment Obligation Cap only in the following circumstances:
(1)      If and to the extent that the Reorganized Debtors do not contribute $50,000,000 of Free Cash Flow into the Restricted Cash Reclamation Accounts through December 31, 2020 as set forth in Section 4(b) hereof; and
(2)      If the Reorganized Debtors make any Reorganized ANR Contingent Revenue Payment (as such term is defined in the Plan) that reduces the amount of Free Cash Flow that the Reorganized Debtors otherwise would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment, then a Contingent Payment Obligation will be payable in the amount of the difference between (A) the amount of Free Cash Flow that the Reorganized Debtors would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment and (B) the amount of Free Cash Flow actually contributed.
(ii)      For the avoidance of doubt, the Purchaser's obligations under Section 2(b)(i) hereof shall be cumulative up to the amount of the Contingent Payment Obligation Cap.
(iii)      The Purchaser shall make any Contingent Payment Obligation contributions up to the Contingent Payment Obligation Cap according to the following schedule, solely to the extent due and payable as of the applicable payment date in accordance with Section 2(b)(i) hereof:
(1)      $10,000,000 on the anniversary of the Effective Date in each of 2021, 2022, 2023 and 2024; and

4


(2)      The difference between any Contingent Payment Obligation contributions made and the Contingent Payment Obligation Cap on the anniversary of the Effective Date in 2025.
(c)      Parent Guaranty . The Purchaser's obligations under this Section 2 shall be guaranteed by its parent, if any.
3.      Limitations on Certain Transactions by the Purchaser. The Purchaser agrees that, for five years after the Effective Date, it will not sell all or substantially all of its assets unless either:
(a)      the purchaser(s) of such assets agree(s) to assume the liabilities of the Purchaser under this Reclamation Funding Agreement; or
(b)      such liabilities are otherwise satisfied or funded.
4.      Funding of the Restricted Cash Reclamation Accounts by the Reorganized Debtors.
(a)      Periodic Payments .
(i)      In accordance with the allocations determined in accordance with Section 5 hereof, the Reorganized Debtors shall pay and deposit the aggregate amount of $109,000,000 into the various Restricted Cash Reclamation Accounts through 2025.
(ii)      Such payments shall be made in the following aggregate amounts: $5,000,000 in 2016, $10,000,000 in each of 2017 and 2018 and $12,000,000 in each year from 2019 through 2025.
(iii)      All such payments shall be made in equal monthly installments in the year in which they are due. The Reorganized Debtors shall make the first payment on or before August 31, 2016 and the remaining payments on or before the last day of each subsequent month through December 2025.
(b)      Excess Cash Flow Payments .
(i)      In addition to the amounts to be paid pursuant to Section 4(a) above, and in accordance with the allocations determined pursuant to Section 5 hereof, the Reorganized Debtors shall pay and deposit 50% of the Free Cash Flow that they generate into the Restricted Cash Reclamation Accounts. Such payments are over and above the amounts required to be paid in Section 4(a) above.
(ii)      Such payments of Free Cash Flow shall be made with respect to each State until either: (1) all Reclaim-Only sites have been

5


Fully Reclaimed and any long-term water treatment or water management obligations in such State are fully funded and have been covered by a method approved by the regulator for the applicable State (such as a long-term water treatment trust); or (2) the Funding Threshold Amount has been reached with respect to each State, it being understood that once the Funding Threshold Amount for a State has been reached, (A) the Free Cash Flow contribution obligation to the Restricted Cash Reclamation Account for the applicable State shall be reduced to an amount necessary to maintain such Funding Threshold Amount, until such time as all Reclaim-Only Sites have been Fully Reclaimed and (B) the remaining portion of the Free Cash Flow contribution shall be deposited into the Restricted Cash Reclamation Accounts of the remaining States in accordance with the allocations determined pursuant to Section 5 hereof, as adjusted.
(iii)      The Free Cash Flow contributions required under this Section shall be paid within 30 days after each calendar quarter end, subject to reconciliation on an annual basis.
(c)      Surety Collateral Returns .
(i)      Any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer that has issued bonds in only one State will be paid into the Restricted Cash Reclamation Account of that State or otherwise dealt with in accordance with any applicable agreement among the Reorganized Debtors and such State.
(ii)      To the extent any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer whose bonds relate to permits in multiple States, such collateral shall be contributed to the Restricted Cash Reclamation Accounts for the applicable States: (1) in proportion to the dollar amounts of the bonds versus the amount of the collateral until the amount for any such State exceeds its Funding Threshold Amount; and (2) then to the other States in accordance with the allocations set forth in Section 5 hereof, as adjusted.
(d)      In the event of a merger or sale of all or substantially all of the assets of the Reorganized Debtors, then all of the Reorganized Debtors' obligations under Sections 4(a) above and 6(c) below shall either (i) be accelerated and paid in full on a net present value basis into the applicable Restricted Cash Reclamation Accounts or (ii) be assumed by the purchaser or surviving entity, before or at the closing of such transaction; provided , however, that the Restructuring Transactions, including, without limitation, the NewCo Asset Sale, shall not be deemed to be mergers or sales within the meaning of this Section 4(d) . For the avoidance of doubt, nothing in this Section 4(d) shall:

6


(i)      limit or interfere with any Regulatory Authority's exercise of discretion with respect to approving any permit transfer or other required regulatory approval; or
(ii)      alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
5.      Allocation of Periodic Contributions .
(a)      Periodic contributions required under Sections 2 and 4 (collectively, the " Periodic Contributions ") shall be allocated to the applicable States as set forth in this Section 5.
(b)      For the years 2016 through 2018, the Periodic Contributions shall be allocated among the various Restricted Cash Reclamation Accounts based upon the Debtors' current relative asset retirement obligations in each State, as follows: 83% for West Virginia; 11.25% for Kentucky; 4% for Virginia; 1% for Illinois; and 0.75% for Tennessee.
(c)      Within 90 days of the Effective Date, the Reorganized Debtors shall begin an evaluation of all of their Permits and shall develop a Total Cost of Reclamation for each State. Such evaluation may be the same as any asset retirement obligation analysis previously undertaken by the Debtors. A preliminary Total Cost of Reclamation for each State shall be developed by July 1, 2017 and provided to each of the States at that time for their review and comment. A final Total Cost of Reclamation shall be provided to each of the States for their review and comment by July 1, 2018.
(d)      The allocation of Periodic Contributions to the Restricted Cash Reclamation Accounts shall be reassessed and adjusted bi-annually beginning on January 1, 2019 based upon the Total Cost of Reclamation in each of the States as of July 1, 2018, and the Periodic Contributions required under Sections 2 and 4 shall be made to the various Restricted Cash Reclamation Accounts in accordance with such adjusted allocations.
(e)      In the event that the Regulatory Authorities are unable to agree on adjusted allocations based upon the Total Cost of Reclamation, the allocations in Section 5(b) above shall continue to apply.
(f)      With respect to Tennessee, once the Reclamation Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee's Restricted Cash Reclamation Account, as well as future periodic contributions to such account, shall be paid into the Reclamation Trust.

7


6.      Funding of the Reorganized Debtors' Water Treatment Obligations Pursuant to the Water Treatment Stipulation
(a)      Pursuant to the Water Treatment Stipulation, the Reorganized Debtors will provide EPA and the Regulatory Authorities for the States in which their water treatment occurs (i) an annual summary of the expenditures on their water treatment for the previous year, (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Reorganized Debtors will provide EPA with copies of any budgets delivered to the Regulatory Authorities in accordance with the terms of the State Settlement Agreements.
(b)      The First Lien Lender Contribution
(i)      Pursuant to the Water Treatment Stipulation, on the Effective Date, the Reorganized Debtors, with the consent of the First Lien Lenders, shall pay from the First Lien Lenders' collateral an additional $5 million to support the Reorganized Debtors' compliance with their water treatment obligations (the " First Lien Lender Contribution ").
(ii)      The First Lien Lender Contribution will be allocated equally among the States to be used for water treatment and other approved projects to improve water quality.
(iii)      On or prior to the Effective Date, the Reorganized Debtors shall create either of the following accounts (in either case, a " Water Treatment Restricted Cash Account ") with respect to each State to receive such State's share of the First Lien Lender Contribution: (1) a segregated subaccount within the each State's Restricted Cash Reclamation Account (as defined in the applicable State Settlement Agreement); or (2) a separate segregated restricted cash account. With respect to Tennessee, once the Water Treatment Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee's Water Treatment Restricted Cash Account, as well as future periodic contributions to such account, shall be placed into the Tennessee Water Treatment Trust until the trust is fully funded as determined by OSMRE.
(c)      The Reorganized Debtor Contribution
(i)      Pursuant to the Water Treatment Stipulation, the Reorganized Debtors shall contribute $15 million into the Water Treatment Restricted Cash Accounts from 2017 through 2023 (the " Reorganized Debtor Contribution ") to fund compliance with their water treatment obligations, including their obligations under the EPA Consent Decree.

8


(ii)      The Reorganized Debtor Contribution shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on July 1, 2017:
Year
Payment Dates
Aggregate Annual
Payment Amount
2017
July 1, October 1
$1,000,000
2018
January 1, April 1, July 1, October 1
$1,500,000
2019
January 1, April 1, July 1, October 1
$2,500,000
2020
January 1, April 1, July 1, October 1
$2,500,000
2021
January 1, April 1, July 1, October 1
$2,500,000
2022
January 1, April 1, July 1, October 1
$2,500,000
2023
January 1, April 1, July 1, October 1
$2,500,000
Total
 
$15,000,000

(iii)      The Reorganized Debtor Contribution for 2017 shall be divided equally among the States. Thereafter, (x) the Reorganized Debtors shall provide 20% of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust (as defined in the Water Treatment Stipulation) until such requirement is terminated pursuant to subparagraph (iv) below and (y) the remainder of the annual Reorganized Debtor Contribution shall be divided among the other States according to the percentage of actual expenditures on water treatment in each State; provided that, each State shall receive a minimum of at least $25,000 each year. The Reorganized Debtors will track their spending on water treatment in each State and submit a report to the applicable Regulatory Authority and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year.
(iv)      Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent Reorganized Debtor Contribution amounts shall be allocated among the other States in accordance with Section 6(c)(iii)(y) hereof.
(d)      The Reorganized Debtors will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the " Minimum Balance ") that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Reorganized Debtors and the applicable Regulatory Authority on an annual basis; provided that, nothing herein requires the Reorganized Debtors to designate more than $1,000,000 as the aggregate amount of Minimum Balances among the Water Treatment Restricted Cash Accounts in 2016. The Reorganized Debtors shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.

9


(e)      Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the State Settlement Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the State Settlement Agreements. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f)      For the avoidance of doubt, the funding to be provided to the Water Treatment Restricted Cash Accounts pursuant to the Water Treatment Stipulation or to the Restricted Cash Reclamation Accounts pursuant to this Reclamation Funding Agreement shall be used solely to fund the Reorganized Debtors' obligations thereunder and shall not be used to assist or subsidize the Purchaser's compliance.
7.      Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Reclamation Funding Agreement:
(a)      The Debtors and the Purchaser shall have executed a State Settlement Agreement with the applicable Regulatory Authority with respect to each State;
(b)      This Reclamation Funding Agreement, the Water Treatment Stipulation and the State Settlement Agreements shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(c)      The Plan, as it may be amended consistent with the terms of this Reclamation Funding Agreement and the State Settlement Agreements, shall be confirmed on or before July 15, 2016;
(d)      The Effective Date shall occur on or before July 31, 2016;
(e)      There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First-Lien Lenders, the Second-Lien Lenders and the Unsecured Creditors Committee as filed with the Bankruptcy Court prior to May 25, 2016;
(f)      There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and

10


(g)      There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.
8.      Reclamation Funding Agreement and the Plan . In the event of a conflict between the terms of this Reclamation Funding Agreement and the Plan, this Reclamation Funding Agreement shall control.
9.      Covenants, Cooperation and Good Faith Efforts. The Parties agree to cooperate and work in good faith with each other to obtain a consensus as to the Total Cost of Reclamation and the allocation of Periodic Contributions as set forth in Section 5 hereof.
10.      Successors and Assigns. The provisions of this Reclamation Funding Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code, and shall inure to the benefit of the Parties and their successors and assigns.
11.      Entire Agreement. This Reclamation Funding Agreement, together with the State Settlement Agreements with respect to each State, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein.
12.      Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Reclamation Funding Agreement, and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) the execution, delivery and performance by it of this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Reclamation Funding Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Reclamation Funding Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Reclamation Funding Agreement; and (d) the execution, delivery and performance by it (when such performance is due) of this Reclamation Funding Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute

11


(with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to the Regulatory Authorities, the undersigned represents and warrants that he/she has authority to enter into this Reclamation Funding Agreement.
13.      No Reliance. Each Party represents and warrants that in entering into this Reclamation Funding Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Reclamation Funding Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
14.      Modification or Amendment. This Reclamation Funding Agreement may be modified or amended only by written agreement executed by each of the Parties.
15.      Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Reclamation Funding Agreement, and to consummate the transactions contemplated hereby and thereby.
16.      Construction. This Reclamation Funding Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Reclamation Funding Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Reclamation Funding Agreement were negotiated at arms'-length, and this Reclamation Funding Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.
17.      Headings. Titles and headings in this Reclamation Funding Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Reclamation Funding Agreement.
18.      Execution in Counterpart. This Reclamation Funding Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Reclamation Funding Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.
19.      Severability. If any provision of this Reclamation Funding Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent

12


of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
(Remainder of Page Intentionally Blank; Signatures to Follow)


13



IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
/s/ Mark M. Manno
 
 
By:
Mark M. Manno
 
By:
 
Its:
EVP, General Counsel, CFO & Secretary
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
/s/ John DeGroote
 
 
By:
John DeGroote
 
By:
 
Its:
President and Secretary
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 








IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
/s/ Kristin A. Boggs
 
 
By:
Kristin A. Boggs
 
By:
 
Its:
General Counsel
 
Its:
 

ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
/s/ James Hafliger
 
 
By:
James Hafliger
 
 
 
Its:
Office of Mines and Minerals Director
 
 
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
/s/ Allen Luttrell
By:
 
 
By:
Allen Luttrell
Its:
 
 
Its:
Commissioner

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
/s/ Joseph G. Pizarchik
By:
 
 
By:
Joseph G. Pizarchik
Its:
 
 
Its:
Director

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
 
 
By:
 
Its:
 
 
Its:
 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
/s/ John W. Warren
By:
 
 
By:
John W. Warren
Its:
 
 
Its:
Directors

ILLINOIS DEPARTMENT OF NATURAL RESOURCES
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 






Exhibit 1
[Schedule of Retained Permits]






RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
S502393
BANDMILL COAL CORPORATION
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S505389
HIGHLAND MINING COMPANY
WV
Bandmill
S505489
HIGHLAND MINING COMPANY
WV
Bandmill
WV1016938
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O504286
TRACE CREEK COAL COMPANY
WV
Band mill
O504691
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
S504186
TRACE CREEK COAL COMPANY
WV
Bandmill
S506288
TRACE CREEK COAL COMPANY
WV
Bandmill
S505389
ALEX ENERGY, INC.
WV
Bandmill
D001982
ARACOMA COAL COMPANY, INC.
WV
Bandmill
U500500
ARACOMA COAL COMPANY, INC.
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
O005082
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
U021383
BANDMILL COAL CORPORATION
WV
Bandmill
O501104
HIGHLAND MINING COMPANY
WV
Bandmill
P501114
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503408
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
S508486
HIGHLAND MINING COMPANY
WV

1

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
U009283
RUM CREEK COAL SALES, INC.
WV
Bandmill
S500104
RUM CREEK COAL SALES, INC.
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503897
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O002685
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O500788
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O502386
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O504191
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O505088
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S401395
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S504988
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500498
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500590
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503592
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503792
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U504491
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S400400
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501307
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S502099
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501608
PREMIUM ENERGY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U007584
RIVERSIDE ENERGY COMPANY, LLC
WV
Cucumber
U402387
RIVERSIDE ENERGY COMPANY, LLC
WV
Delbarton
P502112
DELBARTON MINING COMPANY
WV
Elk Run
O506086
EAGLE ENERGY INC.
WV
Elk Run
O004383
EAGLE ENERGY INC.
WV
Elk Run
Prospect
ELK RUN COAL COMPANY, INC.
WV
Elk Run
U066300
ELK RUN COAL COMPANY, INC.
WV
Elk Run
P502213
PERFORMANCE COAL COMPANY
WV

2

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Elk Run
P300114
PERFORMANCE COAL COMPANY
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H052900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H056200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200301
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200787
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S102690
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200205
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200401
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200493
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200593
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200609
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P052600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P201414
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P202014
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
R062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S007185
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U102691
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201005
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201400
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201689
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
UO35900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D000782
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011082
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
I048200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P203507
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200310
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200487
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201498
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U307186
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D004781
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H047100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U101991
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011382
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
R067300
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV

3

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
O100898
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100893
KINGWOOD MINING COMPANY, LLC
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
U301799
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
U301406
MARFORK COAL COMPANY, INC.
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
P064200
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
R067100
GREEN VALLEY COAL COMPANY
WV
Green Valley
U306686
GREEN VALLEY COAL COMPANY
WV
Green Valley
H035600
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
R069000
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
U300409
GREEN VALLEY COAL COMPANY
WV
Green Valley
U302912
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U301407
GREEN VALLEY COAL COMPANY
WV
Inman Admiral
D010182
BLACK CASTLE MINING COMPANY
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S601189
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S501400
INDEPENDENCE COAL COMPANY, INC.
WV

4

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Inman Admiral
O509588
OMAR MINING COMPANY
WV
Inman Admiral
S007076
OMAR MINING COMPANY
WV
Inman Admiral
U040300
OMAR MINING COMPANY
WV
Kepler
R063000
DUCHESS COAL COMPANY
WV
Kepler
D006982
BIG BEAR MINING COMPANY
WV
Kepler
O010783
BIG BEAR MINING COMPANY
WV
Kepler
O017483
BIG BEAR MINING COMPANY
WV
Kepler
U058900
BIG BEAR MINING COMPANY
WV
Kepler
O005983
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
O007882
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400896
PAYNTER BRANCH MINING, INC.
WV
Kepler
S401298
PAYNTER BRANCH MINING, INC.
WV
Kepler
U503496
PIONEER MINING, INC.
WV
Kepler
U503596
PIONEER MINING, INC.
WV
Kepler
NPDES WV 1012207
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U047100
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U402195
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400196
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400295
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400595
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400695
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400697
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400901
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401100
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401300
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401497
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401200
RIVERSIDE ENERGY COMPANY, LLC
WV
Kingston
P300115
KINGSTON MINING, INC.
WV
Kingston
 
KINGSTON MINING, INC.
WV
Kingston
P301012
KINGSTON RESOURCES, INC.
WV
Kingston
P301413
KINGSTON RESOURCES, INC.
WV
Kingston
Prospect No. 9
KINGSTON RESOURCES, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501887
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501992
OMAR MINING COMPANY
WV
Liberty
U002685
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501106
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV

5

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500594
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501398
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U502191
OMAR MINING COMPANY
WV
Liberty
U501892
OMAR MINING COMPANY
WV
Litwar
P402708
BROOKS RUN MINING COMPANY, LLC
WV
Litwar
O011783
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
O007583
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
P300514
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
U400102
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014483
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014883
RIVERSIDE ENERGY COMPANY, LLC
WV
Mammoth
P302013
ALEX ENERGY, INC.
WV
Mammoth
P303212
ALEX ENERGY, INC.
WV
Mammoth
P304412
ALEX ENERGY, INC.
WV
Mammoth
S004577
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007085
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008379
JACKS BRANCH COAL COMPANY
WV
Mammoth
S301491
JACKS BRANCH COAL COMPANY
WV
Mammoth
S303790
JACKS BRANCH COAL COMPANY
WV
Mammoth
S600886
JACKS BRANCH COAL COMPANY
WV
Mammoth
U005584
JACKS BRANCH COAL COMPANY
WV
Mammoth
U300990
JACKS BRANCH COAL COMPANY
WV
Mammoth
U302200
JACKS BRANCH COAL COMPANY
WV
Mammoth
U601889
JACKS BRANCH COAL COMPANY
WV
Mammoth
S000684
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007885
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008883
JACKS BRANCH COAL COMPANY
WV
Mammoth
Z000481
JACKS BRANCH COAL COMPANY
WV
Mammoth
U045400
JACKS BRANCH COAL COMPANY
WV
Mammoth
U301500
JACKS BRANCH COAL COMPANY
WV
Mammoth
E010300
KANAWHA ENERGY COMPANY
WV
Mammoth
E011000
KANAWHA ENERGY COMPANY
WV
Mammoth
O304391
KANAWHA ENERGY COMPANY
WV
Mammoth
P071300
KANAWHA ENERGY COMPANY
WV
Mammoth
P303611
KANAWHA ENERGY COMPANY
WV
Mammoth
R064900
KANAWHA ENERGY COMPANY
WV
Mammoth
S300691
KANAWHA ENERGY COMPANY
WV
Mammoth
S304589
KANAWHA ENERGY COMPANY
WV
Mammoth
S600988
KANAWHA ENERGY COMPANY
WV
Mammoth
S602389
KANAWHA ENERGY COMPANY
WV
Mammoth
U300904
KANAWHA ENERGY COMPANY
WV

6

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Mammoth
U301290
KANAWHA ENERGY COMPANY
WV
Mammoth
P300205
KANAWHA ENERGY COMPANY
WV
Mammoth
P301111
KANAWHA ENERGY COMPANY
WV
Mammoth
P303310
KANAWHA ENERGY COMPANY
WV
Mammoth
P303511
KANAWHA ENERGY COMPANY
WV
Mammoth
S303390
KANAWHA ENERGY COMPANY
WV
Mammoth
O301907
KANAWHA ENERGY COMPANY
WV
Mammoth
U300504
KANAWHA ENERGY COMPANY
WV
Mammoth
U300896
KANAWHA ENERGY COMPANY
WV
Mammoth
U302099
KANAWHA ENERGY COMPANY
WV
Marfork
 
BOONE EAST DEVELOPMENT CO.
WV
Marfork
P300515
MARFORK COAL COMPANY, INC.
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
D004081
CLEAR FORK COAL COMPANY
WV
Marfork
S014278
CLEAR FORK COAL COMPANY
WV
Marfork
U008383
CLEAR FORK COAL COMPANY
WV
Marfork
U013000
CLEAR FORK COAL COMPANY
WV
Marfork
P500213
ELK RUN COAL COMPANY, INC.
WV
Marfork
P300415
KINGSTON MINING, INC.
WV
Marfork
P301513
MARFORK COAL COMPANY, INC.
WV
Marfork
Pending
MARFORK COAL COMPANY, INC.
WV
Marfork
U301394
MARFORK COAL COMPANY, INC.
WV
Marfork
P301011
MARFORK COAL COMPANY, INC.
WV
Marfork
S300809
MARFORK COAL COMPANY, INC.
WV
Marfork
E003800
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
S011977
PIONEER FUEL CORPORATION
WV
Marfork
S400596
PIONEER FUEL CORPORATION
WV
Marfork
S401595
PIONEER FUEL CORPORATION
WV
Marfork
O400708
PIONEER FUEL CORPORATION
WV
Martin County
E001700
GREYEAGLE COAL COMPANY
WV
Martin County
O013983
GREYEAGLE COAL COMPANY
WV
Nicholas
S005185
ALEX ENERGY, INC.
WV
Nicholas
S300199
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S006385
ALEX ENERGY, INC.
WV

7

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Nicholas
U302494
POWER MOUNTAIN COAL COMPANY
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S300907
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nichoasl
S301405
ALEX ENERGY, INC.
WV
Nicholas
S302003
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S301192
ALEX ENERGY, INC.
WV
Nicholas
S301806
ALEX ENERGY, INC.
WV
Nicholas
H015500
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O002184
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O004183
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300293
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300589
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O301286
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O302093
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S300590
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U300489
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U302194
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O010983
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S008776
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U026900
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U045800
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U065700
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U067600
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300895
POWER MOUNTAIN COAL COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rawl
D003181
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O507892
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U066700
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U507192
RAWL SALES & PROCESSING COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O504989
RAWL SALES & PROCESSING COMPANY
WV
Rawl
P057200
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rockspring
Prospect
LAUREL CREEK CO., INC.
WV

8

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Rockspring
U500601
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507292
ARACOMA COAL COMPANY, INC.
WV
Rockspring
S504689
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O501090
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507692
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U500304
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U501091
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U502006
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O505491
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
U002584
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
P501014
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
Pending
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
O503290
ROCKSPRING DEVELOPMENT, INC.
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
U501087
STIRRAT COAL COMPANY
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502408
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U301695
PERFORMANCE COAL COMPANY
WV
Twilight
U501295
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
O501496
ELK RUN COAL COMPANY, INC.
WV
Twilight
O507891
ELK RUN COAL COMPANY, INC.
WV
Twilight
U501198
ELK RUN COAL COMPANY, INC.
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV

9

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Twilight
S500398
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502396
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U502196
INDEPENDENCE COAL COMPANY, INC.
WV
Twin Star
S401197
TWIN STAR MINING, INC. - WV
WV
Unassigned
P500612
INDEPENDENCE COAL COMPANY, INC.
WV
White Flame
S501501
WHITE FLAME ENERGY, INC.
WV
White Flame
S502097
WHITE FLAME ENERGY, INC.
WV
Wabash
39
WABASH MINE HOLDING COMPANY
IL
Wabash
276
WABASH MINE HOLDING COMPANY
IL
Wabash
290
WABASH MINE HOLDING COMPANY
IL
Wabash
158
WABASH MINE HOLDING COMPANY
IL
Wabash
Prospect
WABASH MINE HOLDING COMPANY
IL
Wabash
298
WABASH MINE HOLDING COMPANY
IL
Coalgood
8480322
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480324
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480325
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485533
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487037
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487038
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487039
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488083
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488084
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489031
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489032
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
6805012
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800014
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800062
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800207
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805179
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805182
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805188
PETER CAVE MINING COMPANY
KY
Martin County
8805189
PETER CAVE MINING COMPANY
KY
Martin County
8805190
PETER CAVE MINING COMPANY
KY
Martin County
8807000
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807002
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808008
PETER CAVE MINING COMPANY
KY
Martin County
8808015
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808016
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808017
PETER CAVE MINING COMPANY
KY
Roxana
8675269
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
2985329
ISLAND CREEK COAL COMPANY
KY
Sidney
2985332
ISLAND CREEK COAL COMPANY
KY
Sidney
8365601
BELFRY COAL CORPORATION
KY
Sidney
8585079
BELFRY COAL CORPORATION
KY
Sidney
8980573
SIDNEY COAL COMPANY, INC.
KY

10

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Sidney
8984146
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984399
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984400
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984424
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984430
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8985167
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985736
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985742
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985977
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985986
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987025
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987094
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8988168
LONG FORK COAL COMPANY
KY
Sidney
8988170
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989156
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989159
LONG FORK COAL COMPANY
KY
Coalgood
8485532
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485535
HARLAN RECLAMATION SERVICES LLC
KY
Marnti County
8805187
MARTIN COUNTY COAL CORPORATION
KY
Roxana
8675272
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675279
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675280
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675282
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
8984029
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984194
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984431
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984433
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984434
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984435
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984436
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984496
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985739
SIDNEY COAL COMPANY, INC.
KY
Martin County
8805175
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805186
MARTIN COUNTY COAL CORPORATION
KY
Sidney
8980835
SIDNEY COAL COMPANY, INC.
KY
Sidney
8980932
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984095
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987082
SIDNEY COAL COMPANY, INC.
KY
Coalgood
8485536
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
8800215
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805147
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805180
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807001
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808010
MARTIN COUNTY COAL CORPORATION
KY
Rawl
8984439
NEW RIDGE MINING COMPANY
KY

11

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Roxana
8675268
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675278
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675283
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
4985319
ISLAND CREEK COAL COMPANY
KY
Sidney
6985333
ISLAND CREEK COAL COMPANY
KY
Sidney
8980639
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980914
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980915
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980947
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984223
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984418
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984432
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984437
LONG FORK COAL COMPANY
KY
Sidney
8985579
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985646
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985647
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985649
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985735
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985745
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985746
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985751
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989160
NEW RIDGE MINING COMPANY
KY
Twin Star
1101960
TWIN STAR MINING, INC.
VA
Twin Star
1101961
TWIN STAR MINING, INC.
VA
Twin Star
1101966
TWIN STAR MINING, INC.
VA
Twin Star
1101967
TWIN STAR MINING, INC.
VA
Twin Star
1101968
TWIN STAR MINING, INC.
VA
Twin Star
1101981
TWIN STAR MINING, INC.
VA
Twin Star
1201969
TWIN STAR MINING, INC.
VA
Twin Star
1201970
TWIN STAR MINING, INC.
VA
Twin Star
1201973
TWIN STAR MINING, INC.
VA
Twin Star
1301956
TWIN STAR MINING, INC.
VA
Twin Star
1301962
TWIN STAR MINING, INC.
VA
Twin Star
1801971
TWIN STAR MINING, INC.
VA
TCC
2475
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2904
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2885
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2664
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2957
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2982
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2725
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2710
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2882297
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82144
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2282293
TENNESSEE CONSOLIDATED COAL CO.
TN

12

RETAINED PERMITS FOR RECLAIM-ONLY SITES BY STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
TCC
82201
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82077
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2883130
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2283116
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82191
TENNESSEE CONSOLIDATED COAL CO.
TN


Exhibit 3
[Preliminary Reclamation Schedule]




13



Debtor ‐  Twin Star Mining Company ‐  Virginia DMLR 5 Year Reclamation Schedule

 
 
 
 
 
 
 
2016
2017
2018
2019
2020
Mine Name
Permit#
Type
Status
Current Bond
Description
Reclamation Details
Reclamation Projects
Reclamation Projects
Reclamation Projects
Reclamation Projects
Reclamation Projects
Twin Star Prep Plant
1301956
Surface
Idle
$
492,000

Abandoned preparation plant that is only a shell, currently being used as an equipment shop, includes main stockpile area which is mostly covered
ARO estimate based on
current conditions, CSMO / NPDES Renewal submitted
 
 
 
 
 
Long Branch-Eagle
1101960
Surface
Idle
$
546,000

Large surface permit, no valley fills because they are on adjacent permit, estimated 2,000 feet of open wall
ARO estimate is final pit
scenario,
progress reclaiming open highwall'
progress reclaiming open highwall'
progress reclaiming open highwall'
reclaim highwall, establish vegetation
highwall reclamation,
establish vegetation
Long Branch-Blair
1101961
Surface/HWM
primarily
Temporary
Cessation
$
1,735,400

Contour/HWM operation in TC status that expires 3/25/18 and under full-cost bond, plan to construct a BCR on this permit, 3,000 plus feet of open wall present
selenium treatment will be needed, mostly under Temporary Cessation, ARO estimate based on current conditions, TC expiration date is 3/25/18, $500K in selenium treatment CAPEX included in ARO estimate
construct seleniutm treatment system consisting of BCR passive treatment design, compliance schedule has full compliance date of 3/25/17, designed to be a
gravity system
 
 
 
highwall reclamation,
establish vegetation
Twin Star Mining, Inc. Load-Out
1301962
Surface
Idle
$
100,000

Existing truck dump and railroad loadout facilities
ARO estimate based on
current conditions
 
 
 
 
 
Lower Elk Creek Strip
1101966
Surface
partial
Temporary
Cessation
$
3,474,800

Large surface permit, going through renewal now and will have selenium compliance schedule, roads are intended to be permanent structures, a small amount of highwall remains
ARO estimate based on current conditions, CSMO / NPDES Renewal submitted, TC extension submitted, $1.2M in selenium treatment CAPEX included in ARO estimate, roads intended to be permanent
 
construct selenium
treatment
construct selenium
treatment
reclaim highwall, establish vegetation
 
Laurel Fork Strip
1101967
Surface
Phase II Release
$
35,400

Large surface permit, largely reclaimed, outlets have been removed
ARO estimated based on
current conditions, $510k in selenium treatment CAPEX
 
 
 
 
 
Lower Elk Creek Reserve
1101968
Surface
Phase I Release
$
163,200

Large surface permit, pursuing approval for mixing zone for selenium compliance, but still collecting data, 1 pond on permit
CSMO/NPDES Renewal submitted, ARO estimate on current conditions, $600K in selenium treatment CAPEX included in ARO estimate
 
construct selenium
treatment (likely a mixing zone system, but may
potentially require chemical treatment or a more advanced system)''
 
 
 
SG #1 Mine (Upper Elk Cr)
1201969
Deep
Reclaimed
$
48,000

Site is reclaimed, but water treatment is required
chemical treatment, ARO estimate on current
 
 
 
 
 
Long Branch Deep Mine
1201970
Deep
Reclaimed
$
40,000

Site is primarily reclaimed
iron water discharge; passive treatment, ARO estimate on
 
 
 
 
 
Twin Star Haulroad
1801971
Surface
Idle
$
60,200

Permitted to be permanent
ARO estimate based on
 
 
 
 
 
Sycamore Fork (Deep Mine)
1201973
Deep
Reclaimed
$
51,000

Site is primarily reclaimed
iron water mine discharge; passive treatment
 
 
 
 
 
Sycamore Strip
1011981
Surface
Idle
$
1,422,000

Large surface permit with valley fills and 6 ponds, minimal wall exposed, fill #1 needs work, recently been grading and hydroseeding where possible
ARO estimate is final pit
scenario, CSMO / NPDES Renewal recently approved with no selenium schedule, $250K in selenium treatment
CAPEX included in ARO estimate, but selenium limits expected when permit goes through renewal in 2018
breakdown and stabilize fill material, establish vegetation - This project will be alternated with 1960 permit as weather allows work in the fill
breakdown and stabilize fill material, establish vegetation - This project will be alternated with 1960 permit as weather allows work in the fill
breakdown and stabilize fill material, establish vegetation - This project will be alternated with 1960 permit as weather allows work in the fill
 
 
Highest Priority
 
 
 
 
 
 
 
 
 
 
 
Medium Priority
 
 
 
 
 
 
 
 
 
 
 




 
 
 
 
 
 
 
2016
2017
2018
2019
2020
Lower Priority
 
 
 
 
 
 
 
 
 
 
 
Temporary Cessation Proposed
 
 
 
 
 
 
 
 
 
 
 
'Some activities are weather dependent and will be alternated with tasks of less environmental impact when weather requires
 
 
 
 
 
 
''If active Se treatment is not required at 1968 permit then remaining dollars (after construction of alternate system) will be redirected to other priority projects for the year
 
 
 
 
 
 



Exhibit 10.19

FIRST AMENDMENT TO PERMITTING AND RECLAMATION PLAN SETTLEMENT
AGREEMENT FOR THE COMMONWEALTH OF VIRGINIA
THIS AMENDMENT (this “First Amendment”) is made and entered into this 23 rd of October, 2017 (the “Effective Date”), by and among ANR, Inc. on behalf of itself and its affiliates, including Old ANR, LLC (f/k/a Alpha Natural Resources, Inc.) (collectively (“ANR”), Contura Energy, Inc. (“Contura”) and the Virginia Department of Mines, Minerals and Energy (the “Department” and collectively with ANR and Contura, the “Parties”);

WHEREAS , on August 3, 2015 (the " Petition Date "), Old ANR, LLC (f/k/a Alpha Natural Resources, Inc,) and certain of its subsidiaries (the “Debtors”) each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the " Bankruptcy Code ") in the United States Bankruptcy Court for the Eastern District of Virginia (the " Bankruptcy Court "), which cases are being jointly administered under case number 15‑33896 (KRH) (collectively, the " Chapter 11 Cases ");
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the " Plan "), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Department has issued certain permits to ANR (collectively, the " Virginia Permits ") in connection with its operation and reclamation of certain mines and facilities (the " Twin Star Mining Complex ") within the Commonwealth of Virginia (the " Commonwealth ");
WHEREAS , on July 12, 2016, the Parties entered into a Permitting and Reclamation Plan Settlement Agreement for the Commonwealth of Virginia (the “Settlement Agreement”) to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in the Commonwealth on the Virginia Permits for the Twin Star Mining Complex;

WHEREAS , the Settlement Agreement requires ANR to establish and fund restricted cash accounts (“Restricted Cash Accounts”) for the purpose of ensuring the performance of the mine land reclamation and environmental restoration required by the Settlement Agreement;

WHEREAS , on July 12, 2016, the Parties and others also entered into a Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation, water treatment and management work to be done on various permits including the Virginia Permits at the Twin Star Mining Complex (the “Prior Reclamation Funding Agreement”);

WHEREAS , ANR is in general compliance with, and is continuing to perform its ongoing reclamation obligations in accordance with, the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. (" SMCRA "), its state


analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the " Mining Laws ");
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Virginia Permits, all of which relate to the Twin Star Mining Complex;
WHEREAS , ANR subsequently entered into an agreement to sell the assets of the Twin Star Mining Complex to a third-party buyer, CM Mining, LLC (“Purchaser”);

WHEREAS , after review of complete and appropriate permit transfer applications by the Purchaser, the Department has issued letters informing Purchaser of the amounts of bonds and fees due to effect permit transfer for some, but not all, of the Virginia Permits to the Purchaser; and
    
WHEREAS , the Parties desire to enter into this First Amendment (hereinafter, “Amended Settlement Agreement”) to define the terms and framework for funding and accomplishing mine land reclamation and associated environmental restoration in the Commonwealth after the Effective Date at the Twin Star Mining Complex operated under the Virginia Permits until the remaining Virginia Permits are either (i) transferred to the Purchaser, (ii) transferred to another third party, or (iii) fully reclaimed by ANR;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Plan. In addition to the terms defined elsewhere in this Settlement Agreement, the terms below have the following meanings herein:
(a)      " Affiliate " means "affiliate," as such term is defined in section 101(2) of the Bankruptcy Code.
(b)      " Applicant/Violator System " means (i) the nationwide database maintained by OSMRE of mine applicants, permittees, operators, application and permit records, as well as unabated or uncorrected environmental violations pursuant to SMCRA or (ii) the analogous database maintained by the Department pursuant to the Virginia Surface Coal Mining and Reclamation Act.
(c)      "" Event of Default " has the meaning ascribed to it in Section 9(a) hereof.
(d)      " Financial Assurance " means a Surety Bond or any of the alternatives thereto provided for under Va. Code Ann. § 45.1-241.
(e)      " First Lien Lenders " has the meaning given such term in the Plan.
(f)      " Free Cash Flow " means cash generated by ANR in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to ANR, plus an add-back of all depreciation and amortization expenses, plus or minus,

- 2 -

as applicable, any decrease or increase to ANR’s net working capital, minus capital expenditures, measured for any Quarterly Period.
(g)      " Fully Reclaim ," " Fully Reclaimed " or " Full Reclamation " means, as to any or all Virginia Permits, completion of reclamation as provided for under applicable Mining Laws.
(h)      "" Funding Threshold Amount " means the funded amount of the Restricted Cash Reclamation Account that is equal to 125% of the remaining Total Cost of Reclamation in Virginia.
(i)      Material Asset Sale " means a sale, in any single or related transaction, of Reorganized ANR assets, other than sales of coal in the ordinary course of business, generating $100,000 or more in net cash proceeds.
(j)      " OSMRE " means the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement.
(k)      " Quarterly Period " means a full calendar‑year quarter ending each March 31, June 30, September 30 and December 31; provided , however , that the first Quarterly Period after the Effective Date shall be deemed to run from the Effective Date through March 31.
(l)      " Prior Reclamation Funding Agreement " means the agreement, substantially in the form attached hereto as Exhibit 2 , by and among ANR, Contura, and the appropriate regulatory agencies of each of the States of Illinois, Tennessee (as administered by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia.
(m)      " Restricted Cash Accounts " means, collectively, the Restricted Cash Reclamation Account and the Water Treatment Restricted Cash Account.
(n)      " Restricted Cash Reclamation Account " means an interest bearing segregated deposit account in which the Department holds a first priority security interest, perfected by "control" under the Virginia Uniform Commercial Code into which funds are deposited pursuant to the terms of this Amended Settlement Agreement . For the avoidance of doubt, ANR may invest funds in the Restricted Cash Reclamation Account in overnight securities consistent with their cash management policy.
(o)      " Retained Bonds " means any reclamation bonds associated with the Virginia Permits, as existing on the date hereof.
(p)      " Surety Bond " means a corporate surety bond issued in accordance with Va. Code Ann. § 45.1-241.
(q)      " Third Party Beneficiaries " means the First Lien Lenders, their officers, directors, employees and advisors, and each of their Affiliates, successors and assigns.

- 3 -

(r)      “Total Cost of Reclamation " means the estimate of the total cost of reclamation, mitigation, and the calculated net present value of the cost of water treatment for the period of time specified by the Department’s standards for long‑term water treatment and management associated with the permits related to the Twin Star Mining Complex in Virginia held by ANR. For the avoidance of doubt, ANR’s proposed Total Cost of Reclamation for the Virginia Permits shall be reviewed by the Department for completeness and reasonableness of approach.
(s)      " Water Treatment Restricted Cash Account " has the meaning ascribed to it in the Reclamation Funding Agreement and in which the Department shall hold a first priority security interest, perfected by "control" under the Virginia Uniform Commercial Code. For the avoidance of doubt, ANR may invest funds in the Water Treatment Restricted Cash Account in overnight securities consistent with their cash management policy.
(t)      “Virginia Permits” means the permits issued by the Department where ANR is the current permittee.
2. Termination of Obligations Under Prior Reclamation Funding Agreement . Because the Prior Reclamation Funding Agreement requires, in relevant part, the funding of reclamation on the Virginia Permits in the Commonwealth of Virginia, and because it is anticipated that the Virginia Permits will be transferred to Purchaser, the obligations of the Parties under the Prior Reclamation Funding Agreement, as they relate to the Virginia Permits and the Commonwealth of Virginia, should be and are hereby terminated and replaced with the requirements set forth herein. The Parties will cooperate with the other parties to the Prior Reclamation Funding Agreement, including the Office of Surface Mining Reclamation and Enforcement, the Commonwealth of Kentucky, and the States of Illinois and West Virginia, to amend the Prior Reclamation Funding Agreement.
3. Continuation of Existing Bonds. All Retained Bonds shall remain in place until all Virginia Permits have transferred to the Purchaser.
4. Maintenance of the Restricted Cash Accounts.
(a)      The Restricted Cash Accounts previously established in accordance with the terms of the Settlement Agreement and the Prior Reclamation Funding Agreement, complete with deposit account control agreements in form and substance reasonably acceptable to the Department with respect to the establishment and use of the Restricted Cash Accounts, shall remain in place until the Virginia Permits have been transferred to the Purchaser.
(b)
Periodic Payments through December 2018 . The Reorganized Debtors shall fund the Restricted Cash Accounts as follows:
(i)
ANR shall pay $34,000.00 per month into the Restricted Cash for each month through December 2018.

- 4 -

(ii)
All such payments shall be made in equal monthly installments. ANR shall make the first payment on or before October 31, 2017 and the remaining payments on or before the last day of each subsequent month.
(c)
Periodic Payments from January 2019 through December 2022
(i)
If ANR still holds any of the Virginia Permits on March 1, 2018, it shall meet with the Department within thirty days to revise the amount of the monthly installments such that the Funding Threshold Amount shall be met by December 31, 2022 through the deposit of equal monthly installment payments beginning July 31, 2018.
(ii)
The amount of the new monthly payments shall be determined by using ANR’s Total Cost of Reclamation for the Virginia Permits then held by ANR, then subtracting the amount of funds then deposited in the Restricted Cash Accounts and then dividing the result by 48; provided that the Department must have reviewed and approved the Total Cost of Reclamation provided by ANR.
(iii)
A preliminary Total Cost of Reclamation for Virginia was submitted by July 1, 2017 for review and comment. A final Total Cost of Reclamation shall be provided to Virginia for review and comment by March 1, 2018 for any Virginia Permit still held by ANR.
(iv)
The Parties shall meet on an annual basis to review the Total Cost of Reclamation and may adjust the monthly payments to reflect any changes in the Total Cost of Reclamation or extra deposits resulting from collateral returns or asset sales as discussed below.
(d)
Surety Collateral Returns .
(i)
Any collateral returned or received by ANR from or with respect to any surety bond issuer that has issued bonds for the Twin Star Mining Complex in Virginia will be paid into the Restricted Cash Reclamation Account for Virginia.
(ii)
To the extent any collateral returned or received by the ANR from or with respect to any surety bond issuer whose bonds relate to permits in multiple States, such collateral shall be contributed to the Restricted Cash Reclamation Accounts for Virginia in proportion to collateral released on account of other states.

- 5 -

(e)
In the event of a merger or sale of all or substantially all of the assets of ANR, then its obligations under this paragraph shall either (i) be accelerated and paid in full on a net present value basis into the Virginia Restricted Cash Reclamation Accounts or (ii) be assumed by the purchaser or surviving entity, before or at the closing of such transaction. For the avoidance of doubt, nothing in this Section shall:
(iii)
limit or interfere with the Department’s exercise of discretion with respect to approving any permit transfer or other required regulatory approval; or
(iv)
alter or affect the obligations of the ANR or any of its successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
(f)
Except as may otherwise be agreed to by the Department and ANR, ANR shall deposit into the Restricted Cash Reclamation Account: (1) 50% of the net cash proceeds of any Material Asset Sale of the Virginia Permits or the Twin Star Complex with respect to which Material Asset Sale the net cash proceeds are $500,000 or more; and (2) 25% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the Commonwealth with respect to which Material Asset Sale the net cash proceeds are at least $100,000 but less than $500,000. For the avoidance of doubt, all proceeds of Material Asset Sales relating to the Twin Star Complex shall be subject to this Section 4(b)(ii), whether such assets are located in the portion of the Twin Star Mining Complex that is located in the Commonwealth or the portion that is located in the State of West Virginia.
(g)
Funding of ANR’s Water Treatment
Obligations Pursuant to the Water Treatment Stipulation
(i)
ANR will provide the Department (i) an annual summary of the expenditures on its water treatment associated with the Virginia Permits for the previous year, (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year.
(ii)
ANR shall make payments in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on January 1, 2018:

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Year
Payment Dates
Aggregate Annual Payment Amount
2018
January 1, April 1, July 1, October 1
$375,000
2019
January 1, April 1, July 1, October 1
$280,000
2020
January 1, April 1, July 1, October 1
$280,000
2021
January 1, April 1, July 1, October 1
$280,000
2022
January 1, April 1, July 1, October 1
$280,000
2023
January 1, April 1, July 1, October 1
$280,000
Total
 
$1,775,000
(iii)
The amounts above reflect twenty percent of the amounts pledged under Prior Reclamation Agreement for 2018 and two times the actual expenditures on water treatment from July 1, 2016 to June 30, 2017. ANR will track their spending on water treatment in each State and submit a report to the Department and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year.
(iv)
ANR will cooperate and work in good faith with each the Department to develop the minimum balance (the " Minimum Balance ") that will be maintained in the Water Treatment Restricted Cash Account for Virginia. The Minimum Balance may be adjusted by agreement between the ANR and the Department on an annual basis; provided that, nothing herein requires ANR to designate more than the amounts it has actually contributed pursuant to the Prior Reclamation Funding Agreement and this Amended Settlement Agreement. ANR shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for Virginia.
(v)
Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations, and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning, and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the paragraph 5(d)(iii) of the Settlement Agreement) provided to the Department and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the this Amended Settlement Agreement. EPA and

- 7 -

the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(vi)
The Department shall have the right to audit the Restricted Cash Accounts at any time and, in each case, upon reasonable notice to ANR.
5. Virginia Reclamation Compliance .
(a)
Obligation to Complete Reclamation .
(i)
ANR hereby continues to acknowledge its obligations to Fully Reclaim all of the Virginia Permits that are not transferred to Purchaser in accordance with all applicable state and federal laws, without any limitation relating to the amounts included in or required to be deposited or paid into the Restricted Cash Reclamation Account or the amount of any of the Surety Bonds or other Financial Assurance issued pursuant to or in accordance with this Amended Settlement Agreement.
(ii)
Reclamation of any Virginia Permits not transferred to Purchaser shall be complete or current by the seventh anniversary of the Effective Date of the Settlement Agreement.
(b)
Reclamation Agreements .
(i)
ANR and the Department shall, for any permit not transferred to Purchaser as of the date hereof, or to Purchaser or other third-party hereafter, remain bound by any agreement (the " Reclamation Agreement "), previously entered into pursuant to the Settlement Agreement.
(c)
Use of Funds in Restricted Cash Accounts .
(i)
Subject to the terms and provisions of this Amended Settlement Agreement, unless and until the Department delivers a notice pursuant to Section 9(c)(ii) hereof, ANR may use funds contributed to the Restricted Cash Accounts in the performance of their obligations to complete reclamation, mitigation (to the extent required under Virginia Permits issued by the Department) and water treatment and management only within the Commonwealth and only in accordance with the Virginia Permits and any applicable Reclamation Agreements; provided , however , that ANR may use funds in the Restricted Cash Accounts for mitigation under section 404 of the Clean Water Act only if agreed to by the Department.

- 8 -

(ii)
Upon the Department's delivery of a notice pursuant to Section 9(b) hereof, ANR’s right to use funds in the Restricted Cash Accounts shall immediately cease without further action on the part of the Department, the funds then contained in the Restricted Cash Accounts shall be deemed to constitute a cash bond (as provided for under Va. Code Ann. § 45.1-241) with respect to ANR’s performance of its obligations to reclaim, and manage and treat water at the Twin Star Mining Complex and the Department shall be entitled to execute upon its collateral pledge of any amounts held in or payable into the Restricted Cash Accounts in accordance with Section 9(c)(iii) hereof.
(iii)
Upon written confirmation from the Department confirming the Full Reclamation of the Virginia Permits and the release of the associated bonds, or the transfer of all Virginia Permits to Purchaser, any remaining funds in the Restricted Cash Accounts shall be delivered to ANR.
(d)
Budgeting and Accounting for Reclamation and Water Treatment .
(i)
ANR shall continue to follow any approved budget and account for reclamation and water treatment on the Virginia Permits not transferred to Purchaser as of the date of this Amended Settlement Agreement.
(ii)
On or before December 1, 2017, ANR shall provide to the Department a budget (the " Semi-Annual Budget "), subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from January 1, 2018 through June 30, 2018. ANR shall revise and update the Semi‑Annual Budget for each ensuing six‑month period by no later than 30 days prior to the conclusion of the current period (or on such schedule as may otherwise be agreed upon by the ANR and the Department).
(iii)
ANR shall provide to the Department accountings of its actual‑to‑budgeted expenditures from the Restricted Cash Accounts within 30 days after the end of each Quarterly Period. Such accountings shall be certified as to their accuracy by a senior officer of “ANR.
(iv)
ANR shall meet with the Department on a quarterly basis: (1) to review reclamation and water treatment progress, the Long‑Term Budget and the current Semi‑Annual Budget; (2) to provide updates on reclamation and water treatment spending from the

- 9 -

Restricted Cash Accounts; and (3) to discuss other matters relevant to their obligations to fund such accounts.
6. Other Provisions on Bonding and Reclamation .
(a)      Full Cost Bonding . ANR shall continue to maintain full cost bonding with respect to any Virginia Permits not transferred to Purchaser.
(b)      Other Permit Revisions, Modifications and Amendments. ANR may submit applications for revisions, modifications or amendments to the Virginia Permits not transferred to Purchaser as ANR may determine to be desirable or necessary to amend the terms and conditions of any Virginia Permit or to facilitate bond reduction, bond release and/or efficient and cost effective completion of reclamation. Any applications for revision, modification or amendment of the Virginia Permits will be advertised in accordance with applicable regulatory requirements and otherwise comply with applicable regulatory requirements. ANR and the Department agree to respond to comments received on any such application on a timely basis. ANR and the Department agree to cooperate and work in good faith with each other such that such Virginia Permit revisions, modifications or amendments are processed in a timely manner to facilitate the completion of reclamation in a manner consistent with any applicable Reclamation Agreement and applicable state and federal law.
(c)      Administrative Fee . ANR shall pay out of the Restricted Cash Reclamation Account an administrative fee to the Department to provide for the oversight of the budgeting, accounting and settlement implementation activities of the Department in the amount of $20,000 per annum, and pro-rated for any partial year, until this Amended Settlement Agreement terminates.
(d)      Access to Rejected Leasehold Properties .
(i)      Consistent with the order authorizing, among other things, the rejection of certain unexpired leases (Docket No. 2239) (the " Rejection Order ") and any similar order, ANR shall work with the lessors under rejected leases to obtain access to the applicable sites to complete reclamation or perform mitigation or water treatment (any such site, a " Rejected Lease Site ").
(ii)      The failure to obtain access shall not excuse ANR from complying with its reclamation, mitigation and water treatment obligations under applicable law.

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(e)      Consent Orders . ANR shall negotiate in good faith such consent orders as the Department shall deem necessary or appropriate to embody the terms of the Reclamation Agreement and this Amended Settlement Agreement.
7. Limitations on Certain Transactions .
(a)      Asset Sales . With respect to all Material Asset Sales of assets involving mining assets located in the Commonwealth or Virginia Permits, ANR shall provide reasonable notice of, and consult with the Department regarding, the proposed Material Asset Sale.
(b)      No Dividends . Until ANR has fulfilled its obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with this Amended Settlement Agreement, ANR, Inc., Alpha Natural Resource Holdings, Inc., and any other issuer of equity interests distributed to creditors under the Plan, other than the Purchaser or any of its subsidiaries, shall not make any distributions on account of any of their equity interests; provided , however , that nothing herein shall prohibit ANR from making payments or otherwise satisfying their obligations pursuant to the Plan with respect to the Reorganized ANR Contingent Revenue Payment.
(c)      For the avoidance of doubt, nothing in Section 7(a) hereof shall: (i) limit or interfere with the Department's exercise of discretion with respect to any required regulatory approval; (ii) alter or affect the obligations of ANR or any of its successors or assigns, as the case may be, to perform or complete reclamation of all of its permitted sites in accordance with any applicable Reclamation Agreement, consent decrees and this Amended Settlement Agreement; or (iii) apply to the Sale Transaction.
8. Releases .
(a)      The Releases provided in the Settlement Agreement shall remain in full force and effect.
9. Events of Default .
(a)      Each of the following shall constitute an "Event of Default" ANR under this Amended Settlement Agreement:
(i)      The failure of the ANR to timely contribute any amounts required to be contributed to the Restricted Cash Accounts in accordance with the this Amended Settlement Agreement within ten days after the contribution is due in accordance with the terms of this Amended Settlement Agreement;
(ii)      The failure of ANR to timely comply with their obligations in accordance with any Reclamation Agreement or any consent order with the Department;

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(iii)      ANR's actual expenditures from the Restricted Cash Accounts exceed their budgeted expenditures by the greater of 20% or $250,000 in the aggregate for any Quarterly Period; and
(iv)      ANR files a voluntary petition for relief under the Bankruptcy Code, or an involuntary petition is filed against ANR that is not dismissed within 60 days.
(b)      If an Event of Default occurs, the Department may provide notice to ANR of such Event of Default (the " Notice of Default "). ANR shall have until the date that is 30 days from the date of receipt of the Notice of Default (the " Cure Deadline ") to cure any Event of Default arising pursuant to Section 9(a) hereof.
(c)      Upon the occurrence of an Event of Default and its continuation until after the Cure Deadline, the Department may:
(i)      terminate this Amended Settlement Agreement;
(ii)      deliver a notice of termination of the right to use cash in the Restricted Cash Accounts and require that such funds be delivered to the Department;
(iii)      draw down on any letter of credit or other collateral posted pursuant to this Amended Settlement Agreement, including without limitation any funds in the Restricted Cash Accounts;
(iv)      revoke any or all of ANR’s permits in the Commonwealth, including the Virginia Permits and forfeit the amount of any bonds therefor; and/or
(v)      take any other regulatory or enforcement action permitted by law.
(d)      The Department shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of the Department of any right to take any action upon the occurrence of any Event of Default.
(e)      The termination of this Amended Settlement Agreement shall have no effect on the obligations of ANR hereunder, the obligations of ANRto Fully Reclaim all of their permitted Mining Sites in accordance with the Virginia Permits and all applicable state and federal laws and otherwise comply with applicable state and federal laws, or any of the releases granted under paragraph 8 of the Amended Settlement Agreement.
(f)      Without limiting any other provision of this Amended Settlement Agreement, nothing in this Section 9 shall be deemed or construed to limit or otherwise affect the authority or ability of the Department to issue notices of violation or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against

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ANR, the Purchaser or any other person or entity or in respect of any permits or mining sites in the Commonwealth, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g)      An Event of Default by ANR of the type described in Section 9(a) shall not be construed to require the Purchaser or Contura to cure such defaults or otherwise make the Purchaser or Contura liable for such defaults.
10.
Settlement Agreement and the Plan . In the event of a conflict between the terms of this Amended Settlement Agreement and the Plan with respect to the terms hereof, this Amended Settlement Agreement shall control.
11. Covenants, Cooperation and Good Faith Efforts.
(a)      Reclamation Agreement, Plans and Budgets . ANR and the Department agree to cooperate and work in good faith with each other to negotiate develop the Long‑Term Budget and the Semi‑Annual Budgets for the Virginia Permits not transferred to Purchaser such that reclamation, mitigation, and water treatment work is sequenced and that all of the aforementioned activities are otherwise conducted in a manner that (i) protects the public health and safety, (ii) complies with state and federal law and (iii) properly manages the available financial resources to help ensure the cost-effective and timely completion of Full Reclamation and the release of all bonds associated with such Virginia Permits.
(b)      Use of Resources. ANR and the Department agree to work in good faith with each other to ensure that the reclamation, mitigation, and water treatment work with respect to the Virginia Permits not transferred to Purchaser is sequenced and otherwise conducted in a manner that maximizes the reclamation work that can be completed with the resources available.
(c)      Timely Reclamation. While ANR is performing the reclamation, mitigation, and water treatment obligations under the Virginia Permits not transferred to Purchaser in accordance with their time frames and provisions of any applicable Reclamation Agreements or consent orders, the Department shall take no action to forfeit the reclamation bonds relating to such Virginia Permits or issue any notice of noncompliance or cessation order based solely on a failure to undertake reclamation in a timely manner. For the avoidance of doubt, nothing herein affects the rights of the Department to take all enforcement actions consistent with applicable Commonwealth and federal law on any Virginia Permits for any other violation.
12. Incidental Permit Transfers and Phased Bond Releases.
(a)      Permit Transfers Incident to Restructuring Transactions. The Plan contemplates that the Debtors will modify the corporate form of certain of the Debtors and establish one or more new ultimate parent entities of the Debtors (collectively, the " Restructuring Transactions "). To the extent the Restructuring Transactions, as a

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technical matter, may require updates or modifications of the Virginia Permits that constitute permit transfers under applicable law, ANR and the Department agree to cooperate and work in good faith with each other to effectuate such updates, modifications or transfers upon ANR’s application therefor.
(b)      Phased Bond Releases. Upon submittal of appropriate replacement bonds to the Department, any corresponding reclamation bonds originally issued to the Debtors with respect to such Transferred Permits will be released in accordance with the standard permit procedures under applicable Commonwealth and federal law.
13. Third Party Beneficiaries. The Parties acknowledge and agree that the Third Party Beneficiaries are intended to be and hereby are acknowledged to be the sole third party beneficiaries of this Amended Settlement Agreement. The Parties acknowledge and agree that the Third Party Beneficiaries have no duty of performance under this Amended Settlement Agreement to any Party. Notwithstanding anything to the contrary herein, subject to the occurrence of the Effective Date, all of the provisions of this Amended Settlement Agreement expressly or impliedly inuring to the benefit of the Third Party Beneficiaries shall survive the expiration, termination or the supersession of this Amended Settlement Agreement, in each case for any reason, and shall remain fully effective for the benefit of the Third Party Beneficiaries and fully enforceable by the Third Party Beneficiaries against each Party notwithstanding such expiration, termination or superseding cause. The Parties acknowledge and agree that, except as explicitly set forth in this Section, nothing in this Amended Settlement Agreement is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein).
14. Successors and Assigns. The provisions of this Amended Settlement Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.
15. Entire Agreement. This Amended Settlement Agreement, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.
16. Governing Law. This Amended Settlement Agreement shall be governed by and construed under the laws of the Commonwealth without regard for the conflict of laws provisions thereof.
17. Authority and Validity . Each Party otherwise represents, warrants and acknowledges, as of the Effective Date that: (a) it has all the requisite authority (i) to execute and deliver this Amended Settlement Agreement and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Amended Settlement Agreement and the other documents and instruments

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contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) such Party's execution and delivery of, and performance under, this Amended Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Amended Settlement Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Amended Settlement Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Amended Settlement Agreement; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Amended Settlement Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
18. No Reliance. Each Party represents and warrants that in entering into this Amended Settlement Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Amended Settlement Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
19. Modification or Amendment. This Amended Settlement Agreement may be modified or amended only by written agreement executed by each of the Parties and, with regards to any provision impacting the First Lien Lenders or the First Lien Agent, the written consent of the First Lien Lenders or the First Lien Agent, as applicable.
20. Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Amended Settlement Agreement and to consummate the transactions contemplated hereby and thereby.
21. Construction. This Amended Settlement Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Settlement Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Amended Settlement Agreement were negotiated at arms'-length, and this Settlement Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Amended Settlement Agreement and the Plan, the terms of this Amended Settlement Agreement shall govern.
22. Headings. Titles and headings in this Amended Settlement Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Amended Settlement Agreement.

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23. Execution in Counterpart. This Amended Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Amended Settlement Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
24. Severability. If any provision of this Amended Settlement Agreement is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(Remainder of Page Intentionally Blank; Signatures to Follow)


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IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.



ANR INC.,
on behalf of itself and its affiliates
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
 
 
 
/s/ Andrew B. McCallister
 
/s/ John Warren
By: Andrew B. McCallister
 
By: /s/ John Warren
Its: Senior Vice President, General Counsel and Secretary
 
Its: Director
 
 
 
 
 
CONTURA ENERGY, INC.
 
OLD ANR, LLC (F/K/A ALPHA NATURAL RESOURCES, INC.)
 
 
 
 
 
 
/s/ Mark M. Manno
 
/s/ Andrew B. McCallister
By: Mark M. Manno
 
By: Andrew B. McCallister
Its: EVP, General Counsel, Secretary & CPO
 
Its: Senior Vice President, General Counsel and Secretary
 

Exhibit 10.20
EXECUTION VERSION

PERMITTING AND RECLAMATION PLAN SETTLEMENT
AGREEMENT FOR THE STATE OF WEST VIRGINIA
THIS AGREEMENT (as it may be amended or modified from time to time, this “ Settlement Agreement ”) is made and entered into as of July 12, 2016, by and among Alpha Natural Resources, Inc. (“ANR”), on behalf of itself and its debtor-affiliates (collectively with ANR, the “ Debtors ” or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the “ Reorganized Debtors ”), Contura Energy, Inc. (the “ Purchaser ”) and the West Virginia Department of Environmental Protection (the “ Department ” and, collectively with the Debtors and the Purchaser, the “ Parties ”).
WHEREAS, on August 3, 2015 (the “ Petition Date ”), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the “ Chapter 11 Cases ”);
WHEREAS , on December 7, 2015, the Debtors and the Department entered into a consent order (the “ Consent Order ”), a copy of which is attached as Annex I to the Order Concerning Reclamation Bonding of the Debtors’ Surface Coal Mining Operations in West Virginia (Docket No. 1158), providing for the Debtors’ satisfaction of their statutory reclamation bonding requirements in the State of West Virginia (the “ State ”) during the Chapter 11 Cases;
WHEREAS , the Debtors are in general compliance with, and are continuing to perform their ongoing reclamation obligations in accordance with, the Consent Order;
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the “Plan”), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Department has issued certain permits to the Debtors (collectively, the “ West Virginia Permits ”) in connection with the Debtors’ operation and reclamation of certain mines and facilities (collectively, the “ Mining Complexes ”) within the State;
WHEREAS , the Debtors are parties to a transaction (the “ Sale Transaction ”) pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith) with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date (as it may be modified, supplemented or amended, the “APA”) providing for (a) the sale of certain of the Debtors’ assets (collectively, the “ Purchased Assets ”) to the Purchaser, (b) the assumption of certain of the Debtors’ liabilities by the Purchaser, (c) the transfer of certain permits, including certain of the West Virginia Permits (collectively, the “ Transferred Permits ”), to the Purchaser and (d) certain transactions necessary to effectuate the foregoing;




WHEREAS , the Purchased Assets include certain of the Debtors’ assets related to the Nicholas Mining Complex in the State, among other assets;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors’ coal mining assets that are not sold pursuant to the Sale Transaction (collectively, the “ Retained Assets ”);
WHEREAS , the Retained Assets include certain of the Debtors’ assets related to the Bandmill, Black Bear/Ben’s Creek, Cucumber, Delbarton, Elk Run, Erbacon, Goals/Edwidge, Green Valley, Inman/Admiral, Kepler, Kingston, Litwar, Mammoth, Marfork, Rawl, Revolution Mine/Independence, Rock Springs, Superior Mine, Twilight Surface Mine, Twin Star (portion in West Virginia), Wildcat and White Flame Surface Mine Mining Complexes in the State, among other assets;
WHEREAS , the primary purpose of the Reorganized Debtors will be to hold the permits associated with the Retained Assets – including the West Virginia Permits other than the Transferred Permits (collectively, the “ Retained Permits ”) – that have mining operations: (a) with only reclamation activities to be completed (collectively, the “ Reclaim-Only Sites ”), and to manage the reclamation activities at the Reclaim-Only Sites; (b) where coal currently is being mined and is expected to be mined in the future (collectively, the “ Active Sites ”) and to manage and operate the Active Sites; (c) where coal currently is not being mined due to market considerations but may be mined in the future (collectively, the “ Inactive Sites ”) and to manage and potentially to operate the Inactive Sites; and (d) where mining has not been started but may be started in the future (collectively, the “ Not Started Sites ”). The Active Sites, Inactive Sites, Reclaim-Only Sites and the Not Started Sites shall be referred to collectively herein as the “ Mining Sites ” ;
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Retained Permits and categorizing each of the Retained Permits as an Active Site, an Inactive Site, a Reclaim-Only Site or a Not Started Site;
WHEREAS , the Parties desire to enter into this Settlement Agreement to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in the State in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. (“SMCRA”), its State analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the “ Mining Laws ”) on Mining Complexes operated under West Virginia Permits previously issued to ANR and its subsidiaries;
WHEREAS , the terms of this Settlement Agreement are incorporated into the Plan, and the Parties intend that this Settlement Agreement shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:

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1.     Definitions. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Plan. In addition to the terms defined elsewhere in this Settlement Agreement, the terms below have the following meanings herein:
(a)    “ Active Sites Commitment Letter ” means a written commitment from a qualified surety company licensed to do business in West Virginia pursuant to which the surety company agrees to provide acceptable Surety Bonds for all Self-Bonded Active Sites as soon as practicable, but no later than the 30 days after the Effective Date of the Plan.
(b)    “ Affiliate ” means “affiliate,” as such term is defined in section 101(2) of the Bankruptcy Code.
(c)    “ Applicant/Violator System ” means (i) the nationwide database maintained by OSMRE of mine applicants, permittees, operators, application and permit records, as well as unabated or uncorrected environmental violations pursuant to SMCRA or (ii) the analogous database maintained by the Department pursuant to the West Virginia Surface Coal Mining and Reclamation Act.
(d)    “ Cash Bond ” means a Collateral Bond of the kind identified in the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-11.3.b.1.A. - 11.3.b.1.D.
(e)    “ Collateral Bond ” means a collateral bond issued in accordance with the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-11.3.b.
(f)    “ Change in Control ” means the occurrence of any of the following events at any time subsequent to the distribution of the Reorganized ANR Common Stock pursuant to the Plan: any “person” or “group” (for purposes of this definition, as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), shall own directly or indirectly, beneficially or of record, capital stock representing over 50% of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding capital stock of ANR, Inc. or Alpha Natural Resource Holdings, Inc.
(g)    “ Effective Date ” means the date upon which the Plan shall become effective in accordance with its terms.
(h)    “ Event of Default ” has the meaning ascribed to it in Section 9(a) hereof.
(i)    “ First Lien Lenders ” has the meaning given such term in the Plan.
(j)    “ Free Cash Flow ” means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as applicable, any decrease or increase to the Reorganized Debtors’ net working capital, minus capital expenditures, measured for any Quarterly Period.

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(k)    “ Fully Reclaim, ” “ Fully Reclaimed ” or “ Full Reclamation ” means, as to any or all Retained Permits, “Completion of Reclamation” as defined in the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-2.37.
(l)    “ Letter of Credit ” means a letter of credit issued in accordance with the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-11.3.b.1.G.
(m)    “ Material Asset Sale ” means a sale, in any single or set of related transaction(s), of any assets of any of the Reorganized Debtors, other than sales of coal in the ordinary course of business, generating $100,000 or more in net cash proceeds.
(n)    “ OSMRE ” means the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement.
(o)    “ Quarterly Period ” means a full calendar-year quarter ending each March 31, June 30, September 30 and December 31; provided, however, that the first Quarterly Period after the Effective Date shall be deemed to run from the Effective Date through September 30.
(p)    “ Penal Bond ” means a bond issued in accordance with W. Va. Code R. § 38-2-11.3, other than a bond issued pursuant to W. Va. Code R. § 38-2-11.3.d.
(q)    “ Pool Bond ” has the meaning ascribed to it in Section 3(c)(ii) hereof.
(r)    “ Reclamation Agreement ” means, individually and collectively, the Global Reclamation Agreement and any Site Reclamation Agreement, as defined in Section 5(b) hereof.
(s)    “ Reclamation Funding Agreement ” means the agreement, substantially in the form attached hereto as Exhibit 2, by and among the Debtors, for and on behalf of themselves and the Reorganized Debtors, the Purchaser and the appropriate regulatory agencies of each of the States of Illinois, Tennessee (as administered by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia.
(t)    “ Restricted Cash Accounts ” means, collectively, the Restricted Cash Reclamation Account and the Water Treatment Restricted Cash Account.
(u)    “ Restricted Cash Reclamation Account ” means an interest bearing segregated deposit account in which the Department shall hold a first priority security interest, perfected by “control” under the Uniform Commercial Code of West Virginia into which funds are deposited pursuant to Sections 2, 4 and 5 of the Reclamation Funding Agreement. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Restricted Cash Reclamation Account in overnight securities consistent with their cash management policy.
(v)    “ Retained Bonds ” means any reclamation bonds associated with the Retained Permits, as existing on the date hereof.

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(w)    “ Self-Bond ” means a bond issued in accordance with the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-11.3.d.
(x)    “ Self-Bonded ” means subject to a Self-Bond.
(y)    “ Surety Bond ” means a surety bond issued in accordance with the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-11.3.a.
(z)    “ Third Party Beneficiaries ” means the First Lien Lenders, their officers, directors, employees and advisors, and each of their Affiliates, successors and assigns.
(aa)    “ Water Treatment Restricted Cash Account ” has the meaning ascribed to it in the Reclamation Funding Agreement and in which the Department shall hold a first priority security interest, perfected by “control” under the Uniform Commercial Code of West Virginia. For the avoidance of doubt, the Reorganized Debtors may invest funds in the Water Treatment Restricted Cash Account in overnight securities consistent with their cash management policy.
2.     Operation of Mining Sites. Subject to the issuance of further orders of the Department, the Department agrees that the Reorganized Debtors may: (a) continue to mine coal, or commence coal mining operations, as applicable, at the Active Sites, Inactive Sites and Not Started Sites subject to the provision of Surety Bonds with respect to each such Mining Site; and (b) remove coal incidental to their reclamation activities at the Reclaim-Only Sites, as authorized in accordance with any Reclamation Agreements.
3.     Provision of Bonding and Other Financial Assurance.
(a)     Continuation of Existing Bonds. All Retained Bonds shall remain in place or, with respect to any currently posted commercial Retained Bond, shall be replaced with Surety Bonds or other financial assurance reasonably acceptable to the Department of an identical amount.
(b)     Posting of Bonds for Active and Inactive Sites .
(i)    The Reorganized Debtors shall post Penal Bonds for all Active Sites and Inactive Sites in the amount determined in accordance with applicable State law and rules, as follows:
(1)    On or before the Effective Date, the Debtors shall secure and provide to the Department the Active Sites Commitment Letter;
(2)    The Reorganized Debtors shall have in place and posted with the Department Surety Bonds, Cash Bonds or Letters of Credit for all Active Sites within 30 days after the Effective Date; and

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(3)    Within 180 days of the Effective Date, the Reorganized Debtors shall have in place and posted with the Department Surety Bonds or other acceptable forms of Penal Bonds for all Inactive Sites.
(ii)    Unless the Retained Permits associated with the Not Started Sites have been terminated or relinquished prior to the Effective Date, all Not Started Sites shall be deemed to be “Inactive Sites” for purposes of this Section 3 and shall be either (1) bonded with Surety Bonds or other acceptable forms of Penal Bonds within 30 days of the Effective Date or (2) deemed terminated and relinquished on and as of the 31st day after the Effective Date.
(iii)    If and to the extent that the Self-Bonds at Active and Inactive Sites have not been replaced with Surety Bonds or other acceptable forms of Penal Bonds as contemplated in Sections 3(b)(i)(2), 3(b)(i)(3) and 3(b)(ii) above on or before the Effective Date, the Reorganized Debtors shall place in escrow an amount of cash equal to: (1) the amount of collateral required to collateralize bonds not yet issued pursuant to the Active Sites Commitment Letter; (2) the amount of remaining collateral previously allocated by the Debtors and the First Lien Lenders to obtain bonds for the Active Sites and Inactive Sites; and (3) an additional $10,000,000 or such lesser amount as may be necessary to provide a Cash Bond for all Active and Inactive Sites, including any Not Started Sites that are deemed to be “Inactive Sites,” for which a Surety Bond has not then been posted (the “ Interim Contribution ”), which Interim Contribution shall be payable to the Department as a Cash Bond in the event that the Reorganized Debtors fail to bond all Active and Inactive Sites within the timeframes provided above. To the extent payable, the Interim Contribution shall be in addition to all other funding provided by the Reorganized Debtors and the Purchaser pursuant to this Settlement Agreement and the Reclamation Funding Agreement and shall be set aside from funds that otherwise would be distributed to the First Lien Lenders under the Plan. The Reorganized Debtors may use the funds held in escrow to obtain Surety Bonds or Collateral Bonds for the Active Sites and Inactive Sites. If, at any time, the amount of Self-Bonds outstanding at Active Sites and Inactive Sites, including any Not Started Sites that are deemed to be “Inactive Sites,” is less than the amount of the Interim Contribution, the Reorganized Debtors shall remit the difference to the First Lien Agent so long as such difference is at least $250,000. Once all Self-Bonds at the Active Sites and Inactive Sites, including any Not Started Sites that are deemed to be “Inactive Sites,” have been replaced with Surety Bonds or other acceptable Penal Bonds, the Reorganized Debtors shall remit the remaining amount of the Interim Contribution to the First Lien Agent.
(iv)    The Debtors and the Department have reviewed their records and evaluated the current amounts of the self-bonded obligations at the Active, Inactive and Not Started Sites that are required to be bonded pursuant to this Section 3(b). The Parties agree that Exhibit 1 accurately sets forth the current aggregate amounts of those self-bonded obligations and that the aggregate amount

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of the bonding obligations at those sites may be increased only in accordance with the Mining Laws at the time of mid-term permit review or permit renewal, unless the Debtors or the Reorganized Debtors have previously submitted an increase in the bond amount prior to the posting of Penal Bonds in accordance with this Section 3(b).
(v)    In the event that the Reorganized Debtors decide to commence or recommence mining operations at any Reclaim-Only Site, they may do so only upon posting Surety Bonds or other acceptable forms of Penal Bonds and compliance with all other applicable Mining Laws with respect to such Reclaim-Only Site.
(c)     Posting of Additional Financial Assurance .
(i)    On or before the Effective Date, the Reorganized Debtors shall post an additional $24,000,000 in financial assurance in the form of a Cash Bond or Letter of Credit with the West Virginia State Treasurer’s Office for any and all sites located in the State that will be covered by a Self-Bond on and after the Effective Date.
(ii)    The Cash Bond or Letter of Credit issued pursuant to
Section 3(c)(i) hereof shall be in addition to the existing $15,000,000 Letter of Credit posted pursuant to the Consent Order, which Letter of Credit shall remain in full force and effect or be substituted by a replacement Letter of Credit or Cash Bond on terms in accordance with applicable West Virginia law and acceptable to the Department, it being agreed that the terms of the existing Letter of Credit are acceptable. The Cash Bond or Letter of Credit issued pursuant to Section 3(c)(i) hereof and such existing Letter of Credit and any replacement Letter of Credit or Cash Bond are referred to herein as the “ Pool Bond. ”
(iii)    Until the Reorganized Debtors have replaced all Self-Bonds with Penal Bonds that satisfy applicable law, the Pool Bond will remain in place and may be drawn down and applied by the Department in whole or in part upon its revocation of any of the issued and outstanding Self-Bonded Retained Permits and declaration of forfeiture and demand for payment of the associated Self-Bond(s).
(iv)    The Pool Bond shall be returned by the Department to the Reorganized Debtors when all Self-Bonded Mining Sites have been covered by Penal Bonds in accordance with West Virginia law or Fully Reclaimed, whichever comes first. For the avoidance of doubt, nothing herein shall prevent the Reorganized Debtors from converting the Pool Bond into site-specific Penal Bonds when the aggregate amount of reclamation obligations at the Self-Bonded Mining Sites has been reduced to $39,000,000 or lower.

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(d)     Reduction in Self-Bonded Reclamation Obligations . The Reorganized Debtors shall reduce the existing Self-Bonded obligations with respect to Reclaim-Only Sites as of the Effective Date by: (i) 25% of the initial amount of the Self-Bonded obligations on such Mining Sites by December 31, 2020; (ii) 50% of the initial amount of the Self-Bonded obligations on such Mining Sites by December 31, 2023; and (iii) 100% of the initial amount of the Self-Bonded obligations on such Mining Sites by the tenth anniversary of the Effective Date, by which time the remaining Retained Permits on the Reclaim-Only Sites shall be fully bonded with Penal Bonds in the amount determined in accordance with applicable State law and rules. The calculation of the required reduction in Self-Bonds shall not take into account any existing Penal Bonds or the amount of the Pool Bond until the aggregate amount of Self-Bonds is less than $39,000,000, and the Pool Bond has been converted to site-specific Penal Bonds.
(e)     Reaffirmation and Collateralization of Self-Bonds and Guaranties .
(i)    Except to the extent replaced by Penal Bonds in accordance with the terms and provisions of this Settlement Agreement, the Debtors, for and on behalf of themselves and the Reorganized Debtors, reaffirm all of their remaining Self-Bonds existing on the Effective Date of the Plan and shall, as reasonably requested by the Department on and after the Effective Date, submit revised applications for any remaining Self-Bonds.
(ii)    ANR, for and on behalf of itself and Reorganized ANR, hereby reaffirms its obligations under the Self-Bond Corporate Guarantee dated December 13, 2012 (the “ Guarantee ”), a copy of which is attached hereto as Exhibit 3 , and the Reorganized Debtors shall, as reasonably requested by the Department on and after the Effective Date, provide new guaranties of all Self-Bonds remaining in existence.
(iii)    The Plan provides that Alpha Natural Resources Holdings, Inc. and ANR, Inc. will be established pursuant to the Plan and shall replace Reorganized ANR as the holding companies for the equity interests of the Reorganized Debtors from and after the Effective Date. On and as of the Effective Date, ANR, Inc. shall, in connection with the Restructuring Transactions, assume the obligations of Reorganized ANR under the Guarantee, and both Alpha Natural Resources Holdings, Inc. and ANR, Inc. shall, on the Effective Date, execute guaranties, substantially in the form of the Guarantee, of all Self-Bonds remaining in existence on and after the Effective Date.
(iv)    All remaining Self-Bonds and the existing and new guaranties shall be secured by: (1) the Pool Bond; (2) the funds in the Restricted Cash Accounts; and (3) all other Collateral (as defined in the Security Agreement); provided , however , that the Reorganized Debtors’ obligations under any remaining Self-Bonds and the obligations of each of the guarantors shall not be limited by the existence or amount of such collateral. On the Effective Date, the Debtors or the Reorganized Debtors shall execute and deliver to the Department a

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collateral security agreement, substantially in the form attached hereto as Exhibit 4 (the “ Security Agreement ”).
4.     Establishment and Funding of the Restricted Cash Accounts.
(a)    On or prior to the Effective Date, the Debtors or the Reorganized Debtors shall establish the Restricted Cash Accounts in accordance with the terms of this Settlement Agreement and the Reclamation Funding Agreement and shall execute and deliver to the Department a deposit account control agreement in form and substance reasonably acceptable to the Department with respect to the establishment and use of the Restricted Cash Accounts.
(b)    The Reorganized Debtors shall fund the Restricted Cash Accounts as follows:
(i)    The Reorganized Debtors shall deposit into the Restricted Cash Accounts all funds required to be paid or deposited to the State in accordance with the Reclamation Funding Agreement.
(ii)    Except as may otherwise be agreed to by the Department and the Reorganized Debtors, the Reorganized Debtors shall deposit into the Restricted Cash Reclamation Account: (1) 50% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the State with respect to which Material Asset Sale the net cash proceeds are $500,000 or more, provided, however, that the amount to be deposited shall be reduced on a dollar-for-dollar basis by the amount of any Self-Bonded reclamation obligations on Reclaim-Only Sites that are assumed by the applicable purchaser, provided further, however, that the amount of net cash proceeds contributed to the Restricted Cash Reclamation on account of any Material Asset Sale of Retained Assets in the State shall be not less than 25% of such net cash proceeds; and (2) 25% of the net cash proceeds of any Material Asset Sale of any Retained Asset or group of Retained Assets located in the State with respect to which Material Asset Sale the net cash proceeds are at least $100,000 but less than $500,000.
(iii)    Any collateral returned to or received by the Reorganized Debtors by, from or with respect to any issuer of any Surety Bond(s) issued in the State shall, with the Department’s prior approval, either be deposited in the Restricted Cash Reclamation Account or used to provide acceptable financial assurance for Reclaim-Only Sites that are still covered by a Self-Bond.
(c)    All funds deposited into the Restricted Cash Accounts may be used solely to fund reclamation, mitigation and water treatment and management obligations in the State in accordance with the terms of this Settlement Agreement and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement.

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(d)    The Department shall have the right to audit the Restricted Cash Accounts at any time and from time to time, in each case upon reasonable notice to the Reorganized Debtors.
5.     West Virginia Reclamation Compliance.
(a)    Obligation to Complete Reclamation.
(i)    The Reorganized Debtors hereby acknowledge their obligations to Fully Reclaim all of their permitted Mining Sites in accordance with the Retained Permits and all applicable state and federal laws, without any limitation relating to the amounts included in or required to be deposited or paid into the Restricted Cash Accounts, the amount of any of the Penal Bonds or the Pool Bond issued pursuant to or in accordance with this Settlement Agreement or the liens granted pursuant to the Security Agreement.
(ii)    Reclamation of all Reclaim-Only Sites shall be complete or current by the tenth anniversary of the Effective Date.
(b)     Reclamation Agreements .
(i)    Within 90 days after the Effective Date, the Reorganized Debtors and the Department shall enter into a “ Global Reclamation Agreement ” pursuant to which, among other things, the parties thereto shall establish: (1) a schedule of priority for reclamation, mitigation and water treatment and management; and (2) a detailed reclamation and water treatment schedule with respect to all of the Reorganized Debtors’ Reclaim-Only Sites.
(ii)    To the extent necessary or appropriate, the Reorganized Debtors and the Department shall negotiate in good faith and use reasonable best efforts to enter into site-specific reclamation agreements (collectively, the “ Site Reclamation Agreements ”) with respect to any Reclaim-Only Site, subject to the Department’s permit modification procedures, as and to the extent required or appropriate.
(iii)    Any of the Reclamation Agreements may provide that the Reorganized Debtors and their assignees may continue to mine coal incidental to reclamation as authorized in accordance with their terms.
(c)     Use of Funds in Restricted Cash Accounts .
(i)    Subject to the terms and provisions of this Settlement Agreement and, with respect to funds in the Water Treatment Restricted Cash Account, the Reclamation Funding Agreement and unless and until the Department delivers a notice pursuant to Section 9(c)(ii) hereof, the Reorganized Debtors may use funds contributed to the Restricted Cash Accounts in the performance of their obligations to complete reclamation, mitigation (to the extent required under West Virginia Permits issued by the Department) and water treatment and management

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only within the State and only in accordance with the West Virginia Permits and any applicable Reclamation Agreements; provided, however, that such funds shall be used first to reclaim, mitigate and treat and manage water at Reclaim-Only Sites until all such Mining Sites have been Fully Reclaimed and then at any other Mining Sites; and provided, further, that the Reorganized Debtors may use funds in the Restricted Cash Accounts for mitigation under section 404 of the Clean Water Act only if agreed to by the Department.
(ii)    Upon the Department’s delivery of a notice pursuant to Section 9(c)(ii) hereof, the Reorganized Debtors’ right to use funds in the Restricted Cash Accounts shall immediately cease without further action on the part of the Department, the funds then contained in the Restricted Cash Accounts shall be deemed to constitute a Cash Bond with respect to the Reorganized Debtors’ performance of their obligations to reclaim and manage and treat water at their Reclaim-Only Sites, and the Department shall be entitled to execute upon its collateral pledge of any amounts held in or payable into the Restricted Cash Accounts in accordance with Section 9(c)(iii) hereof, the Security Agreement or any applicable deposit account control agreement.
(iii)    Upon written confirmation from the Department confirming the Full Reclamation of the Retained Permits and the release of the associated bonds, any remaining funds in the Restricted Cash Accounts shall be delivered to the Reorganized Debtors; provided, however, that the Reorganized Debtors shall not be entitled to the return of any funds paid or payable to the State from the Restricted Cash Accounts upon forfeiture of any Self-Bonds, it being understood that the funds so forfeited shall constitute a penal bond.
(d)     Budgeting and Accounting for Reclamation and Water Treatment .
(i)    Within 45 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from the Effective Date through December 31, 2016.
(ii)    Within 120 days after the Effective Date, the Reorganized Debtors shall provide to the Department an initial budget, based on the Global Reclamation Agreement, reflecting the Reorganized Debtors’ reasonable best efforts to project estimated expenditures from the Restricted Cash Accounts on account of reclamation, mitigation and water treatment and management expenses at all Reclaim-Only Sites through December 31, 2018 (the “ Long-Term Budget ”).
(iii)    On or before December 1, 2016, the Reorganized Debtors shall provide to the Department a budget (the “ Semi-Annual Budget ”), subject to approval by the Department, with respect to any reclamation, mitigation and water treatment and management to be performed using monies in the Restricted Cash Accounts during the period from January 1, 2017 through June 30, 2017.

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The Reorganized Debtors shall revise and update the Semi-Annual Budget for each ensuing six-month period by no later than 30 days prior to the conclusion of the current period (or on such schedule as may otherwise be agreed upon by the Reorganized Debtors and the Department).
(iv)    The Reorganized Debtors shall provide to the Department accountings of its Free Cash Flow and actual-to-budgeted expenditures from the Restricted Cash Accounts within 30 days after the end of each Quarterly Period. Such accountings shall be certified as to their accuracy by a senior officer of the Reorganized Debtors.
(v)    The Reorganized Debtors shall meet with the Department on a quarterly basis: (1) to review reclamation and water treatment progress, the Long-Term Budget and the current Semi-Annual Budget; (2) to provide updates on reclamation and water treatment spending from the Restricted Cash Accounts; and (3) to discuss other matters relevant to their obligations to fund such accounts.
6.     Other Provisions on Bonding and Reclamation.
(a)     Other Permit Revisions, Modifications and Amendments. The Reorganized Debtors may submit applications for revisions, modifications or amendments to the Retained Permits as the Reorganized Debtors may determine to be desirable or necessary to amend the terms and conditions of any Retained Permit or to facilitate bond reduction, bond release and/or efficient and cost effective completion of reclamation. Any applications for revision, modification or amendment of the Retained Permits will be advertised in accordance with applicable regulatory requirements and otherwise comply with applicable regulatory requirements. The Reorganized Debtors and the Department agree to respond to comments received on any such application on a timely basis. The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other such that such Retained Permit revisions, modifications or amendments are processed in a timely manner to facilitate the completion of reclamation in a manner consistent with applicable Reclamation Agreements and applicable state and federal law.
(b)     Administrative Fee . The Reorganized Debtors shall pay out of the Restricted Cash Reclamation Account an administrative fee to the Department to provide for the oversight of the budgeting, accounting and settlement implementation activities of the Department in the amount of $56,000 per annum.
(c)     Attorney Fees . On the Effective Date, the Debtors shall pay to the Department the amount of the attorneys’ fees and expenses of the Department incurred during the pendency of the Debtors’ chapter 11 cases through the Effective Date of the Plan up to $250,000.
(d)    Access to Rejected Leasehold Properties.

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(i)    Consistent with the order authorizing, among other things, the rejection of certain unexpired leases (Docket No. 2239) (the “ Rejection Order ”) and any similar order, the Debtors and the Reorganized Debtors shall work with the lessors under rejected leases to obtain access to the applicable sites to complete reclamation or perform mitigation or water treatment (any such site, a “ Rejected Lease Site ”).
(ii)    If the Debtors or the Reorganized Debtors are unable to obtain access to any Rejected Lease Site to complete reclamation or perform mitigation or water treatment, the Reorganized Debtors and the Department shall work cooperatively and in good faith to address and remedy the access issue and to develop a mechanism to ensure such access.
(iii)    The failure to obtain access shall not excuse the Debtors or the Reorganized Debtors from complying with their reclamation, mitigation and water treatment obligations under applicable law. The Debtors shall include language in the order confirming the Plan (the “ Confirmation Order ”) clarifying that paragraph 8 of the Rejection Order and any other similar order does not apply to the Department or interfere in any way with the Department’s enforcement of the Mining Laws against the Debtors, the Reorganized Debtors or any other parties and incorporating any other provisions agreed upon by the Department, the Debtors and the Reorganized Debtors.
(e)     Permit Transfers . The Department shall review permit transfer applications and complete permit transfers, including the transfers of the Transferred Permits, that comply with applicable law expeditiously.
(f)     Consent Orders .
(i)    On the Effective Date, the Reorganized Debtors and the Department shall enter into a consent order substantially in the form attached hereto as Exhibit 5.
(ii)    The Reorganized Debtors and the Department shall negotiate in good faith such other consent orders as the Department shall deem necessary or appropriate to embody the terms of the Reclamation Agreements and this Settlement Agreement.
7.     Limitations on Certain Transactions .
(a)     Merger, Sale of Substantial All Assets, or Change in Control . The Reorganized Debtors may enter into a merger or sale of all or substantially all of the assets of the Reorganized Debtors or any Change in Control, but in each case only if: (i) the Reorganized Debtors comply with their obligations under the Reclamation Funding Agreement with respect to such transaction; and (ii) the Department determines in its sole and absolute discretion that the Reorganized Debtors, the purchaser and/or the successor have the ability to complete all of the reclamation, mitigation and water management and

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treatment obligation in West Virginia that it proposes to assume or retain; provided , however , that the Restructuring Transactions, including, without limitation, the Sale Transaction, shall not be deemed to be mergers, sales or Changes in Control within the meaning of this Section 7(a).
(b)     Asset Sales . To the extent that the Reorganized Debtors seek to sell assets associated with the Delbarton, Mammoth or Marfork Mining Complexes (whether through an asset sale or equity sale at any level that includes such assets) at any time after the Effective Date, the Reorganized Debtors may do so only with the prior approval of the Department, which approval shall not be unreasonably withheld. In considering approval of the sale, the Department may consider the effect of such sale upon the Reorganized Debtors’ ability to Fully Reclaim or fully bond its remaining sites and the amount of the contribution of sale proceeds to the State’s Restricted Cash Reclamation Account. With respect to all other Material Asset Sales involving mining assets located in the State or Retained Permits, the Reorganized Debtors shall provide reasonable notice of the proposed asset sale, consult with the Department regarding the proposed sale, and comply with Section 4(b)(ii) with respect to the proceeds thereof.
(c)     No Dividends . Until the Reorganized Debtors have fulfilled their obligations to bond and fully fund reclamation, mitigation and water management and treatment in accordance with this Settlement Agreement, ANR, Inc., Alpha Natural Resource Holdings, Inc., and any other issuer of equity interests distributed to creditors under the Plan, other than the Purchaser or any of its subsidiaries, shall not make any distributions on account of any of their equity interests; provided, however, that nothing herein shall prohibit the Reorganized Debtors from making payments or otherwise satisfying their obligations pursuant to the Plan with respect to the Reorganized ANR Contingent Revenue Payment.
(d)    For the avoidance of doubt, nothing in Sections 7(a) and (b) hereof shall: (i) limit or interfere with the Department’s exercise of discretion with respect to approving any permit transfer or other required regulatory approval; (ii) alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation of all of its or their respective permitted sites in accordance with applicable Reclamation Agreements, consent decrees and this Settlement Agreement; or (iii) apply to the Sale Transaction.
8.     Releases.
(a)    Subject to the Reorganized Debtors providing bonding for the West Virginia Permits at all Active and Inactive Sites, including any Not Started Sites that are deemed to be “Inactive Sites” (which may include the Reorganized Debtors’ deposit into escrow of the funds referenced in Section 3(b)(iii) above as a Cash Bond), in each case in the aggregate amounts set forth in Exhibit 1 attached hereto, the Bankruptcy Court’s approval of the terms of this Settlement Agreement and the occurrence of the Effective Date, the Department agrees that as of the Effective Date:

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(i)    (1) The Department shall release the Debtors’ shareholders, directors, officers, employees and agents from any claims, violations or conditions arising prior to the Effective Date and (2) the Department shall not link any of the Debtors’ shareholders, directors, officers, employees or agents to the Applicant/Violator System for any claims, violations or conditions arising prior to the Effective Date. The Parties agree that nothing in the foregoing shall (1) release or affect the liability of any of the Reorganized Debtors or their shareholders, directors, officers, employees, agents or other owners or controllers (as such term is defined in the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-2.85) for any claims or violations with respect to the Retained Assets and the Retained Permits first arising after the Effective Date (whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date) (a “ Post-Effective Date Violation ”); or (2) prevent any of the Reorganized Debtors’ shareholders, directors, officers, employees, agents and other owners and controllers of the Reorganized Debtors from being linked to the Applicant/Violator System on account of any Post-Effective Date Violation; provided , however, that the Department shall not take any action against any of the foregoing parties on account of any Post-Effective Date Violation based solely on a failure to undertake reclamation obligations in a timely manner, where such reclamation obligations are being performed and satisfied in accordance with the terms of applicable Reclamation Agreements, consent decrees or this Settlement Agreement.
(ii)    The Department shall release the Purchaser, all of its subsidiaries, the First Lien Lenders, the First Lien Agent, the DIP Lenders, the DIP Agent, any affiliate of any of the foregoing (including any entity that is or becomes an affiliate of the Purchaser as a result of the Sale Transaction), and their respective directors, officers, employees and agents from any claims, violations or conditions (1) arising prior to the Effective Date or (2) with respect to the Retained Permits or the Retained Assets, in each case except to the extent that any or all of such entities or people after the Effective Date (x) are directors, officers, employees and agents of the Reorganized Debtors, or otherwise operate or own or control (as such term is defined in the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-2.85) the Retained Permits, Retained Assets, or the Reorganized Debtors after the Effective Date or (y) constitute or become an operator, or own or control (as such term is defined in the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-2.85) an operator, of the Transferred Permits or any other permit. For avoidance of doubt, none of the (i) relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction, (ii) funding obligations of the Purchaser arising under the Reclamation Funding Agreement and (iii) the consummation of the Sale Transaction shall be construed to classify or give any right to the Department to classify or assert the Purchaser or its subsidiaries or

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their respective shareholders, directors, officers or employees as an owner or controller (as such term is defined in of the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-2.85) of the Reorganized Debtors.
(iii)    The Department shall release the Reorganized Debtors and their directors, officers, employees and agents from any claims, violations or conditions with respect to the Transferred Permits, except to the extent that any or all of such entities or persons are also employed by, or otherwise own or control (as such term is defined in the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-2.85), the Purchaser after the Effective Date. For avoidance of doubt, none of the (i) relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction, (ii) funding obligations of the Purchaser arising under the Reclamation Funding Agreement and (iii) the consummation of the Sale Transaction shall be construed to classify or give any right to the Department to classify or assert the Reorganized Debtors or their subsidiaries or their respective shareholders, directors, officers or employees as an owner or controller (as such term is defined in of the West Virginia Surface Mining Reclamation Rule, W. Va. Code R. § 38-2-2.85) of the Purchaser.
(b)    This Settlement Agreement shall be incorporated by reference into the Confirmation Order. To the extent this Settlement Agreement conflicts or is otherwise inconsistent with the terms of the Plan, the Settlement Agreement shall govern.
9.     Events of Default.
(a)    Each of the following shall constitute an “Event of Default” under this Settlement Agreement:
(i)    The failure of the Purchaser to timely make any payment in accordance with the Reclamation Funding Agreement within ten days after it is due;
(ii)    The failure of the Reorganized Debtors to timely contribute any amounts required to be contributed to the Restricted Cash Accounts in accordance with the Reclamation Funding Agreement within ten days after the contribution is due;
(iii)    The failure of the Reorganized Debtors to timely comply with their obligations in accordance with any Reclamation Agreement or any consent order with the Department;

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(iv)    The Reorganized Debtors’ actual expenditures from the Restricted Cash Accounts exceed their budgeted expenditures by the greater of 20% or $500,000 in the aggregate for any Quarterly Period; and
(v)    The Reorganized Debtors file a voluntary petition for relief under the Bankruptcy Code, or an involuntary petition is filed against the Reorganized Debtors that is not dismissed within 60 days.
(b)    If an Event of Default occurs, the Department may provide notice to the Reorganized Debtors and the Purchaser of such Event of Default (the “ Notice of Default ”). The Reorganized Debtors and the Purchaser shall have until the date that is 30 days from the date of their receipt of the Notice of Default (the “ Cure Deadline ”) to cure any Event of Default arising pursuant to Section 9(a)(iii) hereof.
(c)    Upon the occurrence of an Event of Default and, with respect to any Event of Default arising pursuant to Section 9(a)(iii) hereof, its continuation until after the Cure Deadline, the Department may:
(i)    terminate this Settlement Agreement;
(ii)    deliver a notice of termination of the right to use cash in the Restricted Cash Accounts and require that such funds be delivered to the Department;
(iii)    draw down on any letter of credit or other collateral posted pursuant to this Settlement Agreement, including without limitation any funds in the Restricted Cash Accounts;
(iv)    revoke any or all of the Reorganized Debtors’ permits in the State, including the Retained Permits, and forfeit the amount of any bonds therefor; and/or
(v)    take any other regulatory or enforcement action permitted by law.
(d)    The Department shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of the Department of any right to take any action upon the occurrence of any Event of Default.
(e)    The termination of this Settlement Agreement shall have no effect on the obligations of the Reorganized Debtors hereunder, the obligations of the Reorganized Debtors or the Purchaser under the Reclamation Funding Agreement, the obligations of the Reorganized Debtors to Fully Reclaim all of their permitted Mining Sites in accordance with the Retained Permits and all applicable state and federal laws and otherwise comply with applicable state and federal laws, or any of the releases granted under this Settlement Agreement.

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(f)    Without limiting any other provision of this Settlement Agreement, nothing in this Section 9 shall be deemed or construed to limit or otherwise affect the authority or ability of the Department to issue notices of violation or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against the Reorganized Debtors, the Purchaser or any other person or entity or in respect of any permits or mining sites in the State, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g)    An Event of Default by the Reorganized Debtors of the type described in Section 9(a)(ii) through (v) shall not be construed to require the Purchaser to cure such defaults or otherwise make the Purchaser liable for such defaults.
10.     Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Settlement Agreement:
(a)    This Settlement Agreement, the Reclamation Funding Agreement and the Water Treatment Stipulation shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(b)    The Plan, as it may be amended consistent with the terms of this Settlement Agreement, shall be confirmed on or before July 15, 2016;
(c)    The Confirmation Order shall include customary carve-outs from the release, discharge, injunction, exculpation and similar provisions of the Plan and Confirmation Order for governmental units; provided , however, that such carve-outs shall not limit any releases provided under this Settlement Agreement;
(d)    The Effective Date shall occur on or before July 31, 2016;
(e)    There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First Lien Lenders, the Second Lien Noteholders and the Creditors Committee as filed with the Bankruptcy Court prior to May 25, 2016;
(f)    There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and
(g)    There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.
11.     Settlement Agreement and the Plan . In the event of a conflict between the terms of this Settlement Agreement and the Plan with respect to the terms hereof, this Settlement Agreement shall control.
12.    C ovenants, Cooperation and Good Faith Efforts.

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(a)     Reclamation Agreements, Plans and Budgets . The Reorganized Debtors and the Department agree to cooperate and work in good faith with each other to negotiate Reclamation Agreements with respect to the Retained Permits and develop the Long-Term Budget and the Semi-Annual Budgets for the Retained Permits such that reclamation, mitigation and water treatment work is sequenced and otherwise conducted in a manner that (a) protects the public health and safety, (b) complies with state and federal law and (c) properly manages the available financial resources to help ensure the cost-effective and timely completion of Full Reclamation and the release of all bonds associated with the Retained Permits.
(b)     Use of Resources . The Reorganized Debtors and the Department agree to work in good faith with each other to ensure that the reclamation, mitigation, and water treatment work with respect to the Retained Permits is sequenced and otherwise conducted in a manner that maximizes the reclamation work that can be completed with the resources available.
(c)     Timely Reclamation . If the Reorganized Debtors are performing the reclamation, mitigation, and water treatment obligations under the Retained Permits in accordance with this Settlement Agreement, the time frames and provisions of the West Virginia Permits or any applicable Reclamation Agreements or consent orders, the Department shall take no action to forfeit the reclamation bonds relating to the Retained Permits or issue any notice of noncompliance or cessation order based solely on a failure to undertake reclamation in a timely manner. The Department otherwise reserves all rights to take all enforcement actions consistent with applicable State and federal law.
13.     Acknowledgement. The Purchaser acknowledges that, as of Effective Date:
(a)    The Purchaser shall be deemed to be an operator or owner and controller under applicable Mining Laws with respect to all of the Transferred Permits; provided , however, that the Purchaser’s status as such may and shall change in accordance with applicable federal and State law as facts and circumstances change; and
(b)    Each transferee of a Transferred Permit must comply with all applicable laws with respect to such Transferred Permit, including all applicable laws with respect to the transfer of such Transferred Permit.
14.     Permit Transfers and Phased Bond Releases. After the Effective Date, the Transferred Permits will be assigned and transferred to the Purchaser (or its designee) in accordance with the terms of the APA, and the transferee of the Transferred Permits will assume all liabilities and obligations associated with the Transferred Permits.
(a)     Schedule for Permit Transfers . As promptly as practicable following the closing of the Sale Transaction but, in any event, by no later than 30 days after the Effective Date, the Purchaser will submit applications for transfer of the Transferred Permits to the Department. The transfer applications will be advertised in accordance with, and otherwise comply with, applicable regulatory requirements. The Purchaser and the Debtors, on behalf of the Reorganized Debtors, agree to respond on a timely basis to

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comments received on such applications. The Parties agree to cooperate and work in good faith with each other such that the Transferred Permits are transferred as proposed in this Settlement Agreement.
(b)     Phased Bond Releases . Upon submittal of the appropriate replacement bonds to the Department, any corresponding reclamation bonds originally issued to the Debtors with respect to such Transferred Permits will be released in accordance with the standard permit procedures under applicable State and federal law.
(c)     Permit Transfers Incidental to Certain Plan Transactions . The Plan contemplates that the Debtors will modify the corporate form of certain of the Debtors and establish one or more new ultimate parent entities of the Debtors (collectively, the “ Ministerial Plan Transactions ”). To the extent the Ministerial Plan Transactions, as a technical matter, may require updates or modifications of any of the West Virginia Permits that constitute permit transfers under applicable law in addition to the ultimate transfer of the Transferred Permits to the Purchaser, the Reorganized Debtors and the Department agree to cooperate and work in good faith with each other to effectuate such updates, modifications or transfers upon the Reorganized Debtors’ application therefor. Together with the first application for such updates, modifications, and transfers, the Reorganized Debtors agree to pay the sum of $50,000 to the Department, in addition to paying any associated advertising costs and expenses, as a blanket fee to offset the Department’s administrative costs in connection with any updates or modifications, including name changes or permit transfers required as a technical matter due to the Ministerial Plan Transactions, of West Virginia Permits required solely for purposes of effectuating the Ministerial Plan Transactions. For the avoidance of doubt, any transfers of West Virginia Permits between entities other than as described in this Section 14(c) shall not constitute Ministerial Plan Transactions and shall be subject to transfer fees, if any, under applicable Mining Laws.
15.     Third Party Beneficiaries. The Parties acknowledge and agree that the Third Party Beneficiaries are intended to be and hereby are acknowledged to be the sole third party beneficiaries of this Settlement Agreement. The Parties acknowledge and agree that the Third Party Beneficiaries have no duty of performance under this Settlement Agreement to any Party. Notwithstanding anything to the contrary herein, subject to the occurrence of the Effective Date, all of the provisions of this Settlement Agreement expressly or impliedly inuring to the benefit of the Third Party Beneficiaries shall survive the expiration, termination or the supersession of this Settlement Agreement, in each case for any reason, and shall remain fully effective for the benefit of the Third Party Beneficiaries and fully enforceable by the Third Party Beneficiaries against each Party notwithstanding such expiration, termination or superseding cause. The Parties acknowledge and agree that, except as explicitly set forth in this Section, nothing in this Settlement Agreement is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein).
16.     Successors and Assigns. The provisions of this Settlement Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.

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17.     Entire Agreement. This Settlement Agreement, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.
18.     Governing Law. This Settlement Agreement shall be governed by and construed under the laws of the State without regard for the conflict of laws provisions thereof.
19.     Authority and Validity . Each Party otherwise represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Settlement Agreement and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) such Party’s execution and delivery of, and performance under, this Settlement Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Settlement Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Settlement Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Settlement Agreement; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Settlement Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
20.     No Reliance. Each Party represents and warrants that in entering into this Settlement Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Settlement Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
21.     Modification or Amendment. This Settlement Agreement may be modified or amended only by written agreement executed by each of the Parties and, with regards to any provision impacting the First Lien Lenders or the First Lien Agent, the written consent of the First Lien Lenders or the First Lien Agent, as applicable.
22.     Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Settlement Agreement and to consummate the transactions contemplated hereby and thereby.

21


23.     Construction. This Settlement Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Settlement Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Settlement Agreement were negotiated at arms’-length, and this Settlement Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Settlement Agreement and the Plan, the terms of this Settlement Agreement shall govern.
24.     Headings. Titles and headings in this Settlement Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Settlement Agreement.
25.     Execution in Counterpart. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Settlement Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
26.     Severability. If any provision of this Settlement Agreement is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(Remainder of Page Intentionally Blank; Signatures to Follow)

22


IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
/s/ Mark M. Manno
 
/s/ Kristin A. Boggs
By: Mark M. Manno
Its: EVP, General Counsel, CPO & Secretary
 
By: /s/ Kristin A. Boggs
Its: General Counsel
 

CONTURA ENERGY, INC.
/s/ John DeGroote
By: John DeGroote
Its: President and Secretary

Acknowledged and agreed as to Section 3(b)(iii) only:
CITICORP NORTH AMERICA, INC., AS FIRST LIEN AGENT
/s/ Dale Goncher
 
By: Dale Goncher
Its: Vice President



    


IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
 
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
/s/ John DeGroote
By: John DeGroote
Its: President and Secretary

Acknowledged and agreed as to Section 3(b)(iii) only:
CITICORP NORTH AMERICA, INC., AS FIRST LIEN AGENT
 
 
By:
Its:



    



IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
 
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
 
 
By:
Its:

Acknowledged and agreed as to Section 3(b)(iii) only:
CITICORP NORTH AMERICA, INC., AS FIRST LIEN AGENT
/s/ Dale Goncher
 
By: Dale Goncher
Its: Vice President



    



IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
 
 
/s/ Kristin A. Boggs
By:
Its:
 
By: Kristin A. Boggs
Its: General Counsel
 

CONTURA ENERGY, INC.
 
 
By:
Its:

Acknowledged and agreed as to Section 3(b)(iii) only:
CITICORP NORTH AMERICA, INC., AS FIRST LIEN AGENT
 
 
By:
Its:



    


Exhibit 1
[Schedule of Retained Permits]




    
RETAINED PERMITS FOR RECLAIM-ONLY SITE STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Bandmill
O502090
ARACOMA COAL COMPANY, INC.
Ethel Prep Plant
Active
$179,520
YES
Bandmill
S501390
ARACOMA COAL COMPANY, INC.
Camp Branch Surface Mine
Active
$4,883,200
NO
Bandmill
S501390
ARACOMA COAL COMPANY, INC.
Camp Branch Surface Mine
Active
$736,800
YES
Bandmill
S501390
ARACOMA COAL COMPANY, INC.
Camp Branch Surface Mine
Active
$405,000
YES
Bandmill
S503508
ARACOMA COAL COMPANY, INC.
Piney Branch Surface Mine
Active
$23,280
YES
Bandmill
U500499
ARACOMA COAL COMPANY, INC.
Chilton #1 Mine
Active
$110,160
YES
Bandmill
U500699
ARACOMA COAL COMPANY, INC.
Alma No. 1
Active
$147,000
YES
Bandmill
U502190
ARACOMA COAL COMPANY, INC.
Princess Aracoma Deep Mine
Active
$386,280
YES
Bandmill
U503008
ARACOMA COAL COMPANY, INC.
Upper Cedar Grove Deep Mine #2
Active
$45,360
YES
Bandmill
O500210
BANDMILL COAL CORPORATION
Bandmill Hollow Impoundment
Active
$22,800
NO
Bandmill
O503299
BANDMILL COAL CORPORATION
Tinsley Br Refuse Impoundment
Active
$1,879,840
YES
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$106,080
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$89,760
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$40,800
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$24,480
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$19,040
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$16,320
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$13,600
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
8, 160
NO
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Plant
Active
$116,960
YES
Bandmill
P071800
BANDMILL COAL CORPORATION
Bandmill Preparation Plant
Active
$73,160
YES
Bandmill
O500703
HIGHLAND MINING COMPANY
Freeze Fork Haulroad
Active
$47,000
YES
Bandmill
S501506
HIGHLAND MINING COMPANY
Reylas Surface Mine
Active
$962,240
NO
Bandmill
S501506
HIGHLAND MINING COMPANY
Reylas Surface Mine
Active
$2,162,240
YES
Bandmill
S501506
HIGHLAND MINING COMPANY
Reylas Surface Mine
Active
$15,520
YES
Bandmill
S501506
HIGHLAND MINING COMPANY
Reylas Surface Mine
Active
$388,000
YES
Bandmill
U061600
HIGHLAND MINING COMPANY
Coalburg #3 Mine
Active
$75,520
YES
Bandmill
P581
TRACE CREEK COAL COMPANY
Feats Loadout
Active
$21,280
NO
Bandmill
P581
TRACE CREEK COAL COMPANY
Feats Loadout
Active
$3,040
NO
Bens Creek – Black Bear
O500312
BROOKS RUN SOUTH MINING, LLC
Cow Creek Access Road
Active
$23,000
YES
Bens Creek – Black Bear
U500612
COBRA NATURAL RESOURCES, LLC
Pine Creek Mine No. 1
Active
$16,320
YES
Bens Creek – Black Bear
S400407
PREMIUM ENERGY, LLC
Premium Mills Surface Mine
Active
12, 600
NO
Delbarton
O015683
DELBARTON MINING COMPANY
Prep Plant
Active
$40,320
YES
Delbarton
O508091
DELBARTON MINING COMPANY
Impoundment
Active
$675,840
YES
Delbarton
U501996
DELBARTON MINING COMPANY
Ruby
Active
$90,000
YES
Delbarton
U502699
DELBARTON MINING COMPANY
Keilty
Active
$32,760
YES
Delbarton
U502699
DELBARTON MINING COMPANY
Keilty
Active
$32,760
YES
Delbarton
U502699
DELBARTON MINING COMPANY
Keilty
Active
$10,800
YES
Elk Run
O504293
ELK RUN COAL COMPANY, INC.
Chess Refuse Disposal Facility
Active
$2,131,920
YES
Elk Run
P047000
ELK RUN COAL COMPANY, INC.
Chess Processing Complex
Active
$372,600
YES
Elk Run
U300996
ELK RUN COAL COMPANY, INC.
Laurel Powellton Mine
Active
$11,000
YES
Erbacon
O201810
BROOKS RUN MINING COMPANY, LLC
Stump Hollow Impoundment
Active
$197,060
YES
Erbacon
S200912
BROOKS RUN MINING COMPANY, LLC
Hoovers Landing
Active
$143,520
YES
Goals
S301709
MARFORK COAL COMPANY, INC.
Hazy Creek Surface Mine
Active
$54,720
YES
Inman Admiral
O003682
BLACK CASTLE MINING COMPANY
Admiral Processing and Crooked Run Impoundment
Active
$1,240,320
YES
Inman Admiral
S501200
BLACK CASTLE MINING COMPANY
Laxare East Surface Mine
Active
$2,555,000
NO
Inman Admiral
S501200
BLACK CASTLE MINING COMPANY
Laxare East Surface Mine
Active
$539,760
NO
Inman Admiral
S502300
BLACK CASTLE MINING COMPANY
Black Castle Contour
Active
$2,101,400
NO
Inman Admiral
S502300
BLACK CASTLE MINING COMPANY
Black Castle Contour
Active
$1,235,440
NO
Inman Admiral
S502401
BLACK CASTLE MINING COMPANY
Lexerd Surface Mine
Active
$814,680
NO
Inman Admiral
S502401
BLACK CASTLE MINING COMPANY
Lexerd Surface Mine
Active
$15,000
NO
Inman Admiral
S500105
ELK RUN COAL COMPANY, INC.
Short Ridge Surface Mine
Active
$160,920
NO
Inman Admiral
S500105
ELK RUN COAL COMPANY, INC.
Short Ridge Surface Mine
Active
$140,400
NO
Inman Admiral
S500105
ELK RUN COAL COMPANY, INC.
Short Ridge Surface Mine
Active
$64,760
NO
Inman Admiral
S500105
ELK RUN COAL COMPANY, INC.
Short Ridge
Active
$584,080
YES
Inman Admiral
S500105
ELK RUN COAL COMPANY, INC.
Short Ridge
Active
$509,600
YES
Inman Admiral
S500105
ELK RUN COAL COMPANY, INC.
Short Ridge
Active
$380,240
YES
Inman Admiral
S502300
ELK RUN COAL COMPANY, INC.
Black Castle Contour
Active
$233,160
YES
Inman Admiral
S502300
ELK RUN COAL COMPANY, INC.
Black Castle Contour
Active
$175,000
YES
Inman Admiral
S502300
ELK RUN COAL COMPANY, INC.
Black Castle Contour
Active
$91,560
YES
Inman Admiral
S502898
ELK RUN COAL COMPANY, INC.
West of Stollings Surface Mine
Active
$25,000
NO
Inman Admiral
S502898
ELK RUN COAL COMPANY, INC.
West of Stollings
Active
$6,542,862
YES
Inman Admiral
S505792
ELK RUN COAL COMPANY, INC.
East of Stollings
Active
$4,016,600
YES
Inman Admiral
S505792
ELK RUN COAL COMPANY, INC.
East of Stollings
Active
$3,406,600
YES

1


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Inman Admiral
S505792
ELK RUN COAL COMPANY, INC.
East of Stollings
Active
$41,800
YES
Inman Admiral
S600687
ELK RUN COAL COMPANY, INC.
Checkmate
Active
$305,000
YES
Inman Admiral
S501200
INDEPENDENCE COAL COMPANY, INC.
Laxare East Surface Mine
Active
$25,000
NO
Inman Admiral
S501200
INDEPENDENCE COAL COMPANY, INC.
Laxare East Surface Mine
Active
$4,125,240
YES
Inman Admiral
S501200
INDEPENDENCE COAL COMPANY, INC.
Laxare East Surface Mine
Active
$0
YES
Inman Admiral
S501200
INDEPENDENCE COAL COMPANY, INC.
Laxare East Surface Mine
Active
$215,540
YES
Inman Admiral
S502401
INDEPENDENCE COAL COMPANY, INC.
Lexerd Surface Mine
Active
$2,350,320
YES
Inman Admiral
S502401
INDEPENDENCE COAL COMPANY, INC.
Lexerd Surface Mine
Active
$375,380
YES
Inman Admiral
H021200
OMAR MINING COMPANY
Plant / Laurel Ck Haulroad
Active
$18,000
YES
Inman Admiral
H039600
OMAR MINING COMPANY
Chesterfield #11 - #13 Haulroad
Active
$10,000
YES
Inman Admiral
S503190
OMAR MINING COMPANY
Horse Hollow Surface Mine
Active
$271,600
YES
Inman Admiral
O400710
ROAD FORK DEVELOPMENT COMPANY, INC.
Indian Creek Haulroad
Active
$10,000
YES
Inman Admiral
S400810
ROAD FORK DEVELOPMENT COMPANY, INC.
Indian Creek Sewell HWM
Active
$52,800
YES
Inman Admiral
S401909
ROAD FORK DEVELOPMENT COMPANY, INC.
Indian Creek Sewell Deep Mine No. 1
Active
$15,960
YES
Kepler
U301512
BROOKS RUN MINING COMPANY, LLC
Marianna Slope Mine
Active
35, 720
NO
Kepler
U301512
BROOKS RUN MINING COMPANY, LLC
Marianna Slope Mine
Active
$0
YES
Kepler
U401289
BROOKS RUN MINING COMPANY, LLC
Marianna Sewell (Alpine 3)
Active
$28,320
NO
Kepler
U401406
BROOKS RUN MINING COMPANY, LLC
Farnsworth Mine
Active
$10,400
YES
Kepler
E004500
KEPLER PROCESSING COMPANY, LLC
Kepler Prep Plant & Refuse & Impondment
Active
$553,280
YES
Kepler
O400603
KEPLER PROCESSING COMPANY, LLC
Big Branch Impoundment
Active
$513,360
YES
Kepler
O402496
KEPLER PROCESSING COMPANY, LLC
Big Branch Course Refuse Dump 2
Active
$201,600
YES
Kepler
O400696
PAYNTER BRANCH MINING, INC.
WVDEP Huff Mountain Haul Road
Active
$21,000
YES
Kepler
H043300
RIVERSIDE ENERGY COMPANY, LLC
Still Run Haulroad
Active
$13,000
YES
Kepler
H044500
RIVERSIDE ENERGY COMPANY, LLC
Sugar Run Haulroad
Active
$10,000
YES
Kepler
U400801
RIVERSIDE ENERGY COMPANY, LLC
Still Run 11
Active
$17,080
YES
Kepler
O000684
ROAD FORK DEVELOPMENT COMPANY, INC.
 
Active
$98,280
NO
Kepler
O000684
ROAD FORK DEVELOPMENT COMPANY, INC.
 
Active
$42,120
NO
Kepler
O000684
ROAD FORK DEVELOPMENT COMPANY, INC.
 
Active
$12,480
NO
Kepler
O000684
ROAD FORK DEVELOPMENT COMPANY, INC.
 
Active
$3,120
NO
Kepler
O000684
ROAD FORK DEVELOPMENT COMPANY, INC.
Marianna Plant
Active
$161,240
YES
Kepler
O400710
ROAD FORK DEVELOPMENT COMPANY, INC.
Indian Creek Haulroad
Active
$10,000
NO
Kepler
S400810
ROAD FORK DEVELOPMENT COMPANY, INC.
Indian Creek Sewell HWM
Active
$51,040
NO
Kepler
U400105
ROAD FORK DEVELOPMENT COMPANY, INC.
Guyandotte Slope Mine
Active
$122,000
YES
Kepler
U401909
ROAD FORK DEVELOPMENT COMPANY, INC.
Indian Creek Sewell Deep Mine No. 1
Active
$15,960
NO
Kingston
O301198
KINGSTON MINING, INC.
WVDEP Preparation Plant
Active
$79,200
YES
Kingston
O301993
KINGSTON MINING, INC.
WVDEP Refuse Area
Active
$757,740
YES
Kingston
U042800
KINGSTON MINING, INC.
WVDEP King Powellton No. 5/Belt Tunnel
Active
$299,880
YES
Kingston
U300496
KINGSTON MINING, INC.
Kingston Resources
Active
$12,200
NO
Kingston
U300496
KINGSTON MINING, INC.
WVDEP Kingston No. 1 Mine
Active
$58,560
YES
Kingston
U300512
KINGSTON MINING, INC.
Kingston No. 5 Mine - Glen Alum
Active
$18,360
NO
Kingston
U300597
KINGSTON MINING, INC.
WVDEP Kingston No. 3 Mine
Active
$32,760
YES
Kingston
U300601
KINGSTON MINING, INC.
WVDEP Kingston No. 2 Mine
Active
$22,800
YES
Liberty
O601887
JACKS BRANCH COAL COMPANY
 
Active
$10,000
YES
Liberty
O602489
JACKS BRANCH COAL COMPANY
 
Active
$10,000
YES
Litwar
P068700
LITWAR PROCESSING COMPANY, LLC
Litwar Prep Plant
Active
$120,960
YES
Litwar
R064300
LITWAR PROCESSING COMPANY, LLC
Litwar Refuse Facility
Active
$56,320
NO
Litwar
R064300
LITWAR PROCESSING COMPANY, LLC
Litwar Refuse
Active
$266,240
YES
Litwar
U400204
RIVERSIDE ENERGY COMPANY, LLC
War Branch 2
Active
$10,000
YES
Litwar
U401207
RIVERSIDE ENERGY COMPANY, LLC
Horse Creek Mine 1
Active
19, 520
YES
Litwar
U401508
RIVERSIDE ENERGY COMPANY, LLC
Rock Branch Mine 2
Active
$10,200
YES
Litwar
U401908
RIVERSIDE ENERGY COMPANY, LLC
Lower War Eagle Mine
Active
$48,240
YES
Mammoth
H059900
ALEX ENERGY, INC.
Princess Beverly Haulroad
Active
$4,000
YES
Mammoth
O601186
ALEX ENERGY, INC.
Carbon Haulroad
Active
$5,000
YES
Mammoth
O601186
ALEX ENERGY, INC.
Carbon Haulroad
Active
$2,000
YES
Mammoth
S300101
ALEX ENERGY, INC.
Republic 2
Active
$2,737,920
YES
Mammoth
S300599
ALEX ENERGY, INC.
Kayford #5
Active
$1,340,480
YES
Mammoth
S300697
ALEX ENERGY, INC.
Lick Knob 2
Active
$256,000
YES
Mammoth
S301011
ALEX ENERGY, INC.
Long Branch Surface Mine
Active
$396,000
YES
Mammoth
S301203
ALEX ENERGY, INC.
Republic 3
Active
$55,000
YES
Mammoth
S301308
ALEX ENERGY, INC.
Enduring Freedom
Active
$276,080
YES
Mammoth
S302195
ALEX ENERGY, INC.
Eagle Land Surface Mine
Active
$2,130,000
NO
Mammoth
S302195
ALEX ENERGY, INC.
Eagle Land # 1 Surface
Active
645, 000
YES
Mammoth
S302299
ALEX ENERGY, INC.
Skitter Creek 2
Active
$10,000
YES

2
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Mammoth
S302500
ALEX ENERGY, INC.
Republic 1
Active
$0
YES
Mammoth
S302794
ALEX ENERGY, INC.
Skitter Creek 1
Active
$1,891,200
YES
Mammoth
U300109
ALEX ENERGY, INC.
Empire Coalburg Deep Mine
Active
$57,960
YES
Mammoth
O007582
JACKS BRANCH COAL COMPANY
Mammoth Processing
Active
$649,440
YES
Mammoth
O300608
JACKS BRANCH COAL COMPANY
Jacks Branch Haul Road
Active
$130,000
YES
Mammoth
S012782
JACKS BRANCH COAL COMPANY
Dunn Hollow Refuse Facility
Active
$888,720
YES
Mammoth
S012782
JACKS BRANCH COAL COMPANY
Dunn Hollow Refuse Facility
Active
$173,880
YES
Mammoth
S012782
JACKS BRANCH COAL COMPANY
Dunn Hollow Refuse Facility
Active
$22,080
YES
Mammoth
U304291
JACKS BRANCH COAL COMPANY
Mine No. 130 Shadrick Portal
Active
$369,360
YES
Mammoth
H063200
KANAWHA ENERGY COMPANY
Harewood Strip Haul Road
Active
$44,000
YES
Mammoth
U300704
KANAWHA ENERGY COMPANY
Laurel Hollow Coalburg Tunnel Deep Mine
Active
$128,640
YES
Mammoth
U301002
KANAWHA ENERGY COMPANY
Slabcamp Stockton Deep Mine Slabcamp Stockton Deep Mine
Active
$195,800
YES
Mammoth
H059900
REPUBLIC ENERGY, INC.
Princess Beverly Haulroad
Active
$36,000
NO
Mammoth
O601186
REPUBLIC ENERGY, INC.
Carbon Haulroad
Active
$35,000
NO
Mammoth
S300101
REPUBLIC ENERGY, INC.
Republic 2
Active
$1,075,000
NO
Mammoth
S300101
REPUBLIC ENERGY, INC.
Republic 2
Active
$132,080
NO
Mammoth
S301308
REPUBLIC ENERGY, INC.
Enduring Freedom Surface Mine
Active
$148,800
NO
Mammoth
S301308
REPUBLIC ENERGY, INC.
Enduring Freedom Surface Mine
Active
$106,640
NO
Mammoth
S301308
REPUBLIC ENERGY, INC.
Enduring Freedom Surface Mine
Active
$104,160
NO
Mammoth
S301308
REPUBLIC ENERGY, INC.
Enduring Freedom Surface Mine
Active
$42,160
NO
Mammoth
S301492
REPUBLIC ENERGY, INC.
Kayford # 4
Active
$364,560
NO
Mammoth
S302195
REPUBLIC ENERGY, INC.
Eagle Land Surface Mine
Active
$1,395,000
NO
Mammoth
S302195
REPUBLIC ENERGY, INC.
Eagle Land Surface Mine
Active
$1,230,000
NO
Mammoth
S302299
REPUBLIC ENERGY, INC.
Skitter Creek 2
Active
$955,000
NO
Mammoth
S302500
REPUBLIC ENERGY, INC.
Republic 1
Active
$1,515,000
NO
Marfork
U003483
EAGLE ENERGY INC.
 
Active
$345,960
YES
Marfork
O300594
MARFORK COAL COMPANY, INC.
Low Gap Refuse
Active
$803,040
YES
Marfork
O301095
MARFORK COAL COMPANY, INC.
Brushy Fork Slurry Impoundment
Active
$2,967,000
YES
Marfork
O302493
MARFORK COAL COMPANY, INC.
Marfork Processing
Active
$404,000
YES
Marfork
U300104
MARFORK COAL COMPANY, INC.
Horse Creek Eagle Mine - Workman Creek Facilities
Active
$44,240
NO
Marfork
U300104
MARFORK COAL COMPANY, INC.
Horse Creek Eagle Mine
Active
$489,800
YES
Marfork
U300204
MARFORK COAL COMPANY, INC.
370 Packsville/Marfork Road
Active
$3,000
NO
Marfork
U300204
MARFORK COAL COMPANY, INC.
Horse Creek No. 2 Gas Mine
Active
$120,000
YES
Marfork
U300398
MARFORK COAL COMPANY, INC.
 
Active
$89,640
YES
Marfork
U300398
MARFORK COAL COMPANY, INC.
Panther Eagle Deep Mine
Active
$21,720
YES
Marfork
U300693
MARFORK COAL COMPANY, INC.
Brushy Eagle Mine
Active
$379,440
YES
Marfork
U300900
MARFORK COAL COMPANY, INC.
Coon Cedar Grove
Active
$73,200
YES
Marfork
U301209
MARFORK COAL COMPANY, INC.
Glen Alum Tunnel Mine
Active
$54,600
YES
Marfork
U301399
MARFORK COAL COMPANY, INC.
Slip Ridge Powellton
Active
$43,920
YES
Marfork
U302100
MARFORK COAL COMPANY, INC.
Slip Ridge Cedar Grove
Active
$186,440
NO
Marfork
U302100
MARFORK COAL COMPANY, INC.
Slip Ridge Cedar Grove
Active
$51,120
NO
Marfork
U302100
MARFORK COAL COMPANY, INC.
Slip Ridge Cedar Grove Deep Mine
Active
$31,600
NO
Marfork
U302100
MARFORK COAL COMPANY, INC.
Slip Ridge Ceder Grove
Active
$6,320
NO
Marfork
U302100
MARFORK COAL COMPANY, INC.
Slip Ridge Cedar Grove
Active
$208,000
YES
Marfork
H047800
PERFORMANCE COAL COMPANY
Montcoal Mountain Haulroad
Active
$32,000
NO
Marfork
O301791
PERFORMANCE COAL COMPANY
Ellis Creek Refuse
Active
292, 320
YES
Marfork
O303290
PERFORMANCE COAL COMPANY
Ellis Creek-Refuse Conveyor
Active
$22,000
NO
Marfork
O303290
PERFORMANCE COAL COMPANY
Ellis Creek-Refuse Conveyor
Active
$10,000
NO
Marfork
O303290
PERFORMANCE COAL COMPANY
Ellis Creek-Refuse Conveyor
Active
$1,000
YES
Marfork
H030900
PIONEER FUEL CORPORATION
 
Active
$65,000
YES
Marfork
O301489
PIONEER FUEL CORPORATION
WVDEP Pax Haulroad
Active
$39,000
YES
Marfork
O302103
PIONEER FUEL CORPORATION
WVDEP Pax Loadout
Active
$156,600
YES
Marfork
O302103
PIONEER FUEL CORPORATION
WVDEP Pax Loadout
Active
$43,200
YES
Marfork
S301003
PIONEER FUEL CORPORATION
WVDEP MT-5A
Active
$2,480,000
YES
Marfork
S301006
PIONEER FUEL CORPORATION
MT-5B Surface Mine
Active
$2,074,080
YES
Marfork
S301599
PIONEER FUEL CORPORATION
WVDEP Horse Creek Surface Mine
Active
$2,315,000
YES
Marfork
S301803
PIONEER FUEL CORPORATION
WVDEP Ewing Fork No. 2
Active
$2,060,160
YES
Marfork
S301803
PIONEER FUEL CORPORATION
WVDEP Ewing Fork No. 2
Active
$305,600
YES
Marfork
O012583
REPUBLIC ENERGY, INC.
Workman Creek Impoundment
Active
$9,780
NO
Marfork
O012583
REPUBLIC ENERGY, INC.
Rowland Prep Plant
Active
$744,360
YES
Marfork
S300208
REPUBLIC ENERGY, INC.
Collins Fork Remediation Project
Active
$659,680
YES
Marfork
S301712
REPUBLIC ENERGY, INC.
Middle Ridge Surface Mine
Active
$345,600
YES

3
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Nicholas
S300811
ALEX ENERGY, INC.
Peachorchard Surface Mine
Active
$460,000
YES
Nicholas
U301808
ALEX ENERGY, INC.
Sugarcamp Winifrede No. 3 Mine
Active
$70,800
YES
Superior
U505591
LYNN BRANCH COAL COMPANY, INC.
Lynn Branch Mine
Active
$34,200
NO
Twilight
S502808
INDEPENDENCE COAL COMPANY, INC.
Twilight South Surface Mine
Active
$10,000
YES
Twilight
U001383
PERFORMANCE COAL COMPANY
Lower Big Branch, River Fork Refuse Pile, No. 7 Mine, No. 7 Prep Pla
Active
$787,200
YES
Bandmill
U500308
ARACOMA COAL COMPANY, INC.
Upper Cedar Grove Deep Mine
Inactive
$70,680
YES
Bandmill
U501606
HIGHLAND MINING COMPANY
Middle Coalburg Deep Mine
Inactive
$10,000
YES
Bandmill
U500400
RUM CREEK COAL SALES, INC.
Rich Creek Mine #1
Inactive
$13,680
YES
Cucumber
U400101
BROOKS RUN MINING COMPANY, LLC
Cucumber Mine
Inactive
$16,520
YES
Elk Run
U300294
ELK RUN COAL COMPANY, INC.
White Bishop/Rockhourse Powellton Mine
Inactive
$15,600
NO
Elk Run
D002182
ELK RUN COAL COMPANY, INC.
Castle Mine
Inactive
$157,560
YES
Elk Run
D002182
ELK RUN COAL COMPANY, INC.
Castle Mine
Inactive
$48,280
YES
Elk Run
P500215
ELK RUN COAL COMPANY, INC.
White Knight Sylvester Prospect
Inactive
$1,000
YES
Elk Run
U500305
ELK RUN COAL COMPANY, INC.
Roundbottom Powellton Mine
Inactive
$107,920
YES
Elk Run
U502200
ELK RUN COAL COMPANY, INC.
White Knight
Inactive
$301,040
YES
Elk Run
U502207
ELK RUN COAL COMPANY, INC.
Hunter Peerless
Inactive
$120,080
YES
Elk Run
U502400
ELK RUN COAL COMPANY, INC.
Black King 1 Mine
Inactive
$136,320
YES
Elk Run
U600789
ELK RUN COAL COMPANY, INC.
Castle II Mine
Inactive
$10,000
YES
Elk Run
U300294
ELK RUN COAL COMPANY, INC.
White Bishop / Rock House Powellton
Inactive
$174,200
YES
Elk Run
U300894
ELK RUN COAL COMPANY, INC.
Laurel Eagle Mine
Inactive
$51,120
YES
Elk Run
U301894
ELK RUN COAL COMPANY, INC.
Laurel Alma Mine
Inactive
$119,280
YES
Erbacon
U200611
BROOKS RUN MINING COMPANY, LLC
Jackson Bridge Extension
Inactive
$35,040
YES
Erbacon
U201208
BROOKS RUN MINING COMPANY, LLC
Jackson Bridge DM
Inactive
$71,000
YES
Erbacon
P061200
BROOKS RUN MINING COMPANY, LLC
Erbacon Prep Plant
Inactive
780, 800
YES
Erbacon
S201002
BROOKS RUN MINING COMPANY, LLC
Seven Pines SM
Inactive
$5,695,120
YES
Erbacon
S201002
BROOKS RUN MINING COMPANY, LLC
Seven Pines SM
Inactive
$424,880
YES
Erbacon
S201002
BROOKS RUN MINING COMPANY, LLC
Seven Pines SM
Inactive
$274,740
YES
Goals
D006682
GOALS COAL COMPANY
Goals Plant
Inactive
$169,800
YES
Goals
O001885
GOALS COAL COMPANY
 
Inactive
$1,121,400
YES
Inman Admiral
S500408
ELK RUN COAL COMPANY, INC.
Area 3 Surface Mine
Inactive
$2,160,000
YES
Inman Admiral
S500408
ELK RUN COAL COMPANY, INC.
Area 3
Inactive
$100,000
YES
Kepler
U402199
RIVERSIDE ENERGY COMPANY, LLC
Gravefork
Inactive
$3,520
NO
Kepler
O000184
ROAD FORK DEVELOPMENT COMPANY, INC.
 
Inactive
$12,000
NO
Kepler
O004782
ROAD FORK DEVELOPMENT COMPANY, INC.
 
Inactive
$150,960
NO
Kepler
U400498
BROOKS RUN MINING COMPANY, LLC
Still Run 7
Inactive
$25,080
YES
Kepler
U402199
RIVERSIDE ENERGY COMPANY, LLC
Gravefork 1
Inactive
$299,200
YES
Kepler
U400297
RIVERSIDE ENERGY COMPANY, LLC
Joe Branch 1 & 2
Inactive
23, 320
YES
Kepler
U400806
RIVERSIDE ENERGY COMPANY, LLC
Tralee Mine 1
Inactive
$27,720
YES
Kepler
U400996
RIVERSIDE ENERGY COMPANY, LLC
Still Run Mine No. 3
Inactive
$25,440
YES
Kepler
U402595
RIVERSIDE ENERGY COMPANY, LLC
Jims Branch 2
Inactive
$23,600
YES
Kepler
U400208
ROAD FORK DEVELOPMENT COMPANY, INC.
Kepler Sewell Mine No. 1
Inactive
$18,040
YES
Kingston
U301996
KINGSTON MINING, INC.
Big Eagle Deep Mine
Inactive
$394,287
YES
Kingston
U302990
KINGSTON MINING, INC.
WVDEP Westerly No. 2 Mine
Inactive
$186,057
YES
Liberty
O505788
INDEPENDENCE COAL COMPANY, INC.
Jake Gore Slurry Impoundment
Inactive
$779,640
NO
Liberty
O505788
INDEPENDENCE COAL COMPANY, INC.
Jake Gore Slurry Impoundment
Inactive
$469,920
NO
Liberty
O505788
INDEPENDENCE COAL COMPANY, INC.
Jake Gore Slurry Impoundment
Inactive
$10,680
NO
Liberty
S500102
INDEPENDENCE COAL COMPANY, INC.
 
Inactive
$1,605,000
NO
Liberty
S500102
INDEPENDENCE COAL COMPANY, INC.
Glory
Inactive
$1,065,000
NO
Liberty
S500102
INDEPENDENCE COAL COMPANY, INC.
Glory
Inactive
$105,000
NO
Liberty
S503195
INDEPENDENCE COAL COMPANY, INC.
West Cazy
Inactive
$3,674,000
NO
Liberty
U500594
INDEPENDENCE COAL COMPANY, INC.
Allegiance Deep Mine
Inactive
$88,320
NO
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
Spirit Deep Mine
Inactive
$63,480
NO
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
Spirit Deep Mine
Inactive
$5,520
NO
Liberty
O505788
INDEPENDENCE COAL COMPANY, INC.
Jake Gore Slurry Impoundment
Inactive
$267,000
YES
Liberty
S500102
INDEPENDENCE COAL COMPANY, INC.
Glory
Inactive
$2,340,000
YES
Liberty
S503195
INDEPENDENCE COAL COMPANY, INC.
West Cazy
Inactive
$675,000
YES
Liberty
U005783
INDEPENDENCE COAL COMPANY, INC.
Liberty Preparation Facility
Inactive
$474,320
YES
Liberty
S500102
INDEPENDENCE COAL COMPANY, INC.
Glory Surface Mine
Inactive
$493,320
YES
Litwar
U401198
RIVERSIDE ENERGY COMPANY, LLC
Rock Branch Mine No. 1
Inactive
$37,600
YES
Mammoth
S301496
ALEX ENERGY, INC.
Lick Knob # 1
Inactive
$339,480
YES
Mammoth
S302605
KANAWHA ENERGY COMPANY
Fourmile North Surface Mine
Inactive
$306,080
YES
Mammoth
U301807
KANAWHA ENERGY COMPANY
Jarrett Branch Powellton Mine
Inactive
$44,880
YES

4
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Mammoth
U301807
KANAWHA ENERGY COMPANY
Jarrett Branch Powellton Mine
Inactive
$11,400
YES
Mammoth
S302605
KANAWHA ENERGY COMPANY
Fourmile North Surface Mine
Inactive
$904,640
YES
Mammoth
S300296
KANAWHA ENERGY COMPANY
Fourmile Fork Surface Mine
Inactive
$3,210,480
YES
Mammoth
S302805
REPUBLIC ENERGY, INC.
Eagle No. 2
Inactive
$90,000
YES
Marfork
U302489
CLEAR FORK COAL COMPANY
Mine No. 6
Inactive
$181,440
NO
Marfork
U306087
PERFORMANCE COAL COMPANY
Hazy Creek No. 2 Gas
Inactive
$44,840
NO
Marfork
P302314
MARFORK COAL COMPANY, INC.
Ellis Creek Cedar Grove
Inactive
$5,000
YES
Marfork
S301004
MARFORK COAL COMPANY, INC.
Bee Tree Surface Mine
Inactive
$1,005,000
YES
Marfork
U301708
MARFORK COAL COMPANY, INC.
Beckley Seam Deep Mine
Inactive
$88,320
YES
Marfork
U500393
MARFORK COAL COMPANY, INC.
White Queen Mine
Inactive
$442,000
YES
Nicholas
U302307
ALEX ENERGY, INC.
Mine 22
Inactive
$47,920
YES
Nicholas
S302193
PEERLESS EAGLE COAL COMPANY
Lilly Fork Surface Mine
Inactive
$5,788,600
YES
Rockspring
S501306
ARACOMA COAL COMPANY, INC.
West Fork Surface Mine No. 1
Inactive
$1,425,000
YES
Rockspring
O505189
ARACOMA COAL COMPANY, INC.
Dingess Haulroad
Inactive
$40,000
YES
Rockspring
U502791
ARACOMA COAL COMPANY, INC.
Mine No. 6
Inactive
$17,640
YES
Rockspring
U500512
ROCKSPRING DEVELOPMENT, INC.
14 Mile Airshaft
Inactive
$21,240
YES
Rockspring
U502895
ROCKSPRING DEVELOPMENT, INC.
Ben Haley Portal
Inactive
$25,960
YES
Bandmill
S500911
HIGHLAND MINING COMPANY
Chilton Rider HWM Surface Mine
Not Started
$115,200
YES
Bens Creek – Black Bear
S503392
COBRA NATURAL RESOURCES, LLC
Sharkey Branch Surface Mine No. 1
Not Started
$244,240
YES
Bens Creek – Black Bear
U503397
COBRA NATURAL RESOURCES, LLC
Coon Knob Upper Cedar Grove Deep Mine
Not Started
$23,400
YES
Erbacon
P201615
BROOKS RUN MINING COMPANY, LLC
Grant Prospect Permit
Not Started
$3,500
NO
Inman Admiral
O501402
ELK RUN COAL COMPANY, INC.
Indian Creek Haulroad
Not Started
$17,000
YES
Inman Admiral
U600787
ELK RUN COAL COMPANY, INC.
Spirit 2 and 3 Deep Mines
Not Started
$52,920
YES
Inman Admiral
S502387
OMAR MINING COMPANY
Omar Surface Mine
Not Started
$37,800
YES
Kepler
U400704
BROOKS RUN MINING COMPANY, LLC
Five Forks
Not Started
$17,080
YES
Kepler
U401006
BROOKS RUN MINING COMPANY, LLC
Boreman 1 Mine
Not Started
$20,520
YES
Kepler
O401010
BROOKS RUN MINING COMPANY, LLC
Barkers Creek Haulroad
Not Started
$37,000
YES
Kepler
S400106
PAYNTER BRANCH MINING, INC.
Paynter Branch Mine
Not Started
$1,524,000
YES
Kepler
S400106
PAYNTER BRANCH MINING, INC.
Paynter Branch South
Not Started
444, 000
YES
Kepler
SMA401609
RIVERSIDE ENERGY COMPANY, LLC
Westigan No. 2 Mine
Not Started
$18,880
YES
Kepler
U300313
RIVERSIDE ENERGY COMPANY, LLC
Firecreek Mine No. 1
Not Started
$23,320
YES
Kepler
U401697
RIVERSIDE ENERGY COMPANY, LLC
Still Run 6
Not Started
$15,960
YES
Kingston
U300413
KINGSTON MINING, INC.
Kingston No. 9 Mine
Not Started
$0
YES
Kingston
O301103
KINGSTON MINING, INC.
WVDEP Kingston Haulroad
Not Started
$51,000
YES
Liberty
U501407
INDEPENDENCE COAL COMPANY, INC.
Midway Deep Mine
Not Started
$42,600
YES
Liberty
U500496
OMAR MINING COMPANY
Pin Oak Mine
Not Started
$10,000
YES
Litwar
U301112
RIVERSIDE ENERGY COMPANY, LLC
Riffe Branch Mine No. 1
Not Started
$16,520
YES
Litwar
O300612
RIVERSIDE ENERGY COMPANY, LLC
Horse Creek Haul Road
Not Started
$20,000
YES
Mammoth
U300808
KANAWHA ENERGY COMPANY
Eagle No. 2 Deep Mine
Not Started
$58,520
YES
Marfork
U401206
PIONEER FUEL CORPORATION
WVDEP Little Eagle Deep Mine
Not Started
$21,240
YES
Nicholas
S301107
ALEX ENERGY, INC.
Federal Surface Mine
Not Started
$654,000
YES
Nicholas
S301107
ALEX ENERGY, INC.
 
Not Started
585, 680
YES
Rawl
U502795
RAWL SALES & PROCESSING COMPANY
Stockton #3A
Not Started
$48,800
NO
Rawl
U502695
RAWL SALES & PROCESSING COMPANY
Stockton #3
Not Started
$48,800
NO
Rawl
U503998
SPARTAN MINING COMPANY
Jade #3
Not Started
$19,320
NO
Rockspring
U502107
ARACOMA COAL COMPANY, INC.
Mine No. 9
Not Started
$27,360
YES
Rockspring
U505192
ARACOMA COAL COMPANY, INC.
Messenger Branch Mine No. 1
Not Started
$65,880
YES
Rockspring
O500209
ROCKSPRING DEVELOPMENT, INC.
Camp Creek Complex
Not Started
$788,040
YES
Twilight
U501498
ELK RUN COAL COMPANY, INC.
Black Knight III Mine
Not Started
$108,560
YES
Bandmill
H071200
BANDMILL COAL CORPORATION
Taplin Haulroad
Reclaim-Only
$40,000
NO
Bandmill
H071200
BANDMILL COAL CORPORATION
Taplin Haulroad
Reclaim-Only
$10,000
NO
Bandmill
S501596
BANDMILL COAL CORPORATION
Wade #3 Surface Mine
Reclaim-Only
$54,800
NO
Bandmill
S502393
BANDMILL COAL CORPORATION
Tower Mountain Surface Mine
Reclaim-Only
$683,298
NO
Bandmill
S000580
HIGHLAND MINING COMPANY
Whitman Creek Surface
Reclaim-Only
$664,320
NO
Bandmill
S000580
HIGHLAND MINING COMPANY
Whitman Creek Surface
Reclaim-Only
325, 600
NO
Bandmill
S500194
HIGHLAND MINING COMPANY
Highland #1 Surface Mine
Reclaim-Only
$2,527,600
NO
Bandmill
S500201
HIGHLAND MINING COMPANY
Georges Creek Surface Mine
Reclaim-Only
$1,183,360
NO
Bandmill
S501796
HIGHLAND MINING COMPANY
North Surface Mine #1
Reclaim-Only
$1,492,264
NO
Bandmill
S503096
HIGHLAND MINING COMPANY
Freeze Fork Surface Mine
Reclaim-Only
$3,606,400
NO
Bandmill
S503096
HIGHLAND MINING COMPANY
Freeze Fork Surface Mine
Reclaim-Only
$160,000
NO
Bandmill
S505389
HIGHLAND MINING COMPANY
Whitman #2 Surface
Reclaim-Only
$1,937,208
NO
Bandmill
S505489
HIGHLAND MINING COMPANY
Whitman #3 Surface
Reclaim-Only
336, 864
NO
Bandmill
WV1016938
HIGHLAND MINING COMPANY
Freeze Fork Surface Mine
Reclaim-Only
$984,000
NO
Bandmill
S504189
HIGHLAND MINING COMPANY
North Surface Mine
Reclaim-Only
$585,120
NO

5
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Bandmill
O3785
TRACE CREEK COAL COMPANY
Holden 29 Refuse Facility
Reclaim-Only
$336,600
NO
Bandmill
O3785
TRACE CREEK COAL COMPANY
Holden 29 Refuse Facility
Reclaim-Only
$126,720
NO
Bandmill
O504286
TRACE CREEK COAL COMPANY
Old Elm Haulroad
Reclaim-Only
$14,000
NO
Bandmill
O504691
TRACE CREEK COAL COMPANY
Holden 29 Materials Handling
Reclaim-Only
$30,000
NO
Bandmill
O5382
TRACE CREEK COAL COMPANY
Laurel Fork Haulroad
Reclaim-Only
$1,000
NO
Bandmill
O5382
TRACE CREEK COAL COMPANY
Laurel Fork Haulroad
Reclaim-Only
$26,000
NO
Bandmill
O5382
TRACE CREEK COAL COMPANY
Laurel Fork Haulroad
Reclaim-Only
$1,000
NO
Bandmill
S504186
TRACE CREEK COAL COMPANY
Old Elm Surface
Reclaim-Only
$1,324,320
NO
Bandmill
S506288
TRACE CREEK COAL COMPANY
Mutual #1 Surface
Reclaim-Only
$1,631,840
NO
Bandmill
S505389
ALEX ENERGY, INC.
Whitman #2 Surface
Reclaim-Only
$913,000
YES
Bandmill
D001982
ARACOMA COAL COMPANY, INC.
8-C Mine
Reclaim-Only
$16,200
YES
Bandmill
U500500
ARACOMA COAL COMPANY, INC.
Bee Hollow Deep Mine
Reclaim-Only
$10,000
YES
Bandmill
H071200
BANDMILL COAL CORPORATION
Taplin Haulroad
Reclaim-Only
$1,000
YES
Bandmill
O005082
BANDMILL COAL CORPORATION
Earling Plant
Reclaim-Only
$25,000
YES
Bandmill
S502100
BANDMILL COAL CORPORATION
Right Hand Fork Surface Mine
Reclaim-Only
$1,210,000
YES
Bandmill
S502100
BANDMILL COAL CORPORATION
Right Hand Fork Surface Mine
Reclaim-Only
$105,000
YES
Bandmill
S501596
BANDMILL COAL CORPORATION
Wade #3 Surface Mine
Reclaim-Only
$1,513,200
YES
Bandmill
U021383
BANDMILL COAL CORPORATION
Wade Eagle Deep Mine
Reclaim-Only
$40,873
YES
Bandmill
O501104
HIGHLAND MINING COMPANY
North Haulroad
Reclaim-Only
$51,000
YES
Bandmill
P501114
HIGHLAND MINING COMPANY
Prospect Permit
Reclaim-Only
$6,500
YES
Bandmill
S000580
HIGHLAND MINING COMPANY
Whitman Creek Surface
Reclaim-Only
$855,080
YES
Bandmill
S500194
HIGHLAND MINING COMPANY
Highland #1 Surface Mine
Reclaim-Only
$1,037,400
YES
Bandmill
S500201
HIGHLAND MINING COMPANY
Georges Creek Surface Mine
Reclaim-Only
$1,128,640
YES
Bandmill
S501796
HIGHLAND MINING COMPANY
North Surface Mine #1
Reclaim-Only
$4,120
YES
Bandmill
S503096
HIGHLAND MINING COMPANY
Freeze Fork Surface Mine
Reclaim-Only
$1,513,600
YES
Bandmill
S503408
HIGHLAND MINING COMPANY
Sandy Gap Surface Mine
Reclaim-Only
$535,680
YES
Bandmill
S504189
HIGHLAND MINING COMPANY
North Surface Mine No. 2
Reclaim-Only
$380,512
YES
Bandmill
S508486
HIGHLAND MINING COMPANY
South Copperas Surface Mine
Reclaim-Only
$1,148,752
YES
Bandmill
U009283
RUM CREEK COAL SALES, INC.
Shively Deep Mine
Reclaim-Only
$10,000
YES
Bandmill
S500104
RUM CREEK COAL SALES, INC.
Anna Branch #2 Surface Mine
Reclaim-Only
$121,250
YES
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
Mountaineer Deep Mine No. 1
Reclaim-Only
$548,120
YES
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
Mountaineer Deep Mine No. 1
Reclaim-Only
$285,248
YES
Bens Creek – Black Bear
U503897
COBRA NATURAL RESOURCES, LLC
Mountaineer Alma A Deep Mine No. 1
Reclaim-Only
$723,640
YES
Bens Creek – Black Bear
O002685
COBRA NATURAL RESOURCES, LLC
Ben Creek Load Out
Reclaim-Only
$77,000
YES
Bens Creek – Black Bear
O500788
COBRA NATURAL RESOURCES, LLC
Mate Creek Load Out
Reclaim-Only
$30,000
YES
Bens Creek – Black Bear
O502386
COBRA NATURAL RESOURCES, LLC
Ben Creek Slurry Impoundment
Reclaim-Only
$1,852,780
YES
Bens Creek – Black Bear
O504191
COBRA NATURAL RESOURCES, LLC
Material Handling Facility
Reclaim-Only
$22,000
YES
Bens Creek – Black Bear
O505088
COBRA NATURAL RESOURCES, LLC
Black Bear Prep Plant
Reclaim-Only
$128,000
YES
Bens Creek – Black Bear
S401395
COBRA NATURAL RESOURCES, LLC
Low Gap Surface Mine No. 2
Reclaim-Only
$617,694
YES
Bens Creek – Black Bear
S504988
COBRA NATURAL RESOURCES, LLC
Ben Creek Surface Mine No. 1
Reclaim-Only
$316,800
YES
Bens Creek – Black Bear
U500498
COBRA NATURAL RESOURCES, LLC
Ridge Alma C Deep Mine
Reclaim-Only
$11,440
YES
Bens Creek – Black Bear
U500590
COBRA NATURAL RESOURCES, LLC
Hernshaw B-1 Deep
Reclaim-Only
$27,720
YES
Bens Creek – Black Bear
U503592
COBRA NATURAL RESOURCES, LLC
Sharkey Branch Lower Cedar Grove No. 2
Reclaim-Only
$28,224
YES
Bens Creek – Black Bear
U503792
COBRA NATURAL RESOURCES, LLC
Mountaineer Mine Sharkey Portal
Reclaim-Only
$22,176
YES
Bens Creek – Black Bear
U504491
COBRA NATURAL RESOURCES, LLC
Hernshaw C-1 Deep Mine
Reclaim-Only
$18,422
YES
Bens Creek – Black Bear
S400400
PREMIUM ENERGY, LLC
Surface Mine No. 3
Reclaim-Only
$4,555,000
YES
Bens Creek – Black Bear
S501307
PREMIUM ENERGY, LLC
Horsepen Highwall Miner No. 1
Reclaim-Only
$55,000
YES
Bens Creek– Black Bear
S502099
PREMIUM ENERGY, LLC
Surface Mine No. 2
Reclaim-Only
6,945, 000
YES
Bens Creek – Black Bear
S501608
PREMIUM ENERGY, LLC
Koon Knob Surface Mine No. 1
Reclaim-Only
$1,100,000
YES
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
Raw Mine No. 1
Reclaim-Only
$5,200
NO
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
Cucumber Mine (Raw)
Reclaim-Only
$223,600
YES
Cucumber
U007584
RIVERSIDE ENERGY COMPANY, LLC
Wesley-Postar Mine & Road & Siding
Reclaim-Only
$574,600
YES
Cucumber
U402387
RIVERSIDE ENERGY COMPANY, LLC
Apache Mine
Reclaim-Only
$88,400
YES
Delbarton
P502112
DELBARTON MINING COMPANY
Dingess Camp Branch Prospect
Reclaim-Only
$8,500
YES
Elk Run
O506086
EAGLE ENERGY INC.
Brown’s Branch Slurry Impoundment
Reclaim-Only
503, 200
YES
Elk Run
O004383
EAGLE ENERGY INC.
 
Reclaim-Only
$334,400
YES
Elk Run
Prospect
ELK RUN COAL COMPANY, INC.
Nod Point Prospect No. 2
Reclaim-Only
$1,500
YES
Elk Run
U066300
ELK RUN COAL COMPANY, INC.
Queen / Black Queen Mine
Reclaim-Only
$1,032,906
YES
Elk Run
P502213
PERFORMANCE COAL COMPANY
Eagle Water Study
Reclaim-Only
$3,000
YES
Elk Run
P300114
PERFORMANCE COAL COMPANY
Eagle Water Study
Reclaim-Only
$500
YES
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
Poplar Ridge Mine
Reclaim-Only
$18,200
NO
Erbacon
H052900
BROOKS RUN MINING COMPANY, LLC
#3B & #5B Haulroad
Reclaim-Only
$19,000
YES
Erbacon
H056200
BROOKS RUN MINING COMPANY, LLC
#8A Haulroad
Reclaim-Only
$27,000
YES

6
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Erbacon
U062000
BROOKS RUN MINING COMPANY, LLC
Mine #4
Reclaim-Only
$311,509
YES
Erbacon
O200301
BROOKS RUN MINING COMPANY, LLC
Birch River Haulroad
Reclaim-Only
$42,000
YES
Erbacon
O200787
BROOKS RUN MINING COMPANY, LLC
Thomas Mountain Haulroad
Reclaim-Only
$10,000
YES
Erbacon
S102690
BROOKS RUN MINING COMPANY, LLC
Surface 7
Reclaim-Only
$257,280
YES
Erbacon
S200205
BROOKS RUN MINING COMPANY, LLC
Brandy Station
Reclaim-Only
$370,880
YES
Erbacon
U200401
BROOKS RUN MINING COMPANY, LLC
Mercer Deep Mine
Reclaim-Only
$15,400
YES
Erbacon
U200493
BROOKS RUN MINING COMPANY, LLC
9A Deep Mine
Reclaim-Only
$38,760
YES
Erbacon
U200593
BROOKS RUN MINING COMPANY, LLC
9B Deep Mine
Reclaim-Only
$25,080
YES
Erbacon
U200609
BROOKS RUN MINING COMPANY, LLC
Sumter Deep Mine
Reclaim-Only
$171,120
YES
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
Popler Ridge Mine
Reclaim-Only
$2,600
NO
Erbacon
P052600
BROOKS RUN MINING COMPANY, LLC
Wolf Creek Prep Plant
Reclaim-Only
$39,000
YES
Erbacon
P201414
BROOKS RUN MINING COMPANY, LLC
Sumter Prospect 2
Reclaim-Only
$2,500
YES
Erbacon
P202014
BROOKS RUN MINING COMPANY, LLC
Mine No. 4
Reclaim-Only
$1,500
YES
Erbacon
R062000
BROOKS RUN MINING COMPANY, LLC
Refuse Area #1B
Reclaim-Only
$142,480
YES
Erbacon
S007185
BROOKS RUN MINING COMPANY, LLC
Brks. Ck. Surface Mine
Reclaim-Only
$150,000
YES
Erbacon
U051600
BROOKS RUN MINING COMPANY, LLC
#4A Deep Mine
Reclaim-Only
$45,600
YES
Erbacon
U102691
BROOKS RUN MINING COMPANY, LLC
Mine 5 - Deep Mine
Reclaim-Only
$77,720
YES
Erbacon
U200900
BROOKS RUN MINING COMPANY, LLC
Southridge Area Deep 1 UK
Reclaim-Only
$87,000
YES
Erbacon
U201000
BROOKS RUN MINING COMPANY, LLC
Southridge Area Deep 2 LK
Reclaim-Only
$65,000
YES
Erbacon
U201005
BROOKS RUN MINING COMPANY, LLC
Saylor A
Reclaim-Only
$16,520
YES
Erbacon
U201105
BROOKS RUN MINING COMPANY, LLC
Saylor B
Reclaim-Only
$11,800
YES
Erbacon
U201400
BROOKS RUN MINING COMPANY, LLC
10A Mine
Reclaim-Only
$75,640
YES
Erbacon
U201689
BROOKS RUN MINING COMPANY, LLC
Mine 16 - DM
Reclaim-Only
$53,680
YES
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
Poplar Ridge
Reclaim-Only
$83,200
YES
Erbacon
UO35900
BROOKS RUN MINING COMPANY, LLC
Mine #1
Reclaim-Only
$19,000
YES
Erbacon
D000782
BROOKS RUN MINING COMPANY, LLC
Mine 11 & 12 - DM
Reclaim-Only
$16,536
YES
Erbacon
D011082
BROOKS RUN MINING COMPANY, LLC
Thomas Mtn. DM
Reclaim-Only
$10,000
YES
Erbacon
I048200
BROOKS RUN MINING COMPANY, LLC
Lick Creek Loadout
Reclaim-Only
$10,000
YES
Erbacon
P203507
BROOKS RUN MINING COMPANY, LLC
Jackson Bridge
Reclaim-Only
$500
YES
Erbacon
S200310
BROOKS RUN MINING COMPANY, LLC
Antietam Mine
Reclaim-Only
$0
YES
Erbacon
S200487
BROOKS RUN MINING COMPANY, LLC
Little Birch 1 SM
Reclaim-Only
$108,000
YES
Erbacon
U051200
BROOKS RUN MINING COMPANY, LLC
3A Deep
Reclaim-Only
$10,000
YES
Erbacon
U201498
BROOKS RUN MINING COMPANY, LLC
Thomas Mt. UK Mine
Reclaim-Only
$35,880
YES
Erbacon
U307186
BROOKS RUN MINING COMPANY, LLC
FP 2 Deep Mine
Reclaim-Only
$10,000
YES
Erbacon
D004781
BROOKS RUN MINING COMPANY, LLC
Mine 14 - DM
Reclaim-Only
$10,000
YES
Erbacon
H047100
BROOKS RUN MINING COMPANY, LLC
Wolf Creek Haulroad
Reclaim-Only
$170,000
YES
Erbacon
U101991
BROOKS RUN MINING COMPANY, LLC
7A Deep Mine
Reclaim-Only
$22,000
YES
Erbacon
U200105
BROOKS RUN MINING COMPANY, LLC
Cove Mountain
Reclaim-Only
$217,080
YES
Erbacon
D011382
KINGWOOD MINING COMPANY, LLC
Birds Creek Mine
Reclaim-Only
$17,920
YES
Erbacon
R067300
KINGWOOD MINING COMPANY, LLC
Albright Refuse (Valley Point)
Reclaim-Only
$2,355,840
YES
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
K Mine & Prep Plant
Reclaim-Only
$926,640
YES
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
K Mine & Prep Plant
Reclaim-Only
$15,520
YES
Erbacon
O100898
KINGWOOD MINING COMPANY, LLC
Whitetail Refuse
Reclaim-Only
$744,640
YES
Erbacon
U100893
KINGWOOD MINING COMPANY, LLC
Plum Mine
Reclaim-Only
$88,920
YES
Goals
S301299
ALEX ENERGY, INC.
Edwight Surface Mine
Reclaim-Only
$1,938,960
NO
Goals
S301299
ALEX ENERGY, INC.
Edwight Surface Mine
Reclaim-Only
$1,755,000
NO
Goals
S301299
ALEX ENERGY, INC.
Edwight Surface Mine
Reclaim-Only
$31,040
NO
Goals
U301799
INDEPENDENCE COAL COMPANY, INC.
Tunnel Mine
Reclaim-Only
$31,360
NO
Goals
S301299
ALEX ENERGY, INC.
Edwight Surface Mine
Reclaim-Only
$6,680,000
YES
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
Shumate Powellton Surface Mine
Reclaim-Only
$119,560
YES
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
Shumate Powellton Surface Mine
Reclaim-Only
$75,440
YES
Goals
U301406
MARFORK COAL COMPANY, INC.
Parker Peerless
Reclaim-Only
$67,640
YES
Green Valley
O001083
GREEN VALLEY COAL COMPANY
Blue Branch Refuse
Reclaim-Only
$151,980
NO
Green Valley
O001083
GREEN VALLEY COAL COMPANY
Blue Branch Refuse
Reclaim-Only
$85,000
NO
Green Valley
P064200
GREEN VALLEY COAL COMPANY
No. 4 Plant (Panther)
Reclaim-Only
$15,000
NO
Green Valley
U005985
GREEN VALLEY COAL COMPANY
White Buck #2
Reclaim-Only
$19,080
NO
Green Valley
O015583
GREEN VALLEY COAL COMPANY
Quinwood Plant
Reclaim-Only
$49,200
NO
Green Valley
U014882
GREEN VALLEY COAL COMPANY
Grassy #1
Reclaim-Only
$11,400
NO
Green Valley
R067100
GREEN VALLEY COAL COMPANY
Airport Refuse
Reclaim-Only
$10,000
NO
Green Valley
U306686
GREEN VALLEY COAL COMPANY
No. 3 Panther Creek
Reclaim-Only
$25,800
NO
Green Valley
H035600
GREEN VALLEY COAL COMPANY
White Buck #2 Road
Reclaim-Only
$13,000
YES
Green Valley
O001083
GREEN VALLEY COAL COMPANY
Blue Branch Refuse
Reclaim-Only
$542,270
YES
Green Valley
O001083
GREEN VALLEY COAL COMPANY
Blue Branch Refuse
Reclaim-Only
$309,920
YES
Green Valley
O001083
GREEN VALLEY COAL COMPANY
Blue Branch Refuse
Reclaim-Only
$226,480
YES

7
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Green Valley
O008683
GREEN VALLEY COAL COMPANY
Leslie Refuse
Reclaim-Only
$113,000
YES
Green Valley
O008683
GREEN VALLEY COAL COMPANY
Leslie Refuse
Reclaim-Only
$92,360
YES
Green Valley
R069000
GREEN VALLEY COAL COMPANY
Adkins Lick Refuse
Reclaim-Only
$257,180
YES
Green Valley
R070700
GREEN VALLEY COAL COMPANY
No. 1 Refuse A
Reclaim-Only
$111,000
YES
Green Valley
R070700
GREEN VALLEY COAL COMPANY
No. 1 Refuse A
Reclaim-Only
$5,000
YES
Green Valley
U005985
GREEN VALLEY COAL COMPANY
White Buck #2
Reclaim-Only
$180,921
YES
Green Valley
U300409
GREEN VALLEY COAL COMPANY
Sewell Mine No. 1
Reclaim-Only
$78,120
YES
Green Valley
U302912
GREEN VALLEY COAL COMPANY
Potato Hole Knob Deep Mine
Reclaim-Only
$77,720
YES
Green Valley
O015583
GREEN VALLEY COAL COMPANY
Quinwood Plant
Reclaim-Only
$265,600
YES
Green Valley
O015583
GREEN VALLEY COAL COMPANY
Quinwood Plant
Reclaim-Only
$54,080
YES
Green Valley
U014882
GREEN VALLEY COAL COMPANY
Grassy #1
Reclaim-Only
$145,920
YES
Green Valley
U014882
GREEN VALLEY COAL COMPANY
Grassy #1
Reclaim-Only
$106,020
YES
Green Valley
U014882
GREEN VALLEY COAL COMPANY
Grassy #1
Reclaim-Only
$72,960
YES
Green Valley
U301407
GREEN VALLEY COAL COMPANY
Hominy Creek
Reclaim-Only
$51,920
YES
Inman Admiral
D010182
BLACK CASTLE MINING COMPANY
Randolph Deep Mine
Reclaim-Only
$183,960
YES
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
White Castle
Reclaim-Only
$1,477,840
YES
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
White Castle
Reclaim-Only
$32,760
YES
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
White Castle
Reclaim-Only
$18,200
YES
Inman Admiral
S601189
ELK RUN COAL COMPANY, INC.
Black Castle No. 3
Reclaim-Only
$783,520
YES
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
Black Castle No. 2 (George’s Branch)
Reclaim-Only
$1,742,000
YES
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
Black Castle No. 2 (George’s Branch)
Reclaim-Only
$18,000
YES
Inman Admiral
S501400
INDEPENDENCE COAL COMPANY, INC.
Ramo Surface Mine
Reclaim-Only
$14,000
YES
Inman Admiral
O509588
OMAR MINING COMPANY
Ridgetop Haulroad
Reclaim-Only
$88,000
YES
Inman Admiral
S007076
OMAR MINING COMPANY
Chesterfield Surface Mine
Reclaim-Only
$60,750
YES
Inman Admiral
U040300
OMAR MINING COMPANY
Chesterfield No. 12 Deep Mine
Reclaim-Only
$10,000
YES
Kepler
R063000
DUCHESS COAL COMPANY
Four Pole Refuse
Reclaim-Only
$50,000
NO
Kepler
D006982
BIG BEAR MINING COMPANY
Big Bear No. 5 Mine
Reclaim-Only
$10,000
YES
Kepler
O010783
BIG BEAR MINING COMPANY
Gabions
Reclaim-Only
183, 700
YES
Kepler
O017483
BIG BEAR MINING COMPANY
Prep Plant/Refuse
Reclaim-Only
$274,560
YES
Kepler
U058900
BIG BEAR MINING COMPANY
Eagle #5 Mine
Reclaim-Only
$17,100
YES
Kepler
O005983
HERNDON PROCESSING COMPANY, LLC
Keystone 2 Refuse Disposal
Reclaim-Only
$668,800
YES
Kepler
O007882
HERNDON PROCESSING COMPANY, LLC
Keystone No. 2 Prep Plant
Reclaim-Only
$31,280
YES
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WVDEP Paynter Branch North Surface Mine
Reclaim-Only
$2,435,000
YES
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WVDEP Paynter Branch North Surface Mine
Reclaim-Only
$147,800
YES
Kepler
S400896
PAYNTER BRANCH MINING, INC.
WVDEP Paynter Branch Surface Mine No. 1
Reclaim-Only
$1,694,880
YES
Kepler
S401298
PAYNTER BRANCH MINING, INC.
WVDEP AZ Litz Surface Mine
Reclaim-Only
$1,315,000
YES
Kepler
U503496
PIONEER MINING, INC.
WVDEP Muddy Bridge Deep Mine No. 1
Reclaim-Only
$957,472
YES
Kepler
U503596
PIONEER MINING, INC.
WVDEP Muddy Bridge Deep Mine No. 2
Reclaim-Only
$664,942
YES
Kepler
NPDES WV 1012207
RIVERSIDE ENERGY COMPANY, LLC
Stonehouse Treatment Facilty
Reclaim-Only
$10,000
YES
Kepler
U047100
RIVERSIDE ENERGY COMPANY, LLC
Still Run #9 Mine
Reclaim-Only
$11,400
YES
Kepler
U402195
RIVERSIDE ENERGY COMPANY, LLC
Jims Branch 1
Reclaim-Only
$13,200
YES
Kepler
U400196
RIVERSIDE ENERGY COMPANY, LLC
Jims Branch 3A
Reclaim-Only
$11,760
YES
Kepler
U400295
RIVERSIDE ENERGY COMPANY, LLC
Still Run 1
Reclaim-Only
$21,960
YES
Kepler
U400595
RIVERSIDE ENERGY COMPANY, LLC
Sugar Run 1
Reclaim-Only
$10,000
YES
Kepler
U400695
RIVERSIDE ENERGY COMPANY, LLC
Sugar Run 2
Reclaim-Only
$10,000
YES
Kepler
U400697
RIVERSIDE ENERGY COMPANY, LLC
Still Run 4
Reclaim-Only
$19,800
YES
Kepler
U400901
RIVERSIDE ENERGY COMPANY, LLC
Still Run 12
Reclaim-Only
$10,000
YES
Kepler
U401100
RIVERSIDE ENERGY COMPANY, LLC
Still Run 10
Reclaim-Only
$10,000
YES
Kepler
U401300
RIVERSIDE ENERGY COMPANY, LLC
Copperhead Mine
Reclaim-Only
$21,560
YES
Kepler
U401497
RIVERSIDE ENERGY COMPANY, LLC
Still Run 5
Reclaim-Only
$43,920
YES
Kepler
U401200
RIVERSIDE ENERGY COMPANY, LLC
Adkins Branch 1 (Alpine)
Reclaim-Only
$35,040
YES
Kingston
P300115
KINGSTON MINING, INC.
Kingston Mining -White Oak Prospect
Reclaim-Only
$3,000
NO
Kingston
 
KINGSTON MINING, INC.
Kingston Mountain Prospect
Reclaim-Only
$4,000
NO
Kingston
P301012
KINGSTON RESOURCES, INC.
Fifteeen Mile Prospect Mine
Reclaim-Only
$2,000
YES
Kingston
P301413
KINGSTON RESOURCES, INC.
Fifteeen Mile II Prospect Mine
Reclaim-Only
$500
YES
Kingston
Prospect No. 9
KINGSTON RESOURCES, INC.
Weirwood
Reclaim-Only
$500
YES
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
Red Cedar
Reclaim-Only
$1,292,560
NO
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
Jacks Branch Buffalo Deep Mine
Reclaim-Only
$390,000
NO
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
Jacks Branch Buffalo Deep Mine
Reclaim-Only
$30,000
NO
Liberty
U501887
INDEPENDENCE COAL COMPANY, INC.
Harley Deep Mine
Reclaim-Only
$390,000
NO
Liberty
O501992
OMAR MINING COMPANY
Chesterfield Preparation Facility
Reclaim-Only
$1,069,600
NO

8
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Liberty
U002685
INDEPENDENCE COAL COMPANY, INC.
Davidson Deep Mine
Reclaim-Only
$45,560
NO
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
Cook Deep Mine
Reclaim-Only
$13,000
NO
Liberty
O501106
INDEPENDENCE COAL COMPANY, INC.
Bull Creek Haulroad
Reclaim-Only
$45,000
YES
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
Red Cedar
Reclaim-Only
$2,972,440
YES
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
Red Cedar
Reclaim-Only
$35,000
YES
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
Jacks Branch Buffalo Deep Mine
Reclaim-Only
$12,000
YES
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
Jacks Branch Buffalo Deep Mine
Reclaim-Only
$9,000
YES
Liberty
U500594
INDEPENDENCE COAL COMPANY, INC.
Allegiance Deep Mine
Reclaim-Only
$27,600
YES
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
Spirit Deep Mine
Reclaim-Only
$113,160
YES
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
Spirit Deep Mine
Reclaim-Only
$11,040
YES
Liberty
U501398
INDEPENDENCE COAL COMPANY, INC.
Justice/Revolution Deep Mine
Reclaim-Only
$465,400
YES
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
Silver Maple No. 1 Deep Mine
Reclaim-Only
$39,000
YES
Liberty
U502191
OMAR MINING COMPANY
White Oak Deep Mine
Reclaim-Only
$111,000
YES
Liberty
U501892
OMAR MINING COMPANY
Scotch Pine No. 1 Deep Mine
Reclaim-Only
$44,840
YES
Litwar
P402708
BROOKS RUN MINING COMPANY, LLC
Oozley Branch
Reclaim-Only
$1,000
YES
Litwar
O011783
LITWAR PROCESSING COMPANY, LLC
Lick Branch Impoundment
Reclaim-Only
$297,560
YES
Litwar
O007583
LITWAR PROCESSING COMPANY, LLC
VC Red Ash Tipple
Reclaim-Only
$10,000
YES
Litwar
P300514
RIVERSIDE ENERGY COMPANY, LLC
Lower War Eagle Prospect No. 2
Reclaim-Only
$500
YES
Litwar
U400102
RIVERSIDE ENERGY COMPANY, LLC
Bens Creek 1 Mine
Reclaim-Only
$12,320
YES
Litwar
O014483
RIVERSIDE ENERGY COMPANY, LLC
#5 Refuse
Reclaim-Only
$133,200
YES
Litwar
O014883
RIVERSIDE ENERGY COMPANY, LLC
Alpine Prep Plant
Reclaim-Only
$34,000
YES
Mammoth
P302013
ALEX ENERGY, INC.
White Oak Prospect
Reclaim-Only
$500
YES
Mammoth
P303212
ALEX ENERGY, INC.
Republic 3 Eagle Prospect Mine
Reclaim-Only
$500
YES
Mammoth
P304412
ALEX ENERGY, INC.
Eagle Land Prospect
Reclaim-Only
$1,000
YES
Mammoth
S004577
JACKS BRANCH COAL COMPANY
Legacy Fault Island
Reclaim-Only
$1,581,200
YES
Mammoth
S007085
JACKS BRANCH COAL COMPANY
Dunn Contour
Reclaim-Only
$49,000
YES
Mammoth
S008379
JACKS BRANCH COAL COMPANY
Legacy Area 5
Reclaim-Only
$1,436,480
YES
Mammoth
S301491
JACKS BRANCH COAL COMPANY
Hughes Creek Surface Mine
Reclaim-Only
$591,360
YES
Mammoth
S303790
JACKS BRANCH COAL COMPANY
Hughes Fork Surface Mine
Reclaim-Only
$793,280
YES
Mammoth
S600886
JACKS BRANCH COAL COMPANY
Dunn - Staten Surface
Reclaim-Only
$580,800
YES
Mammoth
U005584
JACKS BRANCH COAL COMPANY
Mine 105 & 115 #2 Gas Deep Mine
Reclaim-Only
$29,440
YES
Mammoth
U300990
JACKS BRANCH COAL COMPANY
Custer Hollow Coalburg
Reclaim-Only
$19,080
YES
Mammoth
U302200
JACKS BRANCH COAL COMPANY
Custer Hollow Lower Winifrede Mine
Reclaim-Only
$33,800
YES
Mammoth
U601889
JACKS BRANCH COAL COMPANY
Mine #165 Coalburg Deep Mine
Reclaim-Only
$72,800
YES
Mammoth
S000684
JACKS BRANCH COAL COMPANY
Riffle-Bullpush Surface
Reclaim-Only
$1,008,928
YES
Mammoth
S007885
JACKS BRANCH COAL COMPANY
Custer Hollow Surface Mine
Reclaim-Only
$252,760
YES
Mammoth
S008883
JACKS BRANCH COAL COMPANY
Dunn Surface No. 1 Mine
Reclaim-Only
$1,112,832
YES
Mammoth
Z000481
JACKS BRANCH COAL COMPANY
Graveyard Surface No. 1 Mine
Reclaim-Only
$1,010,240
YES
Mammoth
U045400
JACKS BRANCH COAL COMPANY
Stockton #130 Mine
Reclaim-Only
$155,800
YES
Mammoth
U301500
JACKS BRANCH COAL COMPANY
Shadrick Mine No. 160 5 Blk Deep
Reclaim-Only
$40,200
YES
Mammoth
E010300
KANAWHA ENERGY COMPANY
Mine No. 14
Reclaim-Only
$31,000
YES
Mammoth
E011000
KANAWHA ENERGY COMPANY
Mine No. 15
Reclaim-Only
$357,627
YES
Mammoth
O304391
KANAWHA ENERGY COMPANY
Big Creek #2 Haul Road
Reclaim-Only
$295,000
YES
Mammoth
P071300
KANAWHA ENERGY COMPANY
No. 10 Prep Plant
Reclaim-Only
$87,120
YES
Mammoth
P303611
KANAWHA ENERGY COMPANY
Kelleys Creek Winifrede Prospect
Reclaim-Only
$2,000
YES
Mammoth
R064900
KANAWHA ENERGY COMPANY
Jackson Hollow Refuse
Reclaim-Only
$372,400
YES
Mammoth
S300691
KANAWHA ENERGY COMPANY
Kanawha Services No. 1 Surface
Reclaim-Only
$2,259,600
YES
Mammoth
S304589
KANAWHA ENERGY COMPANY
Big Creek Number 2
Reclaim-Only
$3,094,240
YES
Mammoth
S600988
KANAWHA ENERGY COMPANY
Alloy #1 Surface Mine (Boomer)
Reclaim-Only
$988,000
YES
Mammoth
S602389
KANAWHA ENERGY COMPANY
Boomer Mountaintop Surface Mine
Reclaim-Only
$457,000
YES
Mammoth
U300904
KANAWHA ENERGY COMPANY
Eagle No. 1 Deep Mine
Reclaim-Only
$50,000
YES
Mammoth
U301290
KANAWHA ENERGY COMPANY
Alloy Plant and Refuse Area
Reclaim-Only
$548,946
YES
Mammoth
P300205
KANAWHA ENERGY COMPANY
No. 3 Prospect
Reclaim-Only
1, 500
YES
Mammoth
P301111
KANAWHA ENERGY COMPANY
Prospect Scrabble Creek - Big Creek Pro
Reclaim-Only
$4,000
YES
Mammoth
P303310
KANAWHA ENERGY COMPANY
Boomer Branch Prospect
Reclaim-Only
$4,000
YES
Mammoth
P303511
KANAWHA ENERGY COMPANY
Big Creek - Scrabble Prospect
Reclaim-Only
$2,000
YES
Mammoth
S303390
KANAWHA ENERGY COMPANY
Scrabble Creek #1
Reclaim-Only
$112,476
YES
Mammoth
O301907
KANAWHA ENERGY COMPANY
Jarrett Branch Haul Road
Reclaim-Only
$10,000
YES
Mammoth
U300504
KANAWHA ENERGY COMPANY
Fourmile Coalburg Deep Mine
Reclaim-Only
$81,000
YES
Mammoth
U300896
KANAWHA ENERGY COMPANY
Upper Winifrede Deep Mine
Reclaim-Only
86, 640
YES
Mammoth
U302099
KANAWHA ENERGY COMPANY
Mammoth #2 Gas Deep
Reclaim-Only
$208,320
YES
Marfork
 
BOONE EAST DEVELOPMENT CO.
 
Reclaim-Only
$0
NO
Marfork
P300515
MARFORK COAL COMPANY, INC.
Slip Ridge - Birch Prospect
Reclaim-Only
$6,500
NO

9
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Marfork
U304292
PERFORMANCE COAL COMPANY
Upper Big Branch South / Montcoal Eagle Mine
Reclaim-Only
$57,960
NO
Marfork
U304292
PERFORMANCE COAL COMPANY
Upper Big Branch South / Montcoal Eagle Mine
Reclaim-Only
$118,680
NO
Marfork
U304292
PERFORMANCE COAL COMPANY
Upper Big Branch South / Montcoal Eagle Mine
Reclaim-Only
$16,560
NO
Marfork
D004081
CLEAR FORK COAL COMPANY
Mine No. 14
Reclaim-Only
$60,060
YES
Marfork
S014278
CLEAR FORK COAL COMPANY
 
Reclaim-Only
$65,400
YES
Marfork
U008383
CLEAR FORK COAL COMPANY
Mine No. 9 & 11
Reclaim-Only
$15,600
YES
Marfork
U013000
CLEAR FORK COAL COMPANY
Mine No. 11
Reclaim-Only
$96,560
YES
Marfork
P500213
ELK RUN COAL COMPANY, INC.
Rockhouse Powellton Prospect
Reclaim-Only
$2,000
YES
Marfork
P300415
KINGSTON MINING, INC.
Toney Fork Prospect
Reclaim-Only
$4,500
YES
Marfork
P301513
MARFORK COAL COMPANY, INC.
White Queen Low Gap Hollow Prospect
Reclaim-Only
$1,000
YES
Marfork
Pending
MARFORK COAL COMPANY, INC.
Long Ridge Prospect No. 2
Reclaim-Only
$4,500
YES
Marfork
U301394
MARFORK COAL COMPANY, INC.
Lower Cedar Grove Mine
Reclaim-Only
$207,400
YES
Marfork
P301011
MARFORK COAL COMPANY, INC.
Eagle Mine Prospect
Reclaim-Only
$4,500
YES
Marfork
S300809
MARFORK COAL COMPANY, INC.
Slip Ridge HWM Surface
Reclaim-Only
$31,648
YES
Marfork
E003800
PERFORMANCE COAL COMPANY
Irene Portal No. 7 Mine
Reclaim-Only
$98,280
YES
Marfork
U304292
PERFORMANCE COAL COMPANY
Upper Big Branch South / Montcoal Eagle Mine
Reclaim-Only
$22,080
YES
Marfork
S011977
PIONEER FUEL CORPORATION
 
Reclaim-Only
$605,000
YES
Marfork
S400596
PIONEER FUEL CORPORATION
WVDEP Simmons Fork Surface Mine No. 1
Reclaim-Only
$2,765,280
YES
Marfork
S401595
PIONEER FUEL CORPORATION
WVDEP Winifrede No. 2
Reclaim-Only
$2,319,440
YES
Marfork
O400708
PIONEER FUEL CORPORATION
Little Eagle Breaker Rock
Reclaim-Only
$115,000
YES
Martin County
E001700
GREYEAGLE COAL COMPANY
Greyeagle Mine No. 1
Reclaim-Only
$964,440
YES
Martin County
O013983
GREYEAGLE COAL COMPANY
Left Fork Slurry Impoundment
Reclaim-Only
$6,181,722
YES
Nicholas
S005185
ALEX ENERGY, INC.
Right Fork Surface Mine
Reclaim-Only
$2,417,680
NO
Nicholas
S300199
ALEX ENERGY, INC.
 
Reclaim-Only
$1,591,760
NO
Nicholas
S300598
ALEX ENERGY, INC.
Robinson North Surface Mine
Reclaim-Only
$710,000
NO
Nicholas
S300598
ALEX ENERGY, INC.
Robinson North Surface Mine
Reclaim-Only
$513,360
NO
Nicholas
S300702
ALEX ENERGY, INC.
Right Fork Surface Mine
Reclaim-Only
$10,000
NO
Nicholas
S300706
ALEX ENERGY, INC.
Hatchet Surface Mine
Reclaim-Only
$140,400
NO
Nicholas
S301391
ALEX ENERGY, INC.
Area “A” West (Wildcat Surface)
Reclaim-Only
$2,455,200
NO
Nicholas
S301405
ALEX ENERGY, INC.
PGM Surface Mine No. 1
Reclaim-Only
$1,724,480
NO
Nicholas
U301497
ALEX ENERGY, INC.
Sugar Camp Winifrede Deep Mine
Reclaim-Only
$24,120
NO
Nicholas
U301497
ALEX ENERGY, INC.
Sugar Camp Winifrede Deep Mine
Reclaim-Only
$6,480
NO
Nicholas
S006385
ALEX ENERGY, INC.
Twenty Mile Creek Mine No. 901 Old Tate Surface Mine
Reclaim-Only
$212,400
NO
Nicholas
U302494
POWER MOUNTAIN COAL COMPANY
Winifrede X-1 Deep
Reclaim-Only
$21,600
NO
Nicholas
S300598
ALEX ENERGY, INC.
 
Reclaim-Only
$8,480,000
YES
Nicholas
S300598
ALEX ENERGY, INC.
Robinson North Surface Mine
Reclaim-Only
$2,040,000
YES
Nicholas
S300702
ALEX ENERGY, INC.
Right Fork Surface Mine
Reclaim-Only
$1,513,520
YES
Nicholas
S300706
ALEX ENERGY, INC.
Hatchet Surface Mine
Reclaim-Only
$3,600
YES
Nicholas
S300907
ALEX ENERGY, INC.
Lonestar Surface Mine
Reclaim-Only
$1,310,000
YES
Nicholas
S301391
ALEX ENERGY, INC.
Area “A” West (Wildcat Surface)
Reclaim-Only
$158,400
YES
Nicholas
S301405
ALEX ENERGY, INC.
PGM Surface Mine No. 1
Reclaim-Only
$467,840
YES
Nicholas
S302003
ALEX ENERGY, INC.
Tate Run Surface Mine
Reclaim-Only
$1,292,040
YES
Nicholas
U301497
ALEX ENERGY, INC.
Sugar Camp Winifrede Deep Mine
Reclaim-Only
$106,920
YES
Nicholas
S301192
ALEX ENERGY, INC.
Area “X”
Reclaim-Only
$222,404
YES
Nicholas
S301806
ALEX ENERGY, INC.
Spruce Run
Reclaim-Only
$773,280
YES
Nicholas
H015500
PEERLESS EAGLE COAL COMPANY
DR-21 Majestic Haul Road
Reclaim-Only
$10,000
YES
Nicholas
O002184
PEERLESS EAGLE COAL COMPANY
Old Glory Imp #1 @ Rock Camp Branch
Reclaim-Only
$301,000
YES
Nicholas
O004183
PEERLESS EAGLE COAL COMPANY
Rock Camp Br Refuse / Old Glory Prep
Reclaim-Only
$103,200
YES
Nicholas
O300293
PEERLESS EAGLE COAL COMPANY
Hutchinson Branch Haul Road
Reclaim-Only
$48,000
YES
Nicholas
O300589
PEERLESS EAGLE COAL COMPANY
Enoch Branch Haul Road
Reclaim-Only
$10,000
YES
Nicholas
O301286
PEERLESS EAGLE COAL COMPANY
Rock Camp Refuse
Reclaim-Only
$322,000
YES
Nicholas
O302093
PEERLESS EAGLE COAL COMPANY
Spirit Ridge Surface / #19 Deep / Haulroads
Reclaim-Only
$23,000
YES
Nicholas
S300590
PEERLESS EAGLE COAL COMPANY
Spirit Ridge Surface Mine
Reclaim-Only
$858,600
YES
Nicholas
U300489
PEERLESS EAGLE COAL COMPANY
Mine #15
Reclaim-Only
$57,960
YES
Nicholas
U302194
PEERLESS EAGLE COAL COMPANY
Lilly Fork Surface Mine / #21 Deep Mine
Reclaim-Only
$30,240
YES
Nicholas
O010983
PEERLESS EAGLE COAL COMPANY
Elm Refuse Area
Reclaim-Only
$10,000
YES
Nicholas
S008776
PEERLESS EAGLE COAL COMPANY
Majestic Surface Mine & Deep Mine #7
Reclaim-Only
$10,000
YES

10
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Nicholas
U026900
PEERLESS EAGLE COAL COMPANY
Deep Mine # 3 and Haul Road
Reclaim-Only
$10,000
YES
Nicholas
U045800
PEERLESS EAGLE COAL COMPANY
Deep Mine # 4
Reclaim-Only
$10,000
YES
Nicholas
U065700
PEERLESS EAGLE COAL COMPANY
Deep Mine # 6
Reclaim-Only
$10,000
YES
Nicholas
U067600
PEERLESS EAGLE COAL COMPANY
Majestic Surface Mine B & Deep Mine # 7A
Reclaim-Only
$10,000
YES
Nicholas
O300895
POWER MOUNTAIN COAL COMPANY
S1-A Refuse @ Jerry Fork Refuse
Reclaim-Only
$489,600
YES
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
Matewan Energy
Reclaim-Only
$10,000
NO
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
Sprouse Impoundment
Reclaim-Only
$911,240
NO
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
Sprouse Impoundment
Reclaim-Only
$14,388
NO
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
Crystal Fuels Alma Deep Mine
Reclaim-Only
$260,210
NO
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
Jade
Reclaim-Only
$27,440
NO
Rawl
D003181
RAWL SALES & PROCESSING COMPANY
Rocky @ Lick Creek
Reclaim-Only
$10,000
NO
Rawl
O507892
RAWL SALES & PROCESSING COMPANY
Sprigg Bridge
Reclaim-Only
$10,000
NO
Rawl
U066700
RAWL SALES & PROCESSING COMPANY
Shine
Reclaim-Only
$10,000
NO
Rawl
U507192
RAWL SALES & PROCESSING COMPANY
Top Gun Mine
Reclaim-Only
$65,320
NO
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
Matewan Energy
Reclaim-Only
$366,829
YES
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
Sprouse Impoundment
Reclaim-Only
$7,412
YES
Rawl
O504989
RAWL SALES & PROCESSING COMPANY
Cumberland Village
Reclaim-Only
$66,000
YES
Rawl
P057200
RAWL SALES & PROCESSING COMPANY
Sprouse Plant
Reclaim-Only
$684,200
YES
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
Crystal Fuels Alma Deep Mine
Reclaim-Only
$879,744
YES
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
Jade
Reclaim-Only
$212,985
YES
Rockspring
Prospect
LAUREL CREEK CO., INC.
Prospect
Reclaim-Only
$4,500
NO
Rockspring
U500601
ARACOMA COAL COMPANY, INC.
5-Block Deep Mine
Reclaim-Only
$91,120
YES
Rockspring
U507292
ARACOMA COAL COMPANY, INC.
West Fork No. 3 Deep Mine
Reclaim-Only
$456,000
YES
Rockspring
S504689
ARACOMA COAL COMPANY, INC.
Dingess Surface Mine
Reclaim-Only
$812,160
YES
Rockspring
O501090
ARACOMA COAL COMPANY, INC.
Prep Plant & Refuse Area
Reclaim-Only
$1,077,120
YES
Rockspring
U507692
ARACOMA COAL COMPANY, INC.
Seaboard Mine
Reclaim-Only
$26,560
YES
Rockspring
U500304
ARACOMA COAL COMPANY, INC.
Mine #5
Reclaim-Only
$66,000
YES
Rockspring
U501091
ARACOMA COAL COMPANY, INC.
Mine No. 2
Reclaim-Only
$11,280
YES
Rockspring
U502006
ARACOMA COAL COMPANY, INC.
Mine #8
Reclaim-Only
$31,200
YES
Rockspring
O505491
ROCKSPRING DEVELOPMENT, INC.
Stephens Fork Haulroad
Reclaim-Only
$28,000
YES
Rockspring
U002584
ROCKSPRING DEVELOPMENT, INC.
Camp Creek Complex
Reclaim-Only
$2,946,000
YES
Rockspring
P501014
ROCKSPRING DEVELOPMENT, INC.
Camp Creek Complex
Reclaim-Only
$500
YES
Rockspring
Pending
ROCKSPRING DEVELOPMENT, INC.
Camp Creek Prospect II
Reclaim-Only
$1,000
YES
Rockspring
O503290
ROCKSPRING DEVELOPMENT, INC.
Guyan Loadout / Baber Loadout
Reclaim-Only
$10,000
YES
Superior
S501798
HIGHLAND MINING COMPANY
Superior Surface Mine
Reclaim-Only
$5,858,800
NO
Superior
S501798
HIGHLAND MINING COMPANY
Superior Bottom Road
Reclaim-Only
$47,340
NO
Superior
S501798
HIGHLAND MINING COMPANY
Mitigation & Compensation Agreement
Reclaim-Only
$8,566
NO
Superior
U502398
SPARTAN MINING COMPANY
Diamond Energy Mine
Reclaim-Only
$6,840
NO
Superior
U506688
SPARTAN MINING COMPANY
No. 38 Mine
Reclaim-Only
$20,160
NO
Superior
U506688
SPARTAN MINING COMPANY
No. 38 Mine
Reclaim-Only
12, 600
NO
Superior
U501100
SPARTAN MINING COMPANY
Diamond Energy Complex
Reclaim-Only
$22,080
NO
Superior
U502194
SPARTAN MINING COMPANY
Cow Creek Deep Mine
Reclaim-Only
$26,400
NO
Superior
O004484
STIRRAT COAL COMPANY
Stirrat Prep Plant & Refuse Facility
Reclaim-Only
$725,400
NO
Superior
O004484
STIRRAT COAL COMPANY
Stirrat Prep Plant & Refuse Facility
Reclaim-Only
$18,600
NO
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC.
Superior Surface Mine
Reclaim-Only
$292,400
YES
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC.
Superior Surface Mine
Reclaim-Only
$22,000
YES
Superior
U502398
SPARTAN MINING COMPANY
Diamond Energy Mine
Reclaim-Only
$52,440
YES
Superior
U506688
SPARTAN MINING COMPANY
No. 38 Mine
Reclaim-Only
$22,680
YES
Superior
U501100
SPARTAN MINING COMPANY
Diamond Energy Complex
Reclaim-Only
$85,560
YES
Superior
U502194
SPARTAN MINING COMPANY
Cow Creek Deep Mine
Reclaim-Only
$36,960
YES
Superior
U502194
SPARTAN MINING COMPANY
Cow Creek Deep Mine
Reclaim-Only
$31,680
YES
Superior
O004484
STIRRAT COAL COMPANY
Stirrat Prep Plant & Refuse Facility
Reclaim-Only
$505,920
YES
Superior
U501087
STIRRAT COAL COMPANY
Mine No. 28
Reclaim-Only
$10,000
YES
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
 
Reclaim-Only
$3,685,000
NO
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
Crescent No. 2 Surface Mine
Reclaim-Only
$1,350,000
YES
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
Crescent No. 2 Surface Mine
Reclaim-Only
$1,020,000
NO
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
Crescent No. 2 Surface Mine
Reclaim-Only
$95,000
NO
Twilight
S502408
INDEPENDENCE COAL COMPANY, INC.
Twilight III-A Surface Mine
Reclaim-Only
$619,200
YES
Twilight
U301695
PERFORMANCE COAL COMPANY
Feats Coal North Mine, Upper Big Branch
Reclaim-Only
$64,240
YES
Twilight
U501295
INDEPENDENCE COAL COMPANY, INC.
Twilight Chilton R Mine
Reclaim-Only
$11,658
NO
Twilight
O501496
ELK RUN COAL COMPANY, INC.
Blue Pennant / Twilight Haulroad
Reclaim-Only
$100,000
YES
Twilight
O507891
ELK RUN COAL COMPANY, INC.
Blue Pennant Coal Transfer
Reclaim-Only
$44,000
YES

11
    


COMPLEX
PERMIT NUMBER
PERMITTEE
MINE NAME
SITE STATUS
BOND AMOUNT
SELF BONDED?
Twilight
U501198
ELK RUN COAL COMPANY, INC.
Black Knight II Mine
Reclaim-Only
$245,760
YES
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
Upper Big Branch Surface Mine
Reclaim-Only
$1,100,000
YES
Twilight
S500398
INDEPENDENCE COAL COMPANY, INC.
Twilight II Surface Mine
Reclaim-Only
$5,290,000
YES
Twilight
S502396
INDEPENDENCE COAL COMPANY, INC.
Twilight MTR Surface Mine
Reclaim-Only
$12,445,000
YES
Twilight
U502196
INDEPENDENCE COAL COMPANY, INC.
Twilight Upper Cedar Grove
Reclaim-Only
$46,800
YES
Twin Star
S401197
TWIN STAR MINING, INC. - WV
Bull Creek Surface Mine No. 1
Reclaim-Only
$763,040
YES
Unassigned
P500612
INDEPENDENCE COAL COMPANY, INC.
Blue Pennant Prospect
Reclaim-Only
$5,000
YES
White Flame
S501501
WHITE FLAME ENERGY, INC.
Surface Mine No. 10
Reclaim-Only
$5,800,000
YES
White Flame
S502097
WHITE FLAME ENERGY, INC.
Surface Mine No. 9
Reclaim-Only
$774,360
YES


12
    


Exhibit 2
[Reclamation Funding Agreement]







RECLAMATION FUNDING AGREEMENT
THIS AGREEMENT (as it may be amended or modified from time to time, this “ Reclamation Funding Agreement ”) is made and entered into as of July 12, 2016, by and among: Alpha Natural Resources, Inc. (“ANR”), on behalf of itself and its debtor-affiliates (collectively with ANR, the “ Debtors ” or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the “ Reorganized Debtors ”); Contura Energy, Inc. (the “ Purchaser ”); the Illinois Department of Natural Resources; the Kentucky Energy and Environment Cabinet, Department for Natural Resources; the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee (“OSMRE”); the Virginia Department of Mines, Minerals and Energy; and the West Virginia Department of Environmental Protection (collectively, the “ Regulatory Authorities ” and, together with the Debtors and the Purchaser, the “ Parties ”).
WHEREAS , on August 3, 2015 (the “ Petition Date ”), the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the “ Chapter 11 Cases ”);
WHEREAS , on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the “Plan”), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS , the Regulatory Authorities have issued certain permits (collectively, the “ Permits ”) to the Debtors in connection with the Debtors’ operation and reclamation of certain mines and facilities within their respective states or commonwealths (collectively, the “ States ”);
WHEREAS , the Debtors entered into a transaction (the “ Sale Transaction ”) pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith), with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date providing for (a) the sale of certain of the Debtors’ assets to the Purchaser, (b) the assumption of certain of the Debtors’ liabilities by the Purchaser (c) the transfer of certain of the Permits (collectively, the “ Transferred Permits ”) to the Purchaser and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors’ assets that are not sold pursuant to the Sale Transaction (collectively, the “ Retained Assets ”);
WHEREAS , a primary purpose of the Reorganized Debtors will be to hold and satisfy their obligations under the Permits associated with the Retained Assets (collectively, the “ Retained Permits ”) and to complete all reclamation requirements of the Permits associated with




the Retained Assets including the management of reclamation activities at certain sites with only reclamation activities to be completed (collectively, the “ Reclaim-Only Sites ”);
WHEREAS , attached hereto as Exhibit 1 is a schedule identifying each of the Retained Permits associated with a Reclaim-Only Site by State;
WHEREAS , contemporaneously herewith the Debtors and the Purchaser together have entered into separate settlement agreements (collectively, the “ State Settlement Agreements ”) with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration and water treatment (including long term water treatment) in their respective States in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq . (“SMCRA”), its state analogues and other applicable mining and environmental related statutes and regulations (collectively with SMCRA, the “ Mining Laws ”) on Mining Complexes operated under Permits previously issued to ANR and its subsidiaries;
WHEREAS , contemporaneously herewith the Debtors, the Purchaser and Citicorp North America, Inc. (the “ First Lien Agent ”) have entered into that certain Stipulation Regarding Water Treatment Obligations (the “ Water Treatment Stipulation ”) with the Environmental Protection Agency (“EPA”) to define the framework and funding for the fulfillment of the Reorganized Debtors’ and the Purchaser’s obligations under the EPA Consent Decree (as defined in the Water Treatment Stipulation) and the Reorganized Debtors’ other water treatment obligations;
WHEREAS , the Parties desire to enter into this Reclamation Funding Agreement to provide certain funding for the reclamation, mitigation and water treatment (including long-term water treatment) and management work to be done on the Reclaim-Only Sites; and
WHEREAS , the terms of this Reclamation Funding Agreement are incorporated into the Plan, and the Parties intend that this Reclamation Funding Agreement and the related State Settlement Agreements shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;
NOW THEREFORE , in consideration of the foregoing, the execution by each of the Regulatory Authorities of their respective State Settlement Agreements and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1.     Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed them in the Plan. In addition to the terms defined above, the following terms have the following meanings herein:
(a)    “ Effective Date ” means the date upon which the Plan shall become effective in accordance with its terms.
(b)    “ Free Cash Flow ” means cash generated by the Reorganized Debtors in an amount equal to earnings before taxes, multiplied by an amount equal to one minus the tax rate applicable to the Reorganized Debtors, plus an add-back of all depreciation and amortization expenses, plus or minus, as

2
    


applicable, any decrease or increase to the Reorganized Debtors’ net working capital, minus capital expenditures, measured for any Quarterly Period.
(c)    “ Funding Threshold Amount ” means the funded amount of a State’s Restricted Cash Reclamation Account that is equal to 125% of the remaining Total Cost of Reclamation in that State.
(d)    “ Fully Reclaim, ” “ Fully Reclaimed ” or “ Full Reclamation ” means, as to any or all Retained Permits, the completion of reclamation, as provided for by the applicable Mining Laws.
(e)    “ Restricted Cash Reclamation Accounts ” means a separate interest bearing segregated deposit account for each of the Regulatory Authorities established pursuant to the applicable State Settlement Agreement in which account such Regulatory Authority shall hold a first priority security interest, perfected by “control” under the applicable Uniform Commercial Code.
(f)    “ Total Cost of Reclamation ” means the estimate of the total cost of reclamation, mitigation, the calculated net present value of the cost of water treatment for the period of time specified by the Regulatory Authority’s standards for long-term water treatment and management associated with the Reorganized Debtors’ mining operations. For the avoidance of doubt, the Reorganized Debtors’ proposed Total Cost of Reclamation for Retained Permits in each State shall be reviewed by each applicable Regulatory Authority for completeness and reasonableness of approach.
2.     Funding of the Restricted Cash Reclamation Accounts by the Purchaser.
(a)     Periodic Payments . In accordance with the allocations determined pursuant to Section 5 hereof, the Purchaser shall pay the aggregate amount of $50,000,000 into the various Restricted Cash Reclamation Accounts as follows:
(i)    $8,000,000 immediately upon the Effective Date;
(ii)    $10,000,000 on the anniversary of the Effective Date in each of 2017, 2018, and 2019; and
(iii)    $12,000,000 on the anniversary of the Effective Date in 2020.
(b)     Contingent Payment Obligation . In addition to the amounts paid pursuant to Section 2(a) hereof, and in accordance with the allocations set forth in Section 5 hereof, the Purchaser shall pay up to an aggregate amount of $50,000,000 (the “ Contingent Payment Obligation Cap ”) into the various Restricted Cash Reclamation Accounts as a contingent payment obligation from 2021 through 2025 (the “ Contingent Payment Obligation ”).

3
    


(i)    The Purchaser shall make Contingent Payment Obligation contributions into the Restricted Cash Reclamation Accounts up to the Contingent Payment Obligation Cap only in the following circumstances:
(1)    If and to the extent that the Reorganized Debtors do not contribute $50,000,000 of Free Cash Flow into the Restricted Cash Reclamation Accounts through December 31, 2020 as set forth in Section 4(b) hereof; and
(2)    If the Reorganized Debtors make any Reorganized ANR Contingent Revenue Payment (as such term is defined in the Plan) that reduces the amount of Free Cash Flow that the Reorganized Debtors otherwise would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment, then a Contingent Payment Obligation will be payable in the amount of the difference between (A) the amount of Free Cash Flow that the Reorganized Debtors would have contributed to the Restricted Cash Reclamation Accounts had they not made such Reorganized ANR Contingent Revenue Payment and (B) the amount of Free Cash Flow actually contributed.
(ii)    For the avoidance of doubt, the Purchaser’s obligations under Section 2(b)(i) hereof shall be cumulative up to the amount of the Contingent Payment Obligation Cap.
(iii)    The Purchaser shall make any Contingent Payment Obligation contributions up to the Contingent Payment Obligation Cap according to the following schedule, solely to the extent due and payable as of the applicable payment date in accordance with Section 2(b)(i) hereof:
(1)    $10,000,000 on the anniversary of the Effective Date in each of 2021, 2022, 2023 and 2024; and
(2)    The difference between any Contingent Payment Obligation contributions made and the Contingent Payment Obligation Cap on the anniversary of the Effective Date in 2025.
(c)     Parent Guaranty. The Purchaser’s obligations under this Section 2 shall be guaranteed by its parent, if any.
3.     Limitations on Certain Transactions by the Purchaser. The Purchaser agrees that, for five years after the Effective Date, it will not sell all or substantially all of its assets unless either:

4
    


(a)    the purchaser(s) of such assets agree(s) to assume the liabilities of the Purchaser under this Reclamation Funding Agreement; or
(b)    such liabilities are otherwise satisfied or funded.
4.     Funding of the Restricted Cash Reclamation Accounts by the Reorganized Debtors.
(a)    Periodic Payments.
(i)    In accordance with the allocations determined in accordance with Section 5 hereof, the Reorganized Debtors shall pay and deposit the aggregate amount of $109,000,000 into the various Restricted Cash Reclamation Accounts through 2025.
(ii)    Such payments shall be made in the following aggregate amounts: $5,000,000 in 2016, $10,000,000 in each of 2017 and 2018 and $12,000,000 in each year from 2019 through 2025.
(iii)    All such payments shall be made in equal monthly installments in the year in which they are due. The Reorganized Debtors shall make the first payment on or before August 31, 2016 and the remaining payments on or before the last day of each subsequent month through December 2025.
(b)     Excess Cash Flow Payments.
(i)    In addition to the amounts to be paid pursuant to Section 4(a) above, and in accordance with the allocations determined pursuant to Section 5 hereof, the Reorganized Debtors shall pay and deposit 50% of the Free Cash Flow that they generate into the Restricted Cash Reclamation Accounts. Such payments are over and above the amounts required to be paid in Section 4(a) above.
(ii)    Such payments of Free Cash Flow shall be made with respect to each State until either: (1) all Reclaim-Only sites have been Fully Reclaimed and any long-term water treatment or water management obligations in such State are fully funded and have been covered by a method approved by the regulator for the applicable State (such as a long-term water treatment trust); or (2) the Funding Threshold Amount has been reached with respect to each State, it being understood that once the Funding Threshold Amount for a State has been reached, (A) the Free Cash Flow contribution obligation to the Restricted Cash Reclamation Account for the applicable State shall be reduced to an amount necessary to maintain such Funding Threshold Amount, until such time as all Reclaim-Only Sites have been Fully Reclaimed and (B) the remaining portion of the Free Cash Flow contribution shall be deposited into the Restricted Cash Reclamation Accounts of the remaining States in accordance with the allocations determined pursuant to Section 5 hereof, as adjusted.

5
    


(iii)    The Free Cash Flow contributions required under this Section shall be paid within 30 days after each calendar quarter end, subject to reconciliation on an annual basis.
(c)     Surety Collateral Returns .
(i)    Any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer that has issued bonds in only one State will be paid into the Restricted Cash Reclamation Account of that State or otherwise dealt with in accordance with any applicable agreement among the Reorganized Debtors and such State.
(ii)    To the extent any collateral returned or received by the Reorganized Debtors from or with respect to any surety bond issuer whose bonds relate to permits in multiple States, such collateral shall be contributed to the Restricted Cash Reclamation Accounts for the applicable States: (1) in proportion to the dollar amounts of the bonds versus the amount of the collateral until the amount for any such State exceeds its Funding Threshold Amount; and (2) then to the other States in accordance with the allocations set forth in Section 5 hereof, as adjusted.
(d)    In the event of a merger or sale of all or substantially all of the assets of the Reorganized Debtors, then all of the Reorganized Debtors’ obligations under Sections 4(a) above and 6(c) below shall either (i) be accelerated and paid in full on a net present value basis into the applicable Restricted Cash Reclamation Accounts or (ii) be assumed by the purchaser or surviving entity, before or at the closing of such transaction; provided , however, that the Restructuring Transactions, including, without limitation, the NewCo Asset Sale, shall not be deemed to be mergers or sales within the meaning of this Section 4(d). For the avoidance of doubt, nothing in this Section 4(d) shall:
(i)    limit or interfere with any Regulatory Authority’s exercise of discretion with respect to approving any permit transfer or other required regulatory approval; or
(ii)    alter or affect the obligations of the Reorganized Debtors or any of their successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
5.     Allocation of Periodic Contributions .
(a)    Periodic contributions required under Sections 2 and 4 (collectively, the “ Periodic Contributions ”) shall be allocated to the applicable States as set forth in this Section 5 .
(b)    For the years 2016 through 2018, the Periodic Contributions shall be allocated among the various Restricted Cash Reclamation Accounts based upon the

6
    


Debtors’ current relative asset retirement obligations in each State, as follows: 83% for West Virginia; 11.25% for Kentucky; 4% for Virginia; 1% for Illinois; and 0.75% for Tennessee.
(c)    Within 90 days of the Effective Date, the Reorganized Debtors shall begin an evaluation of all of their Permits and shall develop a Total Cost of Reclamation for each State. Such evaluation may be the same as any asset retirement obligation analysis previously undertaken by the Debtors. A preliminary Total Cost of Reclamation for each State shall be developed by July 1, 2017 and provided to each of the States at that time for their review and comment. A final Total Cost of Reclamation shall be provided to each of the States for their review and comment by July 1, 2018.
(d)    The allocation of Periodic Contributions to the Restricted Cash Reclamation Accounts shall be reassessed and adjusted bi-annually beginning on January 1, 2019 based upon the Total Cost of Reclamation in each of the States as of July 1, 2018, and the Periodic Contributions required under Sections 2 and 4 shall be made to the various Restricted Cash Reclamation Accounts in accordance with such adjusted allocations.
(e)    In the event that the Regulatory Authorities are unable to agree on adjusted allocations based upon the Total Cost of Reclamation, the allocations in Section 5(b) above shall continue to apply.
(f)    With respect to Tennessee, once the Reclamation Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s Restricted Cash Reclamation Account, as well as future periodic contributions to such account, shall be paid into the Reclamation Trust.
6.
Funding of the Reorganized Debtors’ Water Treatment Obligations Pursuant to the Water Treatment Stipulation
(a)    Pursuant to the Water Treatment Stipulation, the Reorganized Debtors will provide EPA and the Regulatory Authorities for the States in which their water treatment occurs (i) an annual summary of the expenditures on their water treatment for the previous year, (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Reorganized Debtors will provide EPA with copies of any budgets delivered to the Regulatory Authorities in accordance with the terms of the State Settlement Agreements.
(b)     The First Lien Lender Contribution
(i)    Pursuant to the Water Treatment Stipulation, on the Effective Date, the Reorganized Debtors, with the consent of the First Lien Lenders, shall pay from the First Lien Lenders’ collateral an additional $5 million to support the

7
    


Reorganized Debtors’ compliance with their water treatment obligations (the “ First Lien Lender Contribution ”).
(ii)    The First Lien Lender Contribution will be allocated equally among the States to be used for water treatment and other approved projects to improve water quality.
(iii)    On or prior to the Effective Date, the Reorganized Debtors shall create either of the following accounts (in either case, a “ Water Treatment Restricted Cash Account ”) with respect to each State to receive such State’s share of the First Lien Lender Contribution: (1) a segregated subaccount within the each State’s Restricted Cash Reclamation Account (as defined in the applicable State Settlement Agreement); or (2) a separate segregated restricted cash account. With respect to Tennessee, once the Water Treatment Trust (as defined in the State Settlement Agreement for Tennessee) is established, any funds in Tennessee’s Water Treatment Restricted Cash Account, as well as future periodic contributions to such account, shall be placed into the Tennessee Water Treatment Trust until the trust is fully funded as determined by OSMRE.
(c)     The Reorganized Debtor Contribution
(i)    Pursuant to the Water Treatment Stipulation, the Reorganized Debtors shall contribute $15 million into the Water Treatment Restricted Cash Accounts from 2017 through 2023 (the “ Reorganized Debtor Contribution ”) to fund compliance with their water treatment obligations, including their obligations under the EPA Consent Decree.
(ii)    The Reorganized Debtor Contribution shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on July 1, 2017:
YEAR
PAYMENT DATES
AGGREGATE ANNUAL  
PAYMENT AMOUNT
2017
July 1, October 1
$1,000,000
2018
January 1, April 1, July 1, October 1
$1,500,000
2019
January 1, April 1, July 1, October 1
$2,500,000
2020
January 1, April 1, July 1, October 1
$2,500,000
2021
January 1, April 1, July 1, October 1
$2,500,000
2022
January 1, April 1, July 1, October 1
$2,500,000
2023
January 1, April 1, July 1, October 1
$2,500,000
Total
 
$15,000,000

(iii)    The Reorganized Debtor Contribution for 2017 shall be divided equally among the States. Thereafter, (x) the Reorganized Debtors shall provide

8
    


20% of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust (as defined in the Water Treatment Stipulation) until such requirement is terminated pursuant to subparagraph (iv) below and (y) the remainder of the annual Reorganized Debtor Contribution shall be divided among the other States according to the percentage of actual expenditures on water treatment in each State; provided that, each State shall receive a minimum of at least $25,000 each year. The Reorganized Debtors will track their spending on water treatment in each State and submit a report to the applicable Regulatory Authority and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year.
(iv)    Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent Reorganized Debtor Contribution amounts shall be allocated among the other States in accordance with Section 6(c)(iii)(y) hereof.
(d)    The Reorganized Debtors will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the “ Minimum Balance ”) that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Reorganized Debtors and the applicable Regulatory Authority on an annual basis; provided that, nothing herein requires the Reorganized Debtors to designate more than $1,000,000 as the aggregate amount of Minimum Balances among the Water Treatment Restricted Cash Accounts in 2016. The Reorganized Debtors shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.
(e)    Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the State Settlement Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the State Settlement Agreements. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f)    For the avoidance of doubt, the funding to be provided to the Water Treatment Restricted Cash Accounts pursuant to the Water Treatment Stipulation or to the Restricted Cash Reclamation Accounts pursuant to this Reclamation Funding Agreement shall be used solely to fund the Reorganized Debtors’ obligations thereunder and shall not be used to assist or subsidize the Purchaser’s compliance.
7.     Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Reclamation Funding Agreement:

9
    


(a)    The Debtors and the Purchaser shall have executed a State Settlement Agreement with the applicable Regulatory Authority with respect to each State;
(b)    This Reclamation Funding Agreement, the Water Treatment Stipulation and the State Settlement Agreements shall have been approved by the Bankruptcy Court pursuant to the order confirming the Plan;
(c)    The Plan, as it may be amended consistent with the terms of this Reclamation Funding Agreement and the State Settlement Agreements, shall be confirmed on or before July 15, 2016;
(d)    The Effective Date shall occur on or before July 31, 2016;
(e)    There shall be no material adverse changes to the terms of the settlements by and among the Debtors, the First-Lien Lenders, the Second-Lien Lenders and the Unsecured Creditors Committee as filed with the Bankruptcy Court prior to May 25, 2016;
(f)    There shall be no material adverse changes to the terms of the solicitation version of the Plan filed on June 2, 2016; and
(g)    There shall be no material adverse changes to the business plan and projections of the Purchaser or the Reorganized Debtors filed with the Bankruptcy Court prior to May 25, 2016 or the business or operations of the Purchaser or the Reorganized Debtors, taken as a whole.
8.     Reclamation Funding Agreement and the Plan . In the event of a conflict between the terms of this Reclamation Funding Agreement and the Plan, this Reclamation Funding Agreement shall control.
9.     Covenants, Cooperation and Good Faith Efforts. The Parties agree to cooperate and work in good faith with each other to obtain a consensus as to the Total Cost of Reclamation and the allocation of Periodic Contributions as set forth in Section 5 hereof.
10.     Successors and Assigns. The provisions of this Reclamation Funding Agreement shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code, and shall inure to the benefit of the Parties and their successors and assigns.
11.     Entire Agreement. This Reclamation Funding Agreement, together with the State Settlement Agreements with respect to each State, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein.
12.     Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the

10
    


requisite authority (i) to execute and deliver this Reclamation Funding Agreement, and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) the execution, delivery and performance by it of this Reclamation Funding Agreement and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Reclamation Funding Agreement or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Reclamation Funding Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Reclamation Funding Agreement; and (d) the execution, delivery and performance by it (when such performance is due) of this Reclamation Funding Agreement does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to the Regulatory Authorities, the undersigned represents and warrants that he/she has authority to enter into this Reclamation Funding Agreement.
13.     No Reliance. Each Party represents and warrants that in entering into this Reclamation Funding Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Reclamation Funding Agreement, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
14.     Modification or Amendment. This Reclamation Funding Agreement may be modified or amended only by written agreement executed by each of the Parties.
15.     Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Reclamation Funding Agreement, and to consummate the transactions contemplated hereby and thereby.
16.     Construction. This Reclamation Funding Agreement has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Reclamation Funding Agreement so as to give rise to any presumption of convention regarding construction of this document. All terms of this Reclamation Funding Agreement were negotiated at arms’-length, and this Reclamation Funding Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.

11
    


17.     Headings. Titles and headings in this Reclamation Funding Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Reclamation Funding Agreement.
18.     Execution in Counterpart. This Reclamation Funding Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Reclamation Funding Agreement may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.
19.     Severability. If any provision of this Reclamation Funding Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
(Remainder of Page Intentionally Blank; Signatures to Follow)



12
    


IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
/s/ Mark M. Manno
 
 
By: Mark M. Manno
Its: EVP, General Counsel, CPO & Secretary
 
By:
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
Its:
 
By:
Its:

WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
Its:
 
By:
Its:

ILLINOIS DEPARTMENT OF
NATURAL RESOURCES
 
 
 
By:
Its:
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
/s/ John DeGroote
 
 
By: John DeGroote
Its: President and Secretary
 
By:
Its:

WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
Its:
 
By:
Its:

ILLINOIS DEPARTMENT OF
NATURAL RESOURCES
 
 
 
By:
Its:
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
Its:
 
By:
Its:

WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
/s/ Kristin A. Boggs
 
 
By: Kristin A. Boggs
Its: General Counsel
 
By:
Its:

ILLINOIS DEPARTMENT OF
NATURAL RESOURCES
 
 
 
By:
Its:
 






IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
Its:
 
By:
Its:

WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
Its:
 
By:
Its:

ILLINOIS DEPARTMENT OF
NATURAL RESOURCES
 
/s/ James Hafliger
 
By: James Hafliger
Its: Office of Mines and Minerals Director
 





IN WITNESS WHEREOF, the Parties hereto have executed this Reclamation Funding Agreement as of the date set forth above.
ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
Its:
 
By:
Its:

WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
Its:
 
By:
Its:

ILLINOIS DEPARTMENT OF
NATURAL RESOURCES
 
 
 
By:
Its:
 






ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
/s/ Joseph G. Pizarchik
By:
Its:
 
By: Joseph G. Pizarchik
Its: Director

WEST VIRGINIA DEPARTMENT OF ENVIRONMENT AL PROTECTION
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
 
By:
Its:
 
By:
Its:

ILLINOIS DEPARTMENT OF
NATURAL RESOURCES
 
 
 
By:
Its:
 





ALPHA NATURAL RESOURCES, INC., on behalf of itself and its debtor-affiliates
 
KENTUCKY ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES
 
 
 
By:
Its:
 
By:
Its:
 

CONTURA ENERGY, INC.
 
OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT
 
 
 
By:
Its:
 
By:
Its:

 
 
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
 
 
/s/ John Warren
By:
Its:
 
By: John Warren
Its: Director

ILLINOIS DEPARTMENT OF
NATURAL RESOURCES
 
 
 
By:
Its:
 







Exhibit 1
[Schedule of Retained Permits]







RETAINED PERMITS FOR RECLAIM-ONLY SITE STATE

COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
S502393
BANDMILL COAL CORPORATION
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S505389
HIGHLAND MINING COMPANY
WV
Bandmill
S505489
HIGHLAND MINING COMPANY
WV
Bandmill
WV1016938
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O3785
TRACE CREEK COAL COMPANY
WV
Bandmill
O504286
TRACE CREEK COAL COMPANY
WV
Band mill
O504691
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
O5382
TRACE CREEK COAL COMPANY
WV
Bandmill
S504186
TRACE CREEK COAL COMPANY
WV
Bandmill
S506288
TRACE CREEK COAL COMPANY
WV
Bandmill
S505389
ALEX ENERGY, INC.
WV
Bandmill
D001982
ARACOMA COAL COMPANY, INC.
WV
Bandmill
U500500
ARACOMA COAL COMPANY, INC.
WV
Bandmill
H071200
BANDMILL COAL CORPORATION
WV
Bandmill
O005082
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S502100
BANDMILL COAL CORPORATION
WV
Bandmill
S501596
BANDMILL COAL CORPORATION
WV
Bandmill
U021383
BANDMILL COAL CORPORATION
WV
Bandmill
O501104
HIGHLAND MINING COMPANY
WV
Bandmill
P501114
HIGHLAND MINING COMPANY
WV
Bandmill
S000580
HIGHLAND MINING COMPANY
WV
Bandmill
S500194
HIGHLAND MINING COMPANY
WV
Bandmill
S500201
HIGHLAND MINING COMPANY
WV
Bandmill
S501796
HIGHLAND MINING COMPANY
WV
Bandmill
S503096
HIGHLAND MINING COMPANY
WV
Bandmill
S503408
HIGHLAND MINING COMPANY
WV
Bandmill
S504189
HIGHLAND MINING COMPANY
WV
Bandmill
S508486
HIGHLAND MINING COMPANY
WV
Bandmill
U009283
RUM CREEK COAL SALES, INC.
WV
Bandmill
S500104
RUM CREEK COAL SALES, INC.
WV
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV




COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Bens Creek – Black Bear
U501391
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503897
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O002685
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O500788
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O502386
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O504191
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
O505088
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S401395
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S504988
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500498
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U500590
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503592
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U503792
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
U504491
COBRA NATURAL RESOURCES, LLC
WV
Bens Creek – Black Bear
S400400
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501307
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S502099
PREMIUM ENERGY, LLC
WV
Bens Creek – Black Bear
S501608
PREMIUM ENERGY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U401694
BROOKS RUN MINING COMPANY, LLC
WV
Cucumber
U007584
RIVERSIDE ENERGY COMPANY, LLC
WV
Cucumber
U402387
RIVERSIDE ENERGY COMPANY, LLC
WV
Delbarton
P502112
DELBARTON MINING COMPANY
WV
Elk Run
O506086
EAGLE ENERGY INC.
WV
Elk Run
O004383
EAGLE ENERGY INC.
WV
Elk Run
Prospect
ELK RUN COAL COMPANY, INC.
WV
Elk Run
U066300
ELK RUN COAL COMPANY, INC.
WV
Elk Run
P502213
PERFORMANCE COAL COMPANY
WV
Elk Run
P300114
PERFORMANCE COAL COMPANY
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H052900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H056200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U062000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200301
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
O200787
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S102690
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200205
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200401
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200493
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200593
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200609
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P052600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P201414
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P202014
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
R062000
BROOKS RUN MINING COMPANY, LLC
WV

2


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Erbacon
S007185
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051600
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U102691
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201000
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201005
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201400
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201689
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U202100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
UO35900
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D000782
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011082
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
I048200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
P203507
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200310
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
S200487
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U051200
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U201498
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U307186
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D004781
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
H047100
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U101991
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
U200105
BROOKS RUN MINING COMPANY, LLC
WV
Erbacon
D011382
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
R067300
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100798
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
O100898
KINGWOOD MINING COMPANY, LLC
WV
Erbacon
U100893
KINGWOOD MINING COMPANY, LLC
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
U301799
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301299
ALEX ENERGY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
S301100
INDEPENDENCE COAL COMPANY, INC.
WV
Goals
U301406
MARFORK COAL COMPANY, INC.
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
P064200
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
R067100
GREEN VALLEY COAL COMPANY
WV
Green Valley
U306686
GREEN VALLEY COAL COMPANY
WV

3


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Green Valley
H035600
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O001083
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
O008683
GREEN VALLEY COAL COMPANY
WV
Green Valley
R069000
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
R070700
GREEN VALLEY COAL COMPANY
WV
Green Valley
U005985
GREEN VALLEY COAL COMPANY
WV
Green Valley
U300409
GREEN VALLEY COAL COMPANY
WV
Green Valley
U302912
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
O015583
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U014882
GREEN VALLEY COAL COMPANY
WV
Green Valley
U301407
GREEN VALLEY COAL COMPANY
WV
Inman Admiral
D010182
BLACK CASTLE MINING COMPANY
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S507586
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S601189
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S602688
ELK RUN COAL COMPANY, INC.
WV
Inman Admiral
S501400
INDEPENDENCE COAL COMPANY, INC.
WV
Inman Admiral
O509588
OMAR MINING COMPANY
WV
Inman Admiral
S007076
OMAR MINING COMPANY
WV
Inman Admiral
U040300
OMAR MINING COMPANY
WV
Kepler
R063000
DUCHESS COAL COMPANY
WV
Kepler
D006982
BIG BEAR MINING COMPANY
WV
Kepler
O010783
BIG BEAR MINING COMPANY
WV
Kepler
O017483
BIG BEAR MINING COMPANY
WV
Kepler
U058900
BIG BEAR MINING COMPANY
WV
Kepler
O005983
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
O007882
HERNDON PROCESSING COMPANY, LLC
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400300
PAYNTER BRANCH MINING, INC.
WV
Kepler
S400896
PAYNTER BRANCH MINING, INC.
WV
Kepler
S401298
PAYNTER BRANCH MINING, INC.
WV
Kepler
U503496
PIONEER MINING, INC.
WV
Kepler
U503596
PIONEER MINING, INC.
WV
Kepler
NPDES WV 1012207
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U047100
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U402195
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400196
RIVERSIDE ENERGY COMPANY, LLC
WV

4


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Kepler
U400295
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400595
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400695
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400697
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U400901
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401100
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401300
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401497
RIVERSIDE ENERGY COMPANY, LLC
WV
Kepler
U401200
RIVERSIDE ENERGY COMPANY, LLC
WV
Kingston
P300115
KINGSTON MINING, INC.
WV
Kingston
 
KINGSTON MINING, INC.
WV
Kingston
P301012
KINGSTON RESOURCES, INC.
WV
Kingston
P301413
KINGSTON RESOURCES, INC.
WV
Kingston
Prospect No. 9
KINGSTON RESOURCES, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501887
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501992
OMAR MINING COMPANY
WV
Liberty
U002685
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
O501106
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
S503097
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501298
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500594
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U500694
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U501398
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U507991
INDEPENDENCE COAL COMPANY, INC.
WV
Liberty
U502191
OMAR MINING COMPANY
WV
Liberty
U501892
OMAR MINING COMPANY
WV
Litwar
P402708
BROOKS RUN MINING COMPANY, LLC
WV
Litwar
O011783
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
O007583
LITWAR PROCESSING COMPANY, LLC
WV
Litwar
P300514
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
U400102
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014483
RIVERSIDE ENERGY COMPANY, LLC
WV
Litwar
O014883
RIVERSIDE ENERGY COMPANY, LLC
WV
Mammoth
P302013
ALEX ENERGY, INC.
WV
Mammoth
P303212
ALEX ENERGY, INC.
WV
Mammoth
P304412
ALEX ENERGY, INC.
WV
Mammoth
S004577
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007085
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008379
JACKS BRANCH COAL COMPANY
WV

5


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Mammoth
S301491
JACKS BRANCH COAL COMPANY
WV
Mammoth
S303790
JACKS BRANCH COAL COMPANY
WV
Mammoth
S600886
JACKS BRANCH COAL COMPANY
WV
Mammoth
U005584
JACKS BRANCH COAL COMPANY
WV
Mammoth
U300990
JACKS BRANCH COAL COMPANY
WV
Mammoth
U302200
JACKS BRANCH COAL COMPANY
WV
Mammoth
U601889
JACKS BRANCH COAL COMPANY
WV
Mammoth
S000684
JACKS BRANCH COAL COMPANY
WV
Mammoth
S007885
JACKS BRANCH COAL COMPANY
WV
Mammoth
S008883
JACKS BRANCH COAL COMPANY
WV
Mammoth
Z000481
JACKS BRANCH COAL COMPANY
WV
Mammoth
U045400
JACKS BRANCH COAL COMPANY
WV
Mammoth
U301500
JACKS BRANCH COAL COMPANY
WV
Mammoth
E010300
KANAWHA ENERGY COMPANY
WV
Mammoth
E011000
KANAWHA ENERGY COMPANY
WV
Mammoth
O304391
KANAWHA ENERGY COMPANY
WV
Mammoth
P071300
KANAWHA ENERGY COMPANY
WV
Mammoth
P303611
KANAWHA ENERGY COMPANY
WV
Mammoth
R064900
KANAWHA ENERGY COMPANY
WV
Mammoth
S300691
KANAWHA ENERGY COMPANY
WV
Mammoth
S304589
KANAWHA ENERGY COMPANY
WV
Mammoth
S600988
KANAWHA ENERGY COMPANY
WV
Mammoth
S602389
KANAWHA ENERGY COMPANY
WV
Mammoth
U300904
KANAWHA ENERGY COMPANY
WV
Mammoth
U301290
KANAWHA ENERGY COMPANY
WV
Mammoth
P300205
KANAWHA ENERGY COMPANY
WV
Mammoth
P301111
KANAWHA ENERGY COMPANY
WV
Mammoth
P303310
KANAWHA ENERGY COMPANY
WV
Mammoth
P303511
KANAWHA ENERGY COMPANY
WV
Mammoth
S303390
KANAWHA ENERGY COMPANY
WV
Mammoth
O301907
KANAWHA ENERGY COMPANY
WV
Mammoth
U300504
KANAWHA ENERGY COMPANY
WV
Mammoth
U300896
KANAWHA ENERGY COMPANY
WV
Mammoth
U302099
KANAWHA ENERGY COMPANY
WV
Marfork
 
BOONE EAST DEVELOPMENT CO.
WV
Marfork
P300515
MARFORK COAL COMPANY, INC.
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
D004081
CLEAR FORK COAL COMPANY
WV
Marfork
S014278
CLEAR FORK COAL COMPANY
WV
Marfork
U008383
CLEAR FORK COAL COMPANY
WV
Marfork
U013000
CLEAR FORK COAL COMPANY
WV
Marfork
P500213
ELK RUN COAL COMPANY, INC.
WV
Marfork
P300415
KINGSTON MINING, INC.
WV
Marfork
P301513
MARFORK COAL COMPANY, INC.
WV

6


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Marfork
Pending
MARFORK COAL COMPANY, INC.
WV
Marfork
U301394
MARFORK COAL COMPANY, INC.
WV
Marfork
P301011
MARFORK COAL COMPANY, INC.
WV
Marfork
S300809
MARFORK COAL COMPANY, INC.
WV
Marfork
E003800
PERFORMANCE COAL COMPANY
WV
Marfork
U304292
PERFORMANCE COAL COMPANY
WV
Marfork
S011977
PIONEER FUEL CORPORATION
WV
Marfork
S400596
PIONEER FUEL CORPORATION
WV
Marfork
S401595
PIONEER FUEL CORPORATION
WV
Marfork
O400708
PIONEER FUEL CORPORATION
WV
Martin County
E001700
GREYEAGLE COAL COMPANY
WV
Martin County
O013983
GREYEAGLE COAL COMPANY
WV
Nicholas
S005185
ALEX ENERGY, INC.
WV
Nicholas
S300199
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S006385
ALEX ENERGY, INC.
WV
Nicholas
U302494
POWER MOUNTAIN COAL COMPANY
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300598
ALEX ENERGY, INC.
WV
Nicholas
S300702
ALEX ENERGY, INC.
WV
Nicholas
S300706
ALEX ENERGY, INC.
WV
Nicholas
S300907
ALEX ENERGY, INC.
WV
Nicholas
S301391
ALEX ENERGY, INC.
WV
Nicholas
S301405
ALEX ENERGY, INC.
WV
Nicholas
S302003
ALEX ENERGY, INC.
WV
Nicholas
U301497
ALEX ENERGY, INC.
WV
Nicholas
S301192
ALEX ENERGY, INC.
WV
Nicholas
S301806
ALEX ENERGY, INC.
WV
Nicholas
H015500
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O002184
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O004183
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300293
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300589
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O301286
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O302093
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
S300590
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U300489
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U302194
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O010983
PEERLESS EAGLE COAL COMPANY
WV

7


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Nicholas
S008776
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U026900
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U045800
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U065700
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
U067600
PEERLESS EAGLE COAL COMPANY
WV
Nicholas
O300895
POWER MOUNTAIN COAL COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rawl
D003181
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O507892
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U066700
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U507192
RAWL SALES & PROCESSING COMPANY
WV
Rawl
E002800
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O004184
RAWL SALES & PROCESSING COMPANY
WV
Rawl
O504989
RAWL SALES & PROCESSING COMPANY
WV
Rawl
P057200
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U502000
RAWL SALES & PROCESSING COMPANY
WV
Rawl
U504687
RAWL SALES & PROCESSING COMPANY
WV
Rockspring
Prospect
LAUREL CREEK CO., INC.
WV
Rockspring
U500601
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507292
ARACOMA COAL COMPANY, INC.
WV
Rockspring
S504689
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O501090
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U507692
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U500304
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U501091
ARACOMA COAL COMPANY, INC.
WV
Rockspring
U502006
ARACOMA COAL COMPANY, INC.
WV
Rockspring
O505491
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
U002584
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
P501014
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
Pending
ROCKSPRING DEVELOPMENT, INC.
WV
Rockspring
O503290
ROCKSPRING DEVELOPMENT, INC.
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
S501798
HIGHLAND MINING COMPANY
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV

8


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Superior
S501798
ROAD FORK DEVELOPMENT COMPANY, INC
WV
Superior
U502398
SPARTAN MINING COMPANY
WV
Superior
U506688
SPARTAN MINING COMPANY
WV
Superior
U501100
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
U502194
SPARTAN MINING COMPANY
WV
Superior
O004484
STIRRAT COAL COMPANY
WV
Superior
U501087
STIRRAT COAL COMPANY
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502007
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502408
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U301695
PERFORMANCE COAL COMPANY
WV
Twilight
U501295
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
O501496
ELK RUN COAL COMPANY, INC.
WV
Twilight
O507891
ELK RUN COAL COMPANY, INC.
WV
Twilight
U501198
ELK RUN COAL COMPANY, INC.
WV
Twilight
S301999
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S500398
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
S502396
INDEPENDENCE COAL COMPANY, INC.
WV
Twilight
U502196
INDEPENDENCE COAL COMPANY, INC.
WV
Twin Star
S401197
TWIN STAR MINING, INC. - WV
WV
Unassigned
P500612
INDEPENDENCE COAL COMPANY, INC.
WV
White Flame
S501501
WHITE FLAME ENERGY, INC.
WV
White Flame
S502097
WHITE FLAME ENERGY, INC.
WV
Wabash
39
WABASH MINE HOLDING COMPANY
IL
Wabash
276
WABASH MINE HOLDING COMPANY
IL
Wabash
290
WABASH MINE HOLDING COMPANY
IL
Wabash
158
WABASH MINE HOLDING COMPANY
IL
Wabash
Prospect
WABASH MINE HOLDING COMPANY
IL
Wabash
298
WABASH MINE HOLDING COMPANY
IL
Coalgood
8480322
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480324
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8480325
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485533
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487037
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487038
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8487039
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488083
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8488084
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489031
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8489032
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
6805012
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800014
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8800062
MARTIN COUNTY COAL CORPORATION
KY

9


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Martin County
8800207
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805179
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805182
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805188
PETER CAVE MINING COMPANY
KY
Martin County
8805189
PETER CAVE MINING COMPANY
KY
Martin County
8805190
PETER CAVE MINING COMPANY
KY
Martin County
8807000
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807002
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808008
PETER CAVE MINING COMPANY
KY
Martin County
8808015
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808016
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808017
PETER CAVE MINING COMPANY
KY
Roxana
8675269
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
2985329
ISLAND CREEK COAL COMPANY
KY
Sidney
2985332
ISLAND CREEK COAL COMPANY
KY
Sidney
8365601
BELFRY COAL CORPORATION
KY
Sidney
8585079
BELFRY COAL CORPORATION
KY
Sidney
8980573
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984146
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984399
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984400
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984424
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984430
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8985167
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985736
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985742
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985977
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985986
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987025
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987094
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8988168
LONG FORK COAL COMPANY
KY
Sidney
8988170
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989156
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989159
LONG FORK COAL COMPANY
KY
Coalgood
8485532
HARLAN RECLAMATION SERVICES LLC
KY
Coalgood
8485535
HARLAN RECLAMATION SERVICES LLC
KY
Marnti County
8805187
MARTIN COUNTY COAL CORPORATION
KY
Roxana
8675272
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675279
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675280
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675282
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
8984029
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984194
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984431
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984433
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984434
ROAD FORK DEVELOPMENT COMPANY,
KY

10


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Sidney
8984435
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984436
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984496
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985739
SIDNEY COAL COMPANY, INC.
KY
Martin County
8805175
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805186
MARTIN COUNTY COAL CORPORATION
KY
Sidney
8980835
SIDNEY COAL COMPANY, INC.
KY
Sidney
8980932
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984095
SIDNEY COAL COMPANY, INC.
KY
Sidney
8987082
SIDNEY COAL COMPANY, INC.
KY
Coalgood
8485536
HARLAN RECLAMATION SERVICES LLC
KY
Martin County
8800215
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805147
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8805180
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8807001
MARTIN COUNTY COAL CORPORATION
KY
Martin County
8808010
MARTIN COUNTY COAL CORPORATION
KY
Rawl
8984439
NEW RIDGE MINING COMPANY
KY
Roxana
8675268
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675278
ENTERPRISE MINING COMPANY, LLC
KY
Roxana
8675283
ENTERPRISE MINING COMPANY, LLC
KY
Sidney
4985319
ISLAND CREEK COAL COMPANY
KY
Sidney
6985333
ISLAND CREEK COAL COMPANY
KY
Sidney
8980639
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980914
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980915
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8980947
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984223
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984418
SIDNEY COAL COMPANY, INC.
KY
Sidney
8984432
ROAD FORK DEVELOPMENT COMPANY,
KY
Sidney
8984437
LONG FORK COAL COMPANY
KY
Sidney
8985579
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985646
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985647
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985649
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985735
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985745
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985746
SIDNEY COAL COMPANY, INC.
KY
Sidney
8985751
SIDNEY COAL COMPANY, INC.
KY
Sidney
8989160
NEW RIDGE MINING COMPANY
KY
Twin Star
1101960
TWIN STAR MINING, INC.
VA
Twin Star
1101961
TWIN STAR MINING, INC.
VA
Twin Star
1101966
TWIN STAR MINING, INC.
VA
Twin Star
1101967
TWIN STAR MINING, INC.
VA
Twin Star
1101968
TWIN STAR MINING, INC.
VA
Twin Star
1101981
TWIN STAR MINING, INC.
VA
Twin Star
1201969
TWIN STAR MINING, INC.
VA

11


COMPLEX
PERMIT NUMBER
PERMITTEE
STATE
Twin Star
1201970
TWIN STAR MINING, INC.
VA
Twin Star
1201973
TWIN STAR MINING, INC.
VA
Twin Star
1301956
TWIN STAR MINING, INC.
VA
Twin Star
1301962
TWIN STAR MINING, INC.
VA
Twin Star
1801971
TWIN STAR MINING, INC.
VA
TCC
2475
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2904
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2885
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2664
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2957
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2982
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2725
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2710
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2882297
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82144
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2282293
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82201
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82077
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2883130
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
2283116
TENNESSEE CONSOLIDATED COAL CO.
TN
TCC
82191
TENNESSEE CONSOLIDATED COAL CO.
TN


12


Exhibit 3
[Self-Bond Corporate Guarantee]







SELF-BOND CORPORATE GUARANTEE
WITNESSETH
SB-4    Revised 3/98
Self-Bond No. DMR2010-01-01
WHEREAS ,   Alpha Natural Resources, Inc   (hereinafter referred to as Guarantor) owns or controls   Alpha Natural Resources, Inc.   (hereinafter referred to as Operator
WHEREAS , Guarantor satisfies the financial requirements and criteria set by the Code of West Virginia, Chapter 22, Article 3, and the rules and regulations promulgated thereunder;
WHEREAS , Operator has requested and desires to place with the State of West Virginia Department of Environmental Protection (hereinafter referred to as WVDEP) its self-bond to secure reclamation obligations;
WHEREAS , Guarantor desires to guarantee the funds pledged under Operator’s self-bond;
WHEREAS , Guarantor has the fall authority under the laws of the State of Delaware, under which it is incorporated, its articles of incorporation and by-laws to enter into this guarantee;
WHEREAS , Guarantor has full approval from its Board of Directors to enter into this guarantee;
WHEREAS , it is in the best interests of Guarantor, in the legitimate furtherance of its purposes and business, to enter into this guarantee;
WHEREAS , the Director of the WVDEP, pursuant to Chapter 22, Article 3, and the rules and regulations promulgated thereunder, has the legal authority to administer the bonding requirements for mine operations in the State of West Virginia.
I.
NOW , for value received, and in consideration of the approval and execution of Self-Bond No.     DMR2010-01-01     , Guarantor, a corporation created and existing under the laws of the State of West Virginia, their successors and assigns, jointly and severally, do hereby covenant, guarantee, promise and agree to make prompt payment upon demand of the full amount, or portions thereof, of the self-bond of Operator, on the terms and conditions described herein, said payment of monies to be used for the reclamation of all lands affected under permits in accordance with the provisions and requirements of the rules and regulations and any amendments thereto, with applicable federal laws and regulations, and the Self-Bond” No. DMR2010-01-01 terms and conditions of the permits. This guarantee covers any and all demands, liabilities, charges, and expenses of whatsoever kind or nature, which WVDEP may at any time sustain or incur by reason of or in consequence of having accepted the self-bond of Operator, including all litigation costs and all administrative costs reasonably incurred by WVDEP in any successful effort




to enforce obligations and requirements of the Operator with respect to the operation or activity that is bonded.
II.
This Corporate Guarantee is a continuing guarantee and is to be in full force and effect until all of the terms of Operator’s self-bond have been satisfactorily performed or otherwise discharged to the satisfaction of WVDEP.
III.
Guarantor hereby fully consents to the following, any of which shall not affect nor change or discharge the obligations of this guarantee:
A.
Any renewals, revisions, modifications to the terms of the self-bond, including increases or decreases in the dollar amount of the bond, or the lands to which it applies, in accordance with the requirements of Chapter 22, Article 3, and the rules and regulations promulgated thereunder.
B.
Any extension of time for performance of the whole or any part of the conditions of the self-bond.
C.
Any changes, revisions, modifications or renewals to the terms of the permits, including the mining and reclamation plans contained therein.
IV.
Guarantor expressly waives the following:
A.
Notice of the acceptance of this Corporate Guarantee by WVDEP.
B.
Notice of renewals, revisions, modifications to the self-bond.
C.
Notice of changes, revisions, modifications or renewals of the terms of the permits of the Operator.
D.
Notice of any extensions of time for performance of the whole or any part of the condition of the self-bond.
Self-Bond No.    DMR2010-0l-01  
E.
Notice of bond forfeiture proceedings, notice of any demand for payment of self-bond; or any dishonor thereof.
F.
All other notices to which Guarantor might otherwise be entitled in connection with this Corporate Guarantee or the obligation hereby guaranteed.
G.
The institution of any civil actions or the exhaustion of legal remedies against the Operator as a condition to enforcement of this Corporate Guarantee .
H.
It is understood that any notice provided by the United States of America to the Guarantor shall not constitute a release or modification of the above waivers.
V.
This Corporate Guarantee is subject to the following conditions, to-wit:

2


A.
Any demand for funds shall be accompanied by a signed statement that the WVDEP has forfeited, in whole or in part, the self-bond, and one copy of the order of forfeiture is attached.
B.
This Corporate Guarantee shall be limited in amount as follows:
(1)
Reclamation costs: the indebtedness reflected by the approved self­ bond existing at the time of bond forfeiture by WVDEP.
(2)
Litigation and administrative costs: the actual amount of such costs reasonably incurred in any successful effort to enforce requirements and obligations of the Operator and/or the obligations of the Guarantor under this agreement. Litigation and administrative costs shall not be limited by the indebtedness reflected by the approved self-bond.
C.
If the Operator fails to complete the reclamation as required by Chapter 22, Article 3 and any amendments thereto, and the terms and conditions of the permit, the Guarantor shall be required to complete the approved reclamation plan for the lands in default or to pay to WVDEP the amount in full necessary to complete the approved reclamation plan, not to exceed the bond amount, within ·ten (10) business days after receipt of WVDEP
Self-Bond No.    DMR2010-01-01  
demand for payment. Guarantor hereby agrees that demands for payment may be based and are payable on projections of costs or their actual accrual and that liability for payment shall not be contingent on the costs having been presently sustained. If permitted under State Law, the Indemnity Agreement when under forfeiture shall operate as a judgment against those parties liable under the Indemnity Agreement.
D.
This Corporate Guarantee may be canceled only upon notice of said cancellation being sent to the Operator and WVDEP at least ninety (90) days in advance of the proposed cancellation date and then only upon acceptance of the cancellation by WVDEP. The cancellation shall be accepted by WVDEP if the Operator obtains a suitable replacement bond before the proposed cancellation date or if the lands for which the self­bond, or portion thereof, was accepted have not and will not be disturbed under the terms of the permit, or the self-bond has been released in accordance with the provisions of Chapter 22, Article 3 and the rules and regulations promulgated thereunder.
VI.
This Corporate Guarantee shall be and continue effective notwithstanding any present or future legal disability of the Operator.
VII.
There are no conditions or limitations to this Corporate Guarantee except those contained herein at the date hereof, and thereafter no alteration, change or modification hereof shall be binding or effective unless executed in writing, signed by the guarantor, and approved by WVDEP.

3


VIII.
Guarantor agrees to pay all costs and expenses incurred by WVDEP which are expended in any successful action instituted to enforce the terms of this guarantee.
IX.
This guarantee shall be good and effective notwithstanding any change or changes in the business name of the operator.
X.
No changes, revisions, modifications or renewals to the self-bond of the Operator or the terms of permits shall act as a release of the Guarantor from this Corporate Guarantee.
Self-Bond No.  DMR2010-01-01
XI.
All notices required to, or which may be given shall be effective when received by the addressees at the addresses specified below. Personal delivery shall have the same effect as notice given by mail. Notices given by mail shall be sent certified.
GUARANTOR
Name
Address
LEGAL DEPARTMENT
ALPHA NATURAL RESOURCES, INC.
 
201 RESTING TREE DRIVE, PO BOX 16429
 
BRISTOL, VA 24209
 
 

FOR GUARANTOR:
Name
Address
LEGAL DEPARTMENT
ALPHA NATURAL RESOURCES, INC.
 
201 RESTING TREE DRIVE, PO BOX 16429
 
BRISTOL, VA 24209
 
 

XII.
In case of the insolvency, bankruptcy or dissolution of the Operator, all funds represented by the self-bond shall immediately become due and payable and this Corporate Guarantee may thereupon be enforced.
XIII.
This Corporate Guarantee is one of payment and not of collection.
XIV.
The failure of any person or persons to sign this Corporate Guarantee shall not release or affect the liability of Guarantor.

4


XV.
This Corporate Guarantee is a binding contract and shall be construed under and subject to the laws of the United States of America.

5



Self-Bond No.  DMR2010-01-01
XVI.
SIGNATURES OF GUARANTOR:
Guarantor Name    ALPHA NATURAL RESOURCES , INC.                             
By:
 /s/ Virginia Graves
 
By:
 /s/ Frank Wood
 
Name: Virginia Graves
 
 
Name: Frank Wood

Title:
 
 
Title:
 
 
Executive VP, General Counsel and Secretary
 
 
Executive VP and Chief Financial Officer


State of        VIRGINIA              

County of        WASHINGTON         


By:
 
 
Name:

By:
 
 
Name:

Title:
 
 
Executive VP and Chief Financial Officer

This foregoing instrument was acknowledged by me,   /s/ Vaughn R. Groves and Frank J. Wood    this   13 th   day of    December        , 2012
Witness my hand and official seal
/s/ Teresa J. Darnell
 
Notary Public
My Commission Expires    03-31-13                 
[NOTARY SEAL
TERESA J. DARNELL
Notary Public
Commonwealth of Virginia
173874
My Commission Expires Mar 31, 2013]


6



XVII.
CORPORATE ACKNOWLEDGEMENTS
Attached and incorporated herein as Exhibit A.


REVIEW BY WV ATTORNEY GENERAL
APPROVED as to form and execution:
APPROVED :   /s/  Darrell V. McGraw, Jr., Attorney General  


By:
 /s/ Dawn E. Warfield
 
Date:
12/17/2012
 
Authorized Representative
 
 
 



7


Exhibit 4
[Security Agreement]
This SECURITY AGREEMENT , dated as of July [ ], 2016 (this “ Agreement ”), is made by ANR, Inc. and its direct and indirect subsidiaries listed on the signature pages hereof (collectively, the “ Grantors ”), each with an address at One Alpha Place, Bristol, Virginia 24209, in favor of WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION (the “ Secured Party ”), with an address at 601 57th Street SE, Charleston, West Virginia 25304.
RECITALS
Pursuant to that certain Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia (the “ Settlement Agreement ”) dated as of July [ ], 2016 by and among Alpha Natural Resources, Inc. (“ Alpha ”), Contura Energy, Inc. (the “ Purchaser ”), and Secured Party, Alpha agreed, among other things, that the Grantors would enter into this Agreement to grant to the Secured Party a security interest in their right, title and interest in and to the Collateral (defined below).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the Grantors hereby agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
1.1     General Definitions. In this Agreement, the following terms shall have the following meanings:
“ Collateral ” shall have the meaning assigned in Section 2.1. “Collateral Records” shall mean books, records, ledger cards, files, correspondence, customer lists, supplier lists, blueprints, technical specifications, manuals, computer software and related documentation, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at an time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.
“ Control ” shall mean: (a) with respect to any Deposit Accounts, control within the meaning of Section 9-104 of the UCC, (b) with respect to any Securities Accounts, Security Entitlements, Commodity Contract or Commodity Account, control within the meaning of Section 9-106 of the UCC, (c) with respect to any Uncertificated Securities, control within the meaning of Section 8-106(c) of the UCC, (d) with respect to any Certificated Security, control within the meaning of Section 8-106(a) or (b) of the UCC, (e) with respect to any Electronic Chattel Paper, control within the meaning of Section 9-105 of the UCC, (f) with respect to any “transferable record”(as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction), control within the meaning of Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the




Uniform Electronic Transactions Act as in effect in the jurisdiction relevant to such transferable record.
“ Event of Default ” shall have the meaning set forth in the Settlement Agreement.
“ Insolvency or Liquidation Proceeding ” shall mean (a) any voluntary or involuntary case or proceeding under any Bankruptcy Law with respect to any Grantor; (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to a material portion of their respective assets; (c) any liquidation, dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or (d) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Grantor.
“ Intercreditor Agreement ” means any intercreditor or subordination agreement executed by Secured Party and any lender or other creditor (or agent for one or more lenders or creditors) of any Grantor, pursuant to which the security interests granted in the Collateral to Secured Party hereunder are subordinated in favor of security interests granted in the Collateral in favor of such lender(s) or other creditor(s).
“ Permitted Exclusions ” shall mean (a) liens for taxes, assessments or other governmental charges or levies not yet delinquent or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, any Grantor or any subsidiary thereof (each a “Subsidiary”) shall have set aside on its books adequate reserves in accordance with generally accepted accounting principles from time to time in effect in the United States of America (“GAAP”); (b) landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like liens arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, any Grantor or any Subsidiary shall have set aside on its books adequate reserves in accordance with GAAP; (c) zoning restrictions, easements, trackage rights, leases, licenses, special assessments, rights-of- way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of any Grantor or any Subsidiary; (d) liens granted by any Grantor and/or its Subsidiaries under or in connection with any Permitted Financing; (e) liens granted by any Grantor and/or its Subsidiaries under or in connection with any State Settlement; and (f) local, county, state and federal laws, ordinances or governmental regulations including environmental laws and regulations, local building and fire codes, and zoning conservation or other land use regulations now or hereafter in effect relating to any property owned, leased or licensed by any Grantor and/or its Subsidiaries.
“ Permitted Financing ” shall mean (a) the exit letter of credit facility entered into by the Grantors pursuant to the Plan (as defined in the Settlement Agreement) and (b) any other financing arrangement entered into by the Grantors and/or its Subsidiaries with the prior written consent of the Secured Party.

2


“ Reclamation Funding Agreement ” shall mean the Reclamation Funding Agreement dated July , 2016 by and among Alpha, Secured Party, the Purchaser and various federal and state regulatory agencies parties thereto.
“ Restricted Cash Accounts ” shall have the meaning set forth in the Settlement Agreement.
“ Secured Obligations ” shall have the meaning set forth in Section 2.2 hereof.
State Settlements ” shall mean any settlements, as approved by the Bankruptcy Court in connection with confirmation of the Plan, among the Grantors, the Purchaser and any state or federal environmental regulatory agencies related to ongoing regulatory compliance obligations.
“ UCC ” shall mean the Uniform Commercial Code as in effect from time to time in the State of West Virginia; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of West Virginia, the term “ UCC ” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies. All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC.
1.2     Definitions; Interpretation .
(a)    In this Agreement, the following capitalized terms shall have the meaning given to them in the UCC (and, if defined in more than one Article of the UCC, shall have the meaning given in Article 9 thereof): Account, Account Debtor, As-Extracted Collateral, Bank, Certificated Security, Chattel Paper, Commodity Account, Commodity Contract, Deposit Account, Document, Electronic Chattel Paper, Fixtures, General Intangibles, Goods, Instrument, Inventory, investment property, Letter of Credit Right, Money, Payment Intangible, Proceeds, Record, Securities Account, Securities Intermediary, Security Certificate, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.
(b)    All other capitalized terms used herein (including the preamble and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Settlement Agreement. The incorporation by reference of terms defined in the Settlement Agreement shall survive any termination of the Settlement Agreement.
(c)    Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used

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with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable. Unless the context requires otherwise, any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement or other document as from time to time amended, supplemented or otherwise modified (subject to restrictions on such amendments, supplements or modifications set forth in the Settlement Agreement). If any conflict or inconsistency exists between this Agreement and the Settlement Agreement, the Settlement Agreement shall govern.
SECTION 2. GRANT OF SECURITY.
2.1     Grant of Security . Subject to the Permitted Exclusions, each Grantor hereby grants to Secured Party a security interest in and continuing lien on all of such Grantor’s right, title and interest in, to and under the following property of such Grantor, in each case whether now owned or existing or hereafter acquired, created or arising and wherever located (all of which being hereinafter collectively referred to as the “ Collateral ”):
(a)    funds in the Restricted Cash Accounts;
(b)    As-Extracted Collateral and Inventory located at mines operated by any of the Grantors in the State of West Virginia;
(c)    the Reclamation Funding Agreement, including, without limitation, any right to receive any payment(s) thereunder;
(d)    to the extent not otherwise included above, all Collateral Records and Supporting Obligations in each case relating to any of the foregoing; and
(e)    to the extent not otherwise included above, all Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing.
2.2     Security for Obligations . This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all of the Grantors’ obligations under this Security Agreement, the Reclamation Funding Agreement and the Settlement Agreement, now or hereafter existing, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, fees, premiums, penalties, indemnifications, contract causes of action, costs, expenses or otherwise (all such obligations, the “ Secured Obligations ”).
2.3     Continuing Liability Under Collateral . Notwithstanding anything herein to the contrary, (i) the Grantors shall remain liable for all obligations with respect to the Collateral and nothing contained herein is intended or shall be a delegation of duties to Secured Party, and (ii) the exercise by the Secured Party of any of its rights hereunder shall not release the Grantors from any of their duties or obligations under the contracts and agreements included in the Collateral.

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SECTION 3. REPRESENTATIONS AND WARRANTIES.
Each Grantor hereby represents and warrants that:
3.1     Grantor Information & Status . As of the Effective Date, Schedule 3.1 sets forth under the appropriate headings: (1) the full legal name of such Grantor, (2) the type of organization of such Grantor, (3) the jurisdiction of organization of such Grantor, (4) its organizational identification number, if any, and (5) the jurisdiction and complete address where the chief executive office or its sole place of business is located;
3.2     Collateral Identification . All information supplied by such Grantor with respect to any of the Collateral (in each case taken as a whole with respect to any particular Collateral) is accurate and complete in all material respects.
3.3     Ownership of Collateral and Absence of Other Liens . Other than with respect to the Permitted Exclusions and any financing statements filed in favor of the Secured Party, no financing statement, fixture filing or other instrument similar in effect under any applicable law covering all or any part of the Collateral has been authorized by such Grantor to be filed in any filing or recording office, except for financing statements filed in connection with Liens set forth on Schedule 3.3 hereto.
3.4     Status of Security Interest .
(a)    Upon the filing of financing statements naming such Grantor as “debtor” and the Secured Party as “secured party” and describing the Collateral in the filing offices set forth opposite such Grantor’s name on Schedule 3.4 hereof (as such schedule may be amended or supplemented from time to time), the security interest of the Secured Party in all Collateral that can be perfected by the filing of a financing statement under the Uniform Commercial Code as in effect in any jurisdiction will constitute a valid and perfected Lien subject to any Permitted Exclusions with respect to Collateral. Each agreement purporting to give the Secured Party Control over any Collateral is effective to establish the Secured Party’s Control of the Collateral subject thereto;
(b)    Except for authorizations and approvals that have been received, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the grant by such Grantor of the security interest granted hereunder or (ii) the execution, delivery or performance of this Agreement by such Grantor; and
(c)    The granting of the security interests in the Collateral to the Secured Party hereunder does not violate any term, provision, or clause in any material lease, license, contract, property right or agreement to which such Grantor is a party.
SECTION 4. COVENANTS AND AGREEMENTS.
Each Grantor hereby covenants and agrees that:
4.1     Grantor Information & Status .

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(a)    Without limiting any prohibitions or restrictions on mergers or other transactions as set forth in the Settlement Agreement or the Reclamation Funding Agreement, it shall not change its name, corporate structure (e.g. by merger, consolidation, change in corporate form or otherwise), chief executive office, type of organization or jurisdiction of organization unless it shall have (a) notified the Secured Party in writing of any such change promptly (and in any event within 45 days after such change or such longer period as the Secured Party may reasonably agree), identifying such new proposed name, corporate structure, chief executive office, jurisdiction of organization and providing such other information in connection therewith as the Secured Party may reasonably request and (b) taken all actions necessary to maintain the continuous validity, perfection and the same or better priority of the Secured Party’s security interest in the Collateral granted or intended to be granted and agreed to hereby.
4.2     Ownership of Collateral and Absence of Other Liens .
(a)    Except for the security interest created by this Agreement and the Permitted Exclusions, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral (other than statutory liens that arise in the ordinary course of its business), and it shall, at the Secured Party’s reasonable request, use its commercially reasonable efforts to defend the Collateral against all persons at any time claiming any material interest therein, other than Liens permitted hereunder; and
(b)    Upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Secured Party in writing of any event that would reasonably be likely to have a material adverse effect on (i) the value of the Collateral, (ii) the ability of any such Grantor or the Secured Party to dispose of any material portion of the Collateral, or (iii) the rights and remedies of the Secured Party in relation thereto, including, without limitation, the levy of any legal process against any material portion of the Collateral.
SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES.
5.1     Further Assurances .
(a)    Each Grantor agrees that from time to time, at its reasonable expense, that it shall promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary, or that the Secured Party may reasonably request, in order to perfect and maintain the validity, effectiveness and priority of any security interest granted hereby or to enable the Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral.
(b)    Each Grantor hereby authorizes the Secured Party to file a Record or Records, including, without limitation, financing or continuation statements, and amendments to any of the foregoing, in any jurisdictions and with any filing offices as the Secured Party may determine, in its reasonably discretion, are reasonably necessary or advisable to perfect or otherwise protect the security interest granted to the Secured Party herein. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of Collateral that describes such property in any other manner as the

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Secured Party may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Secured Party.
SECTION 6. SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
6.1     Power of Attorney . Each Grantor hereby irrevocably appoints the Secured Party (such appointment being coupled with an interest) as Grantor’s attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor, the Secured Party or otherwise, from time to time in the Secured Party’s reasonable discretion to take any action and to execute any instrument that the Secured Party may deem reasonably necessary or advisable to accomplish the purposes of this Agreement, in each case, only at such time or times during which an Event of Default has occurred and is continuing, including, without limitation, the following:
(a)    upon the occurrence and during the continuance of any Event of Default, to ask for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral;
(b)    upon the occurrence and during the continuance of any Event of Default, to receive, endorse and collect any drafts or other instruments, documents and chattel paper in connection with clause (a) above;
(c)    upon the occurrence and during the continuance of any Event of Default, to file any claims or take any action or institute any proceedings that the Secured Party may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of the Secured Party with respect to any of the Collateral; and
(d)    to prepare and file any UCC financing statements against such Grantor as debtor.
6.2     No Duty on the Part of Secured Party . The powers conferred on the Secured Party under Section 6.1 are solely to protect the interests of Secured Party in the Collateral and shall not impose any duty upon the Secured Party to exercise any such powers.
SECTION 7. REMEDIES.
7.1     Generally .
(a)    If any Event of Default shall have occurred and be continuing, the Secured Party may exercise in respect of the Collateral, in addition to all other rights and remedies provided for in the Settlement Agreement, the Reclamation Funding Agreement, and any document relating thereto, herein or otherwise available to it at law or in equity, subject to the terms of any Intercreditor Agreement, all the rights and remedies of the Secured Party on default under the UCC to collect, enforce or satisfy any Secured Obligations then owing, whether by acceleration or otherwise, and also may pursue any of the following separately, successively or simultaneously:
(i)    deliver a “notice of termination” or “notice of exclusive control” to the depositary institution at which each of the Restricted Cash Accounts is maintained and

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which is subject to a deposit account control agreement among one or more of the Grantors, the Secured Party and such depositary institutions;
(ii)    require Grantors to, and each Grantor hereby agrees that it shall at its expense and promptly upon request of the Secured Party as soon as reasonably practicable, assemble all or part of the Collateral as directed by the Secured Party and make it available to the Secured Party at a place to be designated by the Secured Party that is reasonably convenient to both parties;
(iii)    enter onto the property where any Collateral is located and take possession thereof with or without judicial process;
(iv)    prior to the disposition of the Collateral, store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent the Secured Party deems reasonably appropriate; and
(v)    without notice except as specified below or under the UCC, sell, assign, lease, license (on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Secured Party’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable.
(b)    For the avoidance of doubt, the occurrence of an “Event of Default” as such term is defined in the Settlement Agreement shall permit the Secured Party to exercise all rights, powers, and remedies vested in it.
(c)    The Secured Party may be the purchaser of any or all of the Collateral at any public or private (to the extent to the portion of the Collateral being privately sold is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations) sale in accordance with the UCC and the Secured Party shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale made in accordance with the UCC, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Secured Party at such sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of the Grantors, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Secured Party shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. If the proceeds of any sale or disposition of the Collateral are insufficient to pay all the Secured Obligations, the Grantor shall be liable for the deficiency and the fees of any attorneys employed by the Secured Party to

8


collect such deficiency. Each Grantor agrees that it would not be commercially unreasonable for the Secured Party to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. Each Grantor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Secured Party, that the Secured Party has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against Grantor, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no default has occurred giving rise to the Secured Obligations becoming due and payable prior to their stated maturities. Nothing in this Section shall in any way limit the rights of the Secured Party hereunder.
(d)    The Secured Party may sell the Collateral without giving any warranties as to the Collateral. The Secured Party may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.
(e)    The Secured Party shall have no obligation to marshal any of the Collateral.
7.2     Application of Proceeds . Except as expressly provided elsewhere in this Agreement, all proceeds received by the Secured Party in respect of any sale, any collection from, or other realization upon all or any part of the Collateral shall be applied in full or in part by the Secured Party against, the Secured Obligations in the following order of priority:
FIRST , to the payment of all costs and expenses of such sale, collection or other realization, including reasonable compensation to the Secured Party and its agents and counsel, and all other expenses, liabilities and advances made or incurred by the Secured Party in connection therewith, and all amounts for which the Secured Party is entitled to indemnification hereunder and all advances made by the Secured Party hereunder for the account of the Grantors, and to the payment of all costs and expenses paid or incurred by the Secured Party in connection with the exercise of any right or remedy hereunder or under the Settlement Agreement, all in accordance with the terms hereof or thereof;
SECOND , to the payment of, to the extent such expenses are reimbursable in accordance with the terms of the relevant agreements, all reasonable out-of-pocket expenses (including legal fees) incurred by the Secured Party in connection with the enforcement and protection of its rights under this Agreement, the Settlement Agreement or the Reclamation Funding Agreement or otherwise by reason of the occurrence of an Event of Default thereunder, in each case, with interest at the rates specified in any applicable agreement, order, statute or rule in respect of overdue payments;

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THIRD, to the payment or performance of all other Secured Obligations due and payable to the Secured Party; and
LAST, the balance, if any, after all of the Secured Obligations have been paid in full in cash, to the Grantors or as otherwise required by applicable law.
SECTION 8. STANDARD OF CARE; SECURED PARTY MAY PERFORM.
The powers conferred on the Secured Party hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Secured Party shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. The Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Secured Party accords its own property. Neither the Secured Party nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Grantors or otherwise. If any Grantor fails to perform any agreement contained herein, the Secured Party may itself perform, or cause performance of, such agreement, and the reasonable out of pocket expenses of the Secured Party incurred in connection therewith shall be payable by the Grantors.
SECTION 9. REINSTATEMENT.
This Agreement shall remain in full force and effect and continue to be effective should any Insolvency or Liquidation Proceeding be commenced by or against any or all of the Grantors, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
SECTION 10. MISCELLANEOUS
10.1     Notices . Unless otherwise specifically provided herein, all notices, consents, requests, demands and other communications required or permitted hereunder:
(a)    shall be in writing
(b)    shall be sent by messenger, certified or registered U.S. mail, a reliable express delivery service, facsimile or email (with a copy sent by one of the foregoing means), charges prepaid as applicable, to the appropriate address(es) or number(s) set forth below; and

10


(c)    shall be deemed to have been given on the date of receipt by the addressee (or, if the date of receipt is not a Business Day, on the first Business Day after the date of receipt), as evidenced by (i) a receipt executed by the addressee (or a responsible person in his or her office) or a notice to the effect that such addressee refused to accept such communication, if sent by messenger, U.S. mail or express delivery service, or (ii) a receipt generated by the sender’s facsimile or email system showing that such communication was sent to the appropriate number or email address on a specified date, if sent by facsimile or email.
All such communications shall be sent to the following addresses or numbers, or to such other addresses or numbers as any party may inform the others by giving five Business Days prior notice:
If to the Grantors:
ANR, Inc.
One Alpha Place
Bristol, Virginia 24209
Attn: General Counsel
Facsimile No.:
Email:
If to the Secured Party:
West Virginia Department of Environmental Protection
601 57th Street, Southeast
Charleston, West Virginia 25304
Attention: General Counsel
Facsimile No.: (304) 926-0446
Email: Kristin.A.Boggs@wv.gov
10.2    No failure or delay on the part of the Secured Party in the exercise of any power, right or privilege hereunder or under the Settlement Agreement, the Reclamation Funding Agreement, or any document relating thereto shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege.
10.3    All rights and remedies existing under this Agreement, the Settlement Agreement, the Reclamation Funding Agreement, and any document relating thereto are cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.4    If any provision of this Agreement, the Settlement Agreement, the Reclamation Funding Agreement, or any document relating thereto is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement, the Settlement Agreement, the Reclamation Funding Agreement, and any document relating thereto shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid

11


provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
10.5    All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
10.6    This Agreement shall be binding upon and inure to the benefit of the Secured Party and the Grantors and their respective successors and assigns.
10.7    The Grantors shall not, without the prior written consent of the Secured Party, assign any right, duty or obligation hereunder.
10.8    This Agreement may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.
10.9    This Agreement may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or electronic submission of a .pdf copy of an executed counterpart shall be effective as delivery of an original executed counterpart of this Agreement.
10.10     GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF WEST VIRGINIA, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
10.11     CONSENT TO JURISDICTION AND VENUE . THE PARTIES HERETO AGREE THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE COMMENCED IN THE STATE OR FEDERAL COURTS LOCATED IN KANAWHA COUNTY, WEST VIRGINIA, AND EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF SUCH COURTS FOR SUCH PURPOSE.
10.12     WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AFTER HAVING AN ADEQUATE OPPORTUNITY FOR CONSULTATION WITH ITS OWN INDEPENDENT COUNSEL, WAIVES (A) ITS/HIS/HER RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR OBLIGATIONS ARISING OUT OF OR RELATED TO (i) THIS AGREEMENT, (ii) THE TRANSACTIONS CONTEMPLATED HEREBY, OR (iii) ANY COURSE OF DEALING,

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COURSE OF CONDUCT, STATEMENT (VERBAL OR WRITTEN) OR ACTION OF THE PARTIES IN CONNECTION WITH THE RELATIONSHIP BETWEEN THE PARTIES HERETO AND (B) ITS/HIS/HER RIGHT TO SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED.

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10.13     Relationship to Intercreditor Agreement . Notwithstanding anything herein or in the Settlement Agreement to the contrary, the lien and security interest granted in the Collateral pursuant to this Agreement and the exercise of any right or remedy by the Secured Party hereunder are subject to the terms and provisions of any Intercreditor Agreement. In the event of any conflict between the terms of any Intercreditor Agreement, on one hand, and this Agreement or the Settlement Agreement, on the other hand, the terms of such Intercreditor Agreement shall govern and control. Any provision of this Agreement or Settlement Agreement to the contrary notwithstanding, no Grantor shall be required to act or refrain from acting in a manner that is inconsistent with the terms and provisions of such Intercreditor Agreement.
[Signatures to Follow]




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IN WITNESS WHEREOF, the Grantors and the Secured Party have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

ANR, Inc.
as Grantor
By:
 
 
Name:
 
Title:

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION,
as Secured Party
By:
 
 
Name: Kristin A. Boggs
 
Title: General Counsel

[OTHER GRANTORS]
By:
 
 
Name:
 
Title:






Schedule 3.1
Grantor Information
Legal name: [ANR, Inc.]
Type of organization: Corporation
Whether or not the Pledgor is a Registered Organization: Yes
Jurisdiction of organization: Delaware
Location: One Alpha Plaza, Bristol, VA 24209
Organizational identification number (if any):                 
Federal Employer Identification Number (if any):            
[SAME RE OTHER GRANTORS]
 





Schedule 3.3
Other Financing Statements
Debtor
Secured Party
Jurisdiction
Original Filing Date
Original Filing Number
 
 
 
 
 
 
 
 
 
 








Schedule 3.4
Recording Offices

Name of Grantor
Filing Jurisdiction
[ANR, Inc.]
[ Raleigh County ]
, West Virginia
[SAME RE OTHER GRANTORS]
West Virginia Secretary of State






Exhibit 5
[Consent Order]







DEPA02.JPG
Division of Mining and Reclamation
601 57th Street, Southeast
Charleston, West Virginia 25304
Phone: (304) 926-0440
Fax: (304) 926-0446
Earl Ray Tomblin, Governor
Randy C. Huffman, Cabinet Secretary
www.dep.wv.gov

CONSENT ORDER
The following findings are made and this Consent Order is issued pursuant to the authority vested in the Secretary of the Department of Environmental Protection (the “ Department ”) pursuant to W. Va. Code § 22-1-6(d)(3) and delegated to the Director of the Division of Mining and Reclamation (the “ Director ”) pursuant to W. Va. Code § 22-1-6(b).
FINDINGS OF FACT
In support of this Consent Order, the Director makes the following Findings of Fact:
A.
Under the West Virginia Surface Coal Mining and Reclamation Act, W. Va. Code § 22-3-1, et seq. (the “ Act ”), no person may engage in surface mining operations unless such person has first obtained a permit from the Director. W. Va. Code § 22-3-8(a).
B.
In accordance with the Act, after the Director approves a surface mining permit, but before he or she issues such permit, the operator must furnish a penal bond, payable to the State of West Virginia, which bond secures the operator’s obligations to comply with the requirements of the Act and the operator’s surface mining permit(s). W. Va. Code § 22-3-11(a).
C.
The Act prescribes various forms of penal bonds with various requirements for their acceptance by the Director, including, without limitation:
1.
Surety bonds in accordance with the West Virginia Surface Mining Reclamation Rule (the “ Rule ”), W. Va. Code R. § 38-2-11.3.a (“ Surety Bonds ”);
2.
Various forms of cash bonds in accordance with W. Va. Code R. § 38-2-11.3.b.1.A. - 11.3.b.1.D. (“ Cash Bonds ”);
3.
Collateral bonds on real property in accordance with W. Va. Code R. § 38-2-11.3.b.1.E. (“ Collateral Bonds ”);
4.
Letters of credit in accordance with W. Va. Code R. § 38-2-11.3.b.1.G. (“ Letters of Credit ”); and


SUBJECT TO REVIEW AND APPROVAL
BY PERSONS WITH AUTHORITY

5.
Escrow bonds in accordance with W. Va. Code R. § 38-2-11.3.c. (“ Escrow Bonds ”).
The various forms of penal bonds described in W. Va. Code R. § 38-2-11.3., other than self-bonds as described in W. Va. Code R. § 38-2-11.3.d. (“ Self-Bonds ”), are hereinafter referred to as “ Penal Bonds ”.
D.
The Act authorizes the Director to accept a Self-Bond, if the applicant demonstrates to the satisfaction of the Director, among other things, a history of financial solvency and continuous operation sufficient for authorization to self-insure. W. Va. Code § 22-3-11(d).
E.
The Alpha Natural Resources, Inc. (“ ANR ”) subsidiaries listed in Exhibit 1 (collectively, the “ ANR Subsidiaries ” and, collectively with ANR, “ Alpha ”) attached hereto and incorporated by reference herein currently hold mining permits (collectively, the “ Permits ”) issued by the Director for coal mines and related facilities in West Virginia that are covered, in part, by Self-Bonds. To ensure that the ANR Subsidiaries qualified for the issuance of Self-Bonds, ANR guaranteed the payment and performance of the Self-Bonds issued by the ANR Subsidiaries pursuant to the Self-Bond Corporate Guarantee dated December 13, 2012 (the “ Guarantee ”), a copy of which is attached hereto as Exhibit 2.
F.
On August 3, 2015, ANR and certain of its direct and indirect subsidiaries (collectively, the “ Debtors ”), including all of the ANR Subsidiaries, commenced cases under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”), which cases are being jointly administered under case number 15-33896 (KRH) (the “ Chapter 11 Cases ”).
G.
On the date of the commencement of the Chapter 11 Cases, the ANR Subsidiaries held Self-Bonds in the approximate amount of $244 million.
H.
Exhibit 1 hereto also identifies and sets forth the amount of Alpha’s current Self-Bonds (collectively, the “ Alpha Self-Bonds ”) by permit and further categorizes such permits as follows:
1.
By permits upon which coal is currently being mined and expected to be mined in the future (“ Active Permits ”);
2.
By permits upon which coal is not currently being mined due to market considerations but may be mined in the future (“ Inactive Permits ”);
3.
By permits upon which only reclamation activities are continuing (“ Reclaim-Only Permits ”); and
4.
By permits upon which permitted mining has not been started but may be started in the future (“ Not Started Permits ”).

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I.
By a letter dated August 5, 2015, ANR advised the Director that it may no longer satisfy one or more of the criteria for self-bonding under the Act and the Rule.
J.
By a letter dated September 1, 2015, the Director advised Alpha that, within 90 days, Alpha must post an alternate form of bond in total amount equal to the aggregate amount of the Alpha Self-Bonds.
K.
On December 7, 2015, Alpha and the Director entered into a consent order providing for Alpha’s satisfaction of its statutory reclamation bonding requirements in the State of West Virginia (the “ State ”) during the pendency of the Chapter 11 Cases (the “ Initial Consent Order ”). The Initial Consent Order contemplated that the Alpha Self-Bonds would be replaced with other acceptable alternative forms of bond upon emergence from chapter 11.
L.
During the continuing pendency of the Chapter 11 Cases, the Debtors and the Director entered into the Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia dated July ___, 2016 (the “ Settlement Agreement ”) that, among other things, resolved issues relating to the replacement of the Alpha Self-Bonds.
M.
Attached as Exhibit 3 to the Settlement Agreement is a form of security agreement (the “ Security Agreement ”) that, pursuant to the Settlement Agreement, the Debtors or the Reorganized Debtors are required to deliver to the Department on the Effective Date (as defined in the Plan) (hereinafter referred to as the “ Effective Date ”).
N.
By an order dated July ___, 2016, the Bankruptcy Court approved the Settlement Agreement and confirmed the Debtors’ joint plan of reorganization (the “ Plan ”), and, on the Effective Date, the Debtors will emerge from chapter 11. ANR and Alpha, as they shall exist following the Effective Date, are referred to herein as “ Reorganized ANR ” and “ Reorganized Alpha ,” respectively.
O.
Upon emergence, Reorganized Alpha shall retain certain coal mining assets, including certain assets in the State, that were not sold pursuant to the Sale Transaction (as defined in the Settlement Agreement) and will hold the permits associated with those assets.
P.
In accordance with the Settlement Agreement, this Consent Order embodies certain terms of the Settlement Agreement.
Q.
This Consent Order supersedes and replaces the Initial Consent Order in its entirety.
ORDER FOR COMPLIANCE
NOW, THEREFORE, in accordance with the authority cited above, it is hereby agreed by the parties and ORDERED by the Director:

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1.     Satisfaction of Reclamation Bonding Requirements . Alpha and Reorganized Alpha may satisfy their respective statutory reclamation bonding requirements as provided herein.
2.     Continuation of Existing Bonding .
a.    All of Alpha’s existing reclamation bonds, including all existing Penal Bonds and the remaining Alpha Self-Bonds, shall remain in place, pending the posting of replacement Penal Bonds in accordance with this Consent Order.
b.    Except to the extent replaced by Penal Bonds in accordance with the terms and provisions of this Consent Decree, Alpha, on behalf of itself and Reorganized Alpha, reaffirms all of their remaining Self-Bonds existing on the Effective Date and shall, as reasonably requested by the Director on and after the Effective Date, submit revised applications for any remaining Self-Bonds.
c.    ANR, on behalf of itself and Reorganized ANR, reaffirms the Guarantee, and the Reorganized Debtors shall, as reasonably requested by the Director, provide new guaranties, of all Self-Bonds remaining in existence on and after the Effective Date.
d.    The Plan provides that Alpha Natural Resources Holdings, Inc. and ANR, Inc. will be established pursuant to the Plan and shall replace Reorganized ANR as the holding companies for the equity interests of the Reorganized Debtors from and after the Effective Date. On and as of the Effective Date, ANR, Inc. shall, in connection with the Restructuring Transactions, assume the obligations of Reorganized ANR under the Guarantee, and both Alpha Natural Resources Holdings, Inc. and ANR, Inc. shall, on the Effective Date, execute guaranties, substantially in the form of the Guarantee, of all Self-Bonds remaining in existence on and after the Effective Date.
e.    All remaining Self-Bonds and guaranties shall be secured by: (1) the Pool Bond (as defined below); (2) the funds in the Restricted Cash Accounts (as defined in the Settlement Agreement); and (3) all other Collateral (as defined in the Security Agreement).
3.     Bonding of Active and Inactive Permits
a.     Active Permits . Reorganized Alpha shall have in place and posted with the Director Surety Bonds, Cash Bonds, or Letters of Credit with respect to all Active Permits within 30 days after the Effective Date.
b.     Inactive Permits . Within 180 days of the Effective Date, Reorganized Alpha shall have in place and posted with the Department Surety Bonds or other acceptable forms of Penal Bonds for all of Inactive Permits.
c.     Not Started Permits . All Not Started Permits shall be deemed to be Inactive Permits for purposes of this Consent Decree and shall be either (1) bonded with Surety Bonds or other acceptable forms of Penal Bonds within 30 days of the Effective

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Date or (2) deemed terminated and relinquished on and as of the 31st day after the Effective Date.
d.     Additional Cash Bond . In the event that Reorganized Alpha fails to bond all Active and Inactive Permits within the timeframes provided above and the Interim Contribution (as defined in the Settlement Agreement) is paid to the Director pursuant to the Settlement Agreement, the Director shall hold the Interim Contribution as a Cash Bond applicable to any or all Self-Bonds on any or all Active and Inactive Permits.
4.     Bonding of Reclaim-Only Sites .
a.    From and after the Effective Date, Reorganized Alpha may continue to maintain Self-Bonds only with respect to Reclaim-Only Permits.
b.    Reorganized Alpha shall reduce the Self-Bonded obligations existing with respect to Reclaim-Only Permits as of the Effective Date according to the following schedule:
i.    25% of the initial amount of the Self-Bonded obligations on such Reclaim-Only Permits by December 31, 2020;
ii.    50% of the initial amount of the Self-Bonded obligations on such Reclaim-Only Permits by December 31, 2023; and
iii.    100% of the initial amount of the Self-Bonded obligations on such Reclaim-Only Permits by the tenth anniversary of the Effective Date, by which time all remaining permits on the Reclaim-Only Permits shall be fully bonded with Penal Bonds in the amount determined in accordance with then-existing applicable State law and rules.
c.    The calculation of the required reduction in Self-Bonds shall not take into account any existing Penal Bonds or the amount of the Pool Bond (as defined below) until the aggregate amount of Self-Bonds is less than $39,000,000, and the Pool Bond has been converted to acceptable site-specific Penal Bonds.
d.    In the event that Reorganized Alpha decides to commence or recommence mining operations on any Reclaim-Only Permit, it may do so only upon posting and approval of Surety Bonds or other acceptable forms of Penal Bonds and compliance with all other applicable laws, rules and orders with respect to such Reclaim-Only Permit.
5.     Posting of the Pool Bond .
a.    On or before the Effective Date, Reorganized Alpha shall post an additional $24,000,000 in financial assurance in the form of a Cash Bond or Letter of Credit with the West Virginia State Treasurer’s Office for any and all sites located in the State that will be covered by a Self-Bond on and after the Effective Date.

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b.    The Cash Bond or Letter of Credit issued pursuant to Paragraph 5(a) hereof shall be in addition to the existing $15,000,000 Letter of Credit posted pursuant to the Initial Consent Order, which Letter of Credit shall remain in full force and effect or be substituted by a replacement Letter of Credit or Cash Bond on terms in accordance with applicable West Virginia law and acceptable to the Director, it being agreed that the terms of the existing Letter of Credit are acceptable. The existing Letter of Credit or the replacement thereof shall serve as additional financial assurance for any and all sites located in the State that will be covered by a Self-Bond on and after the Effective Date.
c.    The Cash Bond or Letter of Credit issued pursuant to Paragraph 5(a) hereof and the existing Letter of Credit and any replacement Letter of Credit or Cash Bond described in Paragraph 5(b) hereof are referred to herein as the “ Pool Bond .”
d.    Until Reorganized Alpha has replaced all Self-Bonds with Penal Bonds that satisfy applicable law, the Pool Bond will remain in place and may be drawn down and applied by the Director in whole or in part upon the revocation of any of the issued and outstanding Self-Bonded permits and declaration of forfeiture and demand for payment of the associated Self-Bond(s).
e.    The Pool Bond shall be returned by the Director to Reorganized Alpha when all Self-Bonded mining sites have been covered by acceptable Penal Bonds in accordance with West Virginia law or have been fully reclaimed as defined in W. Va. Code R. § 38-2-2.37, whichever comes first.
6.     Additional Cash Bond . In the event that the Director terminates Reorganized Alpha’s right to use funds in the Restricted Cash Accounts pursuant to Section 9(c)(ii) of the Settlement Agreement, the funds then contained in the Restricted Cash Accounts shall be deemed to constitute a Cash Bond with respect to Reorganized Alpha’s performance of their obligations to reclaim and manage and treat water at their Reclaim-Only Sites.
OTHER PROVISIONS
7.    Except as specifically set forth herein, nothing in this Consent Order shall in any way limit or impair the rights of the Director to enforce all applicable environmental and reclamation laws and regulations, and neither Reorganized Alpha nor the Director waives or releases any legal or factual argument, claim, doctrine or defense applicable to any dispute related thereto, including without limitation any argument, claim, doctrine or defense under applicable bankruptcy laws.
8.    Except as specifically provided above, compliance with the terms and conditions of this Consent Order shall not in any way be construed as relieving Reorganized Alpha of the obligation to comply with any applicable law, permit, order or any other requirement otherwise applicable. Violations of the terms and conditions of this Consent Order may subject Reorganized Alpha to additional penalties and injunctive relief in accordance with applicable law.

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9.    This Consent Order shall terminate only upon the termination of the Settlement Agreement pursuant to its terms. The termination of the Settlement Agreement or this Consent Order shall have no effect on the obligations of Reorganized Alpha under this Consent Order, or Reorganized Alpha’s obligations to comply with all applicable state and federal laws.
10.    Reorganized Alpha waives its right to appeal this Consent Order under W. Va. Code § 22-3-17(e). Reorganized Alpha agrees to take all actions required by the terms and conditions of this Consent Order. However, Reorganized Alpha does not admit to any factual or legal determinations made by the Director and reserves all rights and defenses available regarding liability or responsibility in any proceeding other than proceedings, administrative or civil, to enforce this Consent Order.
11.    Except as expressly set forth herein, the Director reserves the right to take further action if compliance with the terms and conditions of this Consent Order does not adequately address the violations, if any, noted herein or for any other matter and further reserves all rights and defenses that he may have pursuant to any legal authority, as well as the right to raise, as a basis for supporting such legal authority or defenses, facts other than those contained in the Findings of Fact herein.
12.    If any event occurs that delays Reorganized Alpha’s ability to comply with the requirements of this Consent Order, Reorganized Alpha shall have the burden of proving that such delay was caused by circumstances beyond its reasonable control and that could not have been overcome by due diligence (i.e., force majeure). Force majeure shall not include delays caused or contributed to by the lack of sufficient funding unless such lack of funding is due (a) limitations imposed on Reorganized Alpha by the Bankruptcy Code or order of the Bankruptcy Court or (b) to the actions of an entity not within the control of Reorganized Alpha. Within three working days after Reorganized Alpha becomes aware of such a delay, it shall notify the Director and, within ten working days of such initial notification, Reorganized Alpha shall submit (a) a detailed written explanation of the anticipated length and cause of the delay, (b) the means taken and/or to be taken to prevent or minimize the delay and (c) a timetable by which Reorganized Alpha intends to implement such measures. If the Director agrees that the delay has been or will be caused by circumstances beyond the reasonable control of Reorganized Alpha (i.e., force majeure), the time for performance hereunder shall be extended for a period of time equal to the delay resulting from such circumstances. A force majeure extension granted by the Director shall be considered a binding extension of the relevant requirements under this Consent Order. The Director’s determination shall be final and not subject to appeal.
13.    The provisions of this Consent Order are severable. In the event that a court or board of competent jurisdiction declares any provision hereof to be invalid or unenforceable, all other provisions of this Consent Order shall remain in full force and effect; provided that, if such declaration results from a challenge or proceeding brought by a third party then either the Director or Reorganized Alpha may choose to terminate this Consent Order in its entirety.
14.    This Consent Order is binding on Reorganized Alpha as of the Effective Date, regardless of either or both of the dates written below.

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Alpha Natural Resources, Inc., on behalf of itself, the ANR Subsidiaries, the Reorganized Debtors, Alpha Natural Resources Holdings, Inc., and ANR, Inc.

 
Department of Environmental Protection
By: DRAFT
 
 
By: DRAFT
 
 
 
 
 


Name and Title
ALPHA NATURAL RESOURCES, INC.
One Alpha Place
Bristol, Virginia 24209
 
Harold D. Ward, Acting Director  
DIVISION OF MINING AND RECLAMATION  
601 57th Street, Southeast  
24209 Charleston, West Virginia 25304
Date:
 
 
Date:
 
 
 
 
 





8
Exhibit 10.21

AMENDMENT TO
PERMITTING AND RECLAMATION PLAN SETTLEMENT
     AGREEMENT FOR THE STATE OF WEST VIRGINIA     
THIS AMENDMENT (this “ Amendment ”) to the Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia (as it may be amended or modified from time to time, the " Settlement Agreement ") is made and entered into as of July 25, 2016, by and among Alpha Natural Resources, Inc. (" ANR "), on behalf of itself and its debtor-affiliates (collectively with ANR, the " Debtors " or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the " Reorganized Debtors "), Contura Energy, Inc. (the " Purchaser ") and the West Virginia Department of Environmental Protection (the " Department " and, collectively with the Debtors and the Purchaser, the " Parties ").
WHEREAS, on July 12, 2016, the Parties entered into the Settlement Agreement;
WHEREAS, Exhibit 1 to the Settlement Agreement did not aggregate the amount of Self-Bonds at the Active and Inactive Sites as contemplated in the Settlement Agreement;
WHEREAS, the Debtors have updated Exhibit 1 to include aggregate amounts for all of their Self-Bonds;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Substitution of Exhibit 1. Exhibit 1 of the Settlement Agreement is hereby replaced in its entirety with Exhibit 1 hereto.
2. Authority and Validity . Each Party otherwise represents, warrants and acknowledges, as of the date hereof, that: (a) it has all the requisite authority to execute and deliver this Amendment; (b) such Party's execution and delivery of, and performance under, this Amendment have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Amendment or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Amendment has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Amendment; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Amendment does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
3. Execution in Counterpart. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Amendment may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.


IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date set forth above.
ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates


 
WEST VIRGINIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION


/s/ Mark M. Manno
 
/s/ Kristin A. Boggs
By: Mark M. Manno
Its: EVP, General Counsel, CPO & Secretary
 
By: Kristin A. Boggs
Its: General Counsel
 
 
 
CONTURA ENERGY, INC.


 
 
/s/ John DeGroote
 
 
By: John DeGroote
Its: President & Secretary
 
 

Exhibit 10.22
FINAL DRAFT – DATES TO BE ADDED IN EXECUTION VERSION

SECOND AMENDMENT TO
PERMITTING AND RECLAMATION PLAN SETTLEMENT
 AGREEMENT FOR THE STATE OF WEST VIRGINIA
THIS AMENDMENT (this "Second Amendment") is made and entered into as of October 23, 2017, by and among ANR, Inc., on behalf of itself and its affiliates (“ANR”), and the West Virginia Department of Environmental Protection (the "Department" and, collectively with ANR, the "Parties").
WHEREAS , the Parties herein and others previously entered into a Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia dated July 12, 2016, as previously amended pursuant to an Amendment dated as of July 25, 2016 (as so amended, the “Settlement Agreement” and as further amended hereby the “Amended Settlement Agreement”);
WHEREAS , the Settlement Agreement defined the terms and framework for bonding and accomplishing mine land reclamation and associated environmental restoration in West Virginia on mining complexes operated under permits previously issued to ANR and its subsidiaries by the Department (the “West Virginia Permits”);
WHEREAS , Exhibit A sets forth all of the West Virginia Permits currently in the name of ANR;
WHEREAS , the West Virginia Permits includes Active Sites, Inactive Sites, Not Started Sites and Reclaim-Only Sites, as those terms were defined by the Settlement Agreement;
WHEREAS , the Settlement Agreement required ANR to provide Penal Bonds for the Reclaim-Only Sites by specified deadlines;
WHEREAS , concurrently herewith, ANR is entering into a transaction (the “Sale Transaction”) to sell and transfer the permits associated with the majority of the Reclaim-Only Sites to a third party (the “Purchaser”);
WHEREAS , ANR will retain certain mining permits (the “Retained Permits”), including but not limited to certain Reclaim-Only Sites (the “Retained Reclaim-Only Sites”):
WHEREAS , Exhibit B hereto lists each of the Retained Permits (it being understood that the Retained Permits shall include any and all permits that remain in the name of ANR or its subsidiaries and affiliates on the Effective Date (as hereinafter defined) other than the Transfer Pending Permits (as hereinafter defined) identified on Exhibit C hereto) and identifies each of the Retained Reclaim-Only Sites;
WHEREAS , ANR has separately entered into other transactions to sell and transfer other permits to other purchasers for which transfer applications or other acceptable paperwork have been submitted to the Department (“Transfer Pending Permits”);

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WHEREAS , Exhibit C hereto lists each of the Transfer Pending Permits and identifies which of those permits are Reclaim-Only Sites;
WHEREAS , the mining permits held by Rawl Sales and Processing Co., LLC (the “Rawl Permits”) were originally intended to be sold and transferred pursuant to the Sale Transaction, but were excluded from the Sale Transaction and will now be sold separately to an unaffiliated third-party after the close of the Sale Transaction and the date of this Second Amendment;
WHEREAS, Exhibit D hereto lists each of the Rawl Permits and identifies which of those permits are Reclaim-Only Sites; and
WHEREAS , the Parties wish to re-define certain terms for bonding and accomplishing mine land reclamation and associated environmental restoration on the Retained Reclaim-Only Sites from and after the Effective Date (as hereinafter defined).
NOW THEREFORE , in consideration of the foregoing, the execution and delivery of the Amended Reclamation Funding Agreement (as hereinafter defined), and the mutual covenants hereinafter set forth, the Parties hereto agree, as follows:
1. Definitions.
(a)      Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Settlement Agreement.
(b)      In addition to the terms defined elsewhere in this Second Amendment, the terms below have the following meanings herein:
(1) " Amended Reclamation Funding Agreement " means the agreement, substantially in the form attached hereto as Exhibit E , by and among ANR, the Purchaser, Contura, and the appropriate regulatory agencies of each of the States of Illinois, Tennessee (as administered by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia.
(2) " Effective Date " means the date upon which this Second Amendment becomes effective in accordance with its terms.
(3) " Event of Default " has the meaning ascribed to it in Section 7(a) hereof.
(4) “ Reclamation Funding Agreement ” means the July 12, 2016 agreement by and among ANR, Contura and the appropriate regulatory agencies of each of the States of Illinois, Tennessee (as administrated by OSMRE) and West Virginia and the Commonwealths of Kentucky and Virginia.
(5) " Restricted Cash Accounts " means, collectively, the Restricted Cash Reclamation Account and the Water Treatment Restricted Cash Account.

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(6) " Restricted Cash Reclamation Account " means the separate interest bearing segregated deposit account for each of the Regulatory Authorities in which account each such respective Regulatory Authority holds a first priority security interest, perfected by "control" under the applicable Uniform Commercial Code.
(7) “ Security Agreement ” means the collateral security agreements and deed of trust, substantially in the forms attached hereto as Exhibit F .
(8) " Site Reclamation Agreement " means any Site Reclamation Agreement, as defined in Section 4(b)(i) hereof.
(9) " Water Treatment Restricted Cash Account " means the Water Treatment Restrict Cash Accounts established for each of the Regulatory Authorities pursuant to and in accordance with the Water Treatment Stipulation.
(10) “ Water Treatment Stipulation ” means the Stipulation Regarding Water Treatment Obligations dated as of July 12, 2016 by and among ANR, Contura, Citicorp North America, Inc., as Agent, and the United States Environmental Protection Agency.
2.     Bonding and Other Financial Assurance.
(a) Posting of Penal Bonds . On or before the closing date of the Sale Transaction, ANR shall post Surety Bonds with respect to all permits on all Retained Reclaim-Only Sites that are currently Self-Bonded. A schedule of the Retained Reclaim-Only Sites identifying those sites that are currently Self-Bonded is attached hereto as Exhibit B . To the extent that the Transfer Pending Permits listed in Exhibit C or the Rawl Permits listed in Exhibit D hereto are not ultimately sold and transferred, ANR shall also post Surety Bonds for those permits, to the extent those permits are Self-Bonded. This provision has no effect on ANR’s obligations to bond Active Sites, Inactive Sites, and Not-Started Sites under the Settlement Agreement.
(b) Financial Assurance .
(i)      On or before the closing of the Sale Transaction, ANR shall transfer its rights to the $24,000,000 Cash Bond to the Purchaser as described in Section 2(b)(1)(C) of the Amended Reclamation Funding Agreement.
(ii)      The mortgage in the office and associated real estate in Julian, WV, previously granted by ANR as a Collateral Bond to reduce its Self-Bonded liability, shall remain in place notwithstanding the elimination of ANR’s Self-Bonded liability through December 31, 2018 and secure ANR’s obligations under this Amended Settlement Agreement and the Amended Reclamation Funding Agreement.
(iii)      Upon the transfer to a third party(ies) of, or the posting by ANR of Surety Bonds for, all of the Transfer Pending Permits and Rawl Permits, the

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Department shall promptly return the $15,000,000 Letter of Credit posted by ANR pursuant to Section 3(c)(iii) of the Settlement Agreement.
(iv)      On or prior to the Effective Date, ANR shall execute and deliver the Security Agreement(s) to secure the payments required to be made by ANR under Sections 2(b)(2) and 2(b)(3) of the Amended Reclamation Funding Agreement. This Security Agreement(s) shall supersede and replace the Security Agreement delivered by ANR pursuant to Section 3(e)(iv) of the Settlement Agreement. The collateral to be encumbered by the Security Agreement(s) will be as follows:
a.
(x) Real property in West Virginia subject to a real property lease with annual minimum royalties, rents or any similar payment obligations, in excess of $1,000,000 in the most recently ended fiscal year, and (y) other real property in West Virginia subject to a real property lease and which is the subject of an active operation of ANR (the leases described in the foregoing clauses (x) and (y) collectively, “Leases”) to the extent granting a lien is not a breach of the Lease subject to the following terms and conditions: within 180 days after the date hereof, ANR will (1) deliver to the Department legal descriptions of such leased real property, and (2) for the Leases that prohibit the granting of a lien, use commercially reasonable efforts to obtain consent to grant the lien, provided that nothing herein shall be construed as requiring ANR to pay any sums to the applicable lessor (it being understood, for avoidance of doubt, that, without limiting the foregoing obligations of ANR, any failure to grant a security interest in any such leasehold interest as a result of failure to obtain a consent is not a default hereunder, and ANR will no longer be required to use commercially reasonable efforts to obtain such consent after the said 180-day period); and
b.
As extracted collateral related to the leased real property described in the foregoing clause (a).
3. Funding of the Restricted Cash Accounts. The funds in the Restricted Cash Accounts shall be transferred by ANR to the new Restricted Cash Accounts opened by Purchaser pursuant to the Amended Reclamation Funding Agreement and funded as provided by Sections 2 and 7 of the Amended Reclamation Funding Agreement.
4. West Virginia Reclamation Compliance .
(a)      Obligation to Complete Reclamation .
(i)      ANR reaffirms its obligations to Fully Reclaim all Retained Reclaim-Only Sites in accordance with the applicable permits and all applicable state and federal laws.

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(ii)      Reclamation of all Retained Reclaim-Only Sites shall be complete or current by July 26, 2026.
(b)      Reclamation Agreements .
(i)      To the extent necessary or appropriate, ANR and the Department shall negotiate in good faith and use reasonable best efforts to enter into site-specific reclamation agreements (collectively, the " Site Reclamation Agreements ") with respect to any Retained Reclaim-Only Sites, subject to the Department's permit modification procedures.
(ii)      ANR and the Department shall negotiate in good faith and enter into such other consent orders as the Department shall deem necessary or appropriate to embody the terms of the Site Reclamation Agreements and the Amended Settlement Agreement.
(c)      Permit Transfers .
(i)      Within 30 days of the Effective Date, the Purchaser will submit to the Department complete and signed applications (along with payment of applicable transfer fees) for transfers of the permits subject to the Sale Transaction.
(ii)      The transfer applications will be advertised in accordance with, and otherwise comply with, applicable regulatory requirements.
(iii)      The Department shall expeditiously review the permit transfer applications and complete permit transfers to the Purchaser for the permits subject to the Sale Transaction.
(iv)      ANR shall respond expeditiously to any comments received on such applications.
(v)      The Parties agree to cooperate and work in good faith with each other such that all the permits subject to the Sale Transaction are transferred to the Purchaser expeditiously.
(d)      Consent Order . On the Effective Date, ANR and the Department shall enter into a Consent Order substantially in the form attached hereto as Exhibit G.
5. Termination of Contura Obligations . Because Contura has satisfied its obligations under the Settlement Agreement, and because this Amended Settlement Agreement relates solely to ANR’s obligations after the Effective Date, Contura’s obligations under the Settlement Agreement should be and are hereby terminated and Contura shall not be a party to or have obligations under this Amended Settlement Agreement.

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6. Releases . The releases provided by Section 8 of the Settlement Agreement remain in full force and effect.
7. Events of Default .
(a)      Each of the following shall constitute an Event of Default under this Agreement:
(i)      ANR fails to make any payment under and in accordance with Section 2 or 7 of the Amended Reclamation Funding Agreement within ten days of its due date;
(ii)      ANR fails to perform its obligations under the Consent Order; or
(iii)      ANR fails to perform its obligations under the Amended Settlement Agreement or any Site Reclamation Agreement.
(b)      If an Event of Default occurs with respect to this Agreement, the Department may provide notice to ANR of such Event of Default (the " Notice of Payment Default "). For any Event of Default arising pursuant to Section 7(a)(ii) and (iii), ANR shall have until the date that is fifteen days from the date of their receipt of the Notice of Default (the " Cure Deadline ") to cure such Event of Default.
(c)      Upon the occurrence of an Event of Default and during its continuation after the Cure Deadline, the Department may
(i)      terminate the Amended Settlement Agreement;
(ii)      draw down on any letter of credit or other collateral posted pursuant to the Amended Settlement Agreement; and/or
(iii)      take any other regulatory or enforcement action permitted by law, including but not limited to, list the applicable shareholders, directors, officers, employees or agents of ANR on the Applicant/Violator System.
(d)      The Department shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of the Department of any right to take any action upon the occurrence of any Event of Default.
(e)      Nothing in this Section shall be deemed or construed to limit or otherwise affect the authority or ability of the Department to issue notices of violation or cessation orders, revoke any permit, forfeit any bond or take any other regulatory action against the Purchaser, ANR, Contura, or any other person or entity or in respect of any permits or mining sites in the State, whether before, during or after the occurrence of an Event of Default or in the absence of an Event of Default.

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FINAL DRAFT – DATES TO BE ADDED IN EXECUTION VERSION

8. Conditions to Effectiveness . The following shall be conditions to the effectiveness of this Second Amendment:
(a)    the closing of the Sale Transaction shall have occurred on or before October 23, 2017;
(b)    the Amended Reclamation Funding Agreement shall have become effective in accordance with its terms;
(c)    ANR and Contura shall have timely performed all of their respective obligations under the Reclamation Funding Agreement through the Effective Date;
(d)    ANR shall have made all the payments and transfers required to be made on or before the Effective Date pursuant to the Amended Reclamation Funding Agreement;
(e)    ANR shall have executed and delivered to the Department the Security Agreement(s);
(f)    the reclamation agreement between the Purchaser and the Department shall have become effective in accordance with its terms; and
(g)    the Purchaser shall have posted Surety Bonds, acceptable in form and substance to the Department.
9. Representations and Warranties . ANR represents and warrants that:
(a)    Exhibit A sets forth all of the mining and related permits it currently holds in the State of West Virginia and any applicable NPDES permits;
(b)    Exhibit B sets forth all of the West Virginia permits ANR will retain after consummation of the Sale Transaction and any applicable NPDES permits; and
(c)    Exhibit C sets forth all permits that are currently the subject of pending transfer applications with ot her purchasers (the “Transfer Pending Permits”).
10. Attorneys’ Fees and Costs . ANR (and not the Transferee) shall pay all reasonable legal fees and other costs incurred by the Department in connection with the transactions contemplated in connection with the Sale Transaction, this Second Amendment, the Amended Settlement Agreement, the Amended Reclamation Funding Agreement, the transfer of the permits subject to the Sale Transaction, and the negotiation and documentation of the reclamation agreement with the Purchaser.
11. Construction. Nothing in this Agreement shall be construed as limiting or interfering with the Department’s exercise of discretion with respect to approving any permit transfer or other required regulatory approval or alter or affect the obligations of ANR or any of their successors or assigns, as the case may be, to perform or complete reclamation, mitigation and water

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FINAL DRAFT – DATES TO BE ADDED IN EXECUTION VERSION

treatment of all of its or their respective permitted sites in accordance with any applicable law, consent decree or other agreement.
12. Successors and Assigns. The provisions of this Second Amendment and the Amended Settlement Agreement shall be binding on the Parties and their successors and assigns, as applicable, and shall inure to the benefit of the Parties and their successors and assigns.
13. Entire Agreement. This Second Amendment, together with all documents and other agreements referenced herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.
14. Governing Law. The Amended Settlement Agreement shall be governed by and construed under the laws of the State without regard for the conflict of laws provisions thereof.
15. Authority and Validity . Each Party otherwise represents, warrants and acknowledges, as of the Effective Date that: (a) it has all the requisite authority (i) to execute and deliver this Second Amendment and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Second Amendment and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) such Party's execution and delivery of, and performance under, this Second Amendment and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Second Amendment or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Second Amendment has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Second Amendment; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Second Amendment does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party.
16. No Reliance. Each Party represents and warrants that in entering into this Second Amendment it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Second Amendment, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
17. Modification or Amendment. The Amended Settlement Agreement may be modified or amended only by written agreement executed by each of the Parties.
18. Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be

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FINAL DRAFT – DATES TO BE ADDED IN EXECUTION VERSION

taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of the Amended Settlement Agreement and to consummate the transactions contemplated hereby and thereby.
19. Construction. This Second Amendment has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Second Amendment so as to give rise to any presumption of convention regarding construction of this document. All terms of this Second Amendment were negotiated at arms'-length, and this Second Amendment was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other.
20. Headings. Titles and headings in this Second Amendment are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Second Amendment.
21. Execution in Counterpart. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Second Amendment may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
22. Severability. If any provision of this Second Amendment is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
23. Termination. This Agreement shall terminate upon the later of:
(a)    the completion of ANR’s funding obligations pursuant to Sections 2 and 7 of the Amended Reclamation Funding Agreement; and
(b)    the completion of ANR’s obligations to achieve reclamation of its then-remaining Retained Reclaim-Only Sites as provided in Section 4(a)(ii) herein; or
(c)    the approved transfer of ANR’s then-remaining Retained Reclaim-Only Sites by a purchaser that assumes, and has the ability to perform as determined by the Department, reclamation of such sites as prov ided in Section 4(a)(ii) herein.
(Remainder of Page Intentionally Blank; Signatures to Follow)

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IN WITNESS WHEREOF, the Parties hereto have executed this Second Amendment as of the date set forth above.



ANR, INC.., on behalf of itself and its affiliates
 
WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
 
 
 
 
 
 
/s/ Andrew B. McCallister
 
/s/ Kristin A. Boggs
By: Andrew B. McCallister
 
By: Kristin A. Boggs
Its: Senior Vice President, General Counsel and Secretary
 
Its: General Counsel
 
 
 
 
 
Acknowledged and Agreed as to Section 5 only
CONTURA ENERGY, INC.
 
 
 
 
 
 
 
 
/s/ Mark Manno
 
 
By: Mark Manno
 
 
Its: EVP, General Counsel, Secretary & CPO
 
 


Exhibit 10.23

STIPULATION REGARDING WATER TREATMENT OBLIGATIONS
THIS STIPULATION (as it may be amended or modified from time to time, this “Stipulation”) is made and entered into as of July 12, 2016, by and among: (a) Alpha Natural Resources, Inc. (“ANR”), on behalf of itself and its debtor-affiliates (collectively with ANR, the “Debtors” or, when used in reference to such Debtors on or after the Effective Date (as defined herein), the “Reorganized Debtors”); (b) Contura Energy, Inc. (the “Purchaser”); (c) Citicorp North America, Inc. (the “First Lien Agent”); and (d) the United States Environmental Protection Agency (“EPA” and, collectively with the Debtors, the Purchaser and the First Lien Agent, the “Parties”).
WHEREAS, on August 3, 2015, the Debtors each filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Court”), which cases are being jointly administered under case number 15-33896 (KRH) (collectively, the “Chapter 11 Cases”);
WHEREAS, on May 25, 2016, the Debtors filed the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases (as it may be modified, supplemented or amended, the “Plan”), the solicitation version of which is attached as Exhibit A to the Notice of Filing of Solicitation Versions of (A) Second Amended Joint Plan of Reorganization and (B) Related Second Amended Disclosure Statement (Docket No. 2594);
WHEREAS, on March 5, 2014, the United States of America, on behalf of EPA, and several states (collectively the “Government Plaintiffs”) filed Civil Action No. 2:14-cv-11609 (the “EPA Action”) in the United States District Court for the Southern District of West Virginia (the “West Virginia Court”) alleging that ANR and various subsidiaries (collectively, the “Complaint Debtors”) violated Sections 301 and 402 of the Federal Clean Water Act, 33 U.S.C. §§ 1311 and 1342 (the “Clean Water Act”), and analogous state provisions by discharging pollutants in violation of various of the Complaint Debtors’ National Pollutant Discharge Elimination System (“NPDES”) permits or without obtaining NPDES permits.
WHEREAS, on November 26, 2014, the West Virginia Court approved a consent decree (the “EPA Consent Decree”) between the Government Plaintiffs, and the Complaint Debtors and certain additional Debtors (collectively, the “Signatory Debtors”) resolving the EPA Action.
WHEREAS, the EPA Consent Decree applies to the Signatory Debtors’ Facilities and Future Facilities (as such terms are defined in the EPA Consent Decree) located in Kentucky, Pennsylvania, Tennessee, Virginia and West Virginia.
WHEREAS, pursuant the EPA Consent Decree, including the appendices attached thereto, may be modified only by a subsequent written agreement signed by all parties


    


thereto. Where the modification constitutes a material change to the EPA Consent Decree, the modification shall be effective only upon approval by the West Virginia Court.
WHEREAS, the Debtors are parties to a transaction (the “Sale Transaction”) pursuant to that certain Asset Purchase Agreement (including all schedules and exhibits associated therewith) with the Purchaser and attached as Exhibit I.A.250 to the Plan to be entered into on or prior to the Effective Date (as defined in the Plan) providing for (a) the sale of certain of the Debtors’ assets (collectively, the “Purchased Assets”) to the Purchaser, (b) the assumption of certain of the Debtors’ liabilities by the Purchaser, (c) the transfer to the Purchaser of certain permits and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS, the Debtors intend that the Reorganized Debtors will retain substantially all of the Debtors’ coal mining assets that are not sold pursuant to the Sale Transaction (collectively, the “Retained Assets”);
WHEREAS, contemporaneously herewith, the Debtors and the Purchaser have entered into: (a) that certain Reclamation Funding Agreement (the “Reclamation Funding Agreement”) with the applicable regulatory authorities (collectively, the “Regulatory Authorities”) for each of the states where the Reorganized Debtors will have Retained Assets following the Effective Date (collectively, the “States”) providing for, and allocating among the Regulatory Authorities, certain funds from the Purchaser and the Reorganized Debtors to support the Reorganized Debtors’ performance of their reclamation obligations; and (b) separate settlement agreements (collectively, the “State Settlement Agreements”) with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in their respective states in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq., its state analogues and other applicable mining and environmental related statutes and regulations;
WHEREAS, the State Settlement Agreement with respect to the State of Tennessee contemplates that, following the Effective Date, the Reorganized Debtors shall work in good faith with the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee to establish a water treatment trust (the “Tennessee Water Treatment Trust”) to fund the performance of the Reorganized Debtors’ water treatment obligations in the State;
WHEREAS, the Parties desire to enter into this Stipulation to define the framework and funding for the fulfillment of the Reorganized Debtors’ and the Purchaser’s obligations under the EPA Consent Decree;
WHEREAS, the terms of this Stipulation are incorporated into the Plan, and the Parties intend that this Stipulation shall be subject to approval by the Bankruptcy Court in connection with confirmation of the Plan;

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NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have the meanings given to them in the Plan.
2. Assumption of Consent Decree Obligations
(a) The Reorganized Debtors shall assume their obligations under the EPA Consent Decree with respect to all of the Retained Assets. Notwithstanding anything to contrary herein, the Debtors shall continue to pay all stipulated penalties accruing under the EPA Consent Decree from August 3, 2015 through the Effective Date for both the Retained Assets and Purchased Assets. After the Effective Date, (a) the Reorganized Debtors shall pay all stipulated penalties accruing with respect to the Retained Assets and (b) the Purchaser shall pay all stipulated penalties accruing pursuant to subparagraph (b) hereof.
(b) The Advanced Water Treatment obligations at the Cumberland and Emerald mines will pass to one or more subsidiaries of the Purchaser, and such subsidiaries will comply with all Consent Decree obligations except for those set forth in Section V (Civil Penalty), Section VII (Injunctive Relief), Section VIII (Selenium Injunctive Relief), Paragraph 97(a)-(d) & (h), Paragraph 98, Paragraphs 116-118 and Appendices A and B. Such subsidiaries will agree to a modification of Paragraph 161 to provide that they may serve a request for termination of the Consent Decree only after completing the requirements of Section IX (Osmotic Pressure Injunctive Relief) and thereafter maintaining consistent satisfactory compliance with the Consent Decree for a period of two years.
(c) The Debtors will continue to cooperate and work in good faith with EPA to develop appropriate modification language with respect to the assumption of obligations under the Consent Decree by the Reorganized Debtors and the Purchaser, as applicable.
(d) Nothing herein shall relieve the Debtors of their obligation to ensure that the Advanced Water Treatment requirements at the Cumberland and Emerald mines are implemented unless and until a modification of the EPA Consent Decree is entered by the West Virginia Court providing for assumption of those obligations by the Purchaser.
3. Funding of the Reorganized Debtors’ Water Treatment Obligations
(a) The Reorganized Debtors will provide EPA and the Regulatory Authorities for the states in which their water treatment occurs (i) an annual summary of the expenditures on their water treatment for the previous year, (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Reorganized Debtors will provide EPA with copies of any

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budgets delivered to the Regulatory Authorities in accordance with the terms of the State Settlement Agreements.
(b) The First Lien Lender Contribution
(i) On the Effective Date, the Reorganized Debtors, with the consent of the First Lien Lenders, shall pay from the First Lien Lenders’ collateral an additional $5 million (which otherwise would have been part of the First Lien Lender Distribution) to support the Reorganized Debtors’ compliance with their water treatment obligations (the “First Lien Lender Contribution”).
(ii) The First Lien Lender Contribution will be allocated equally among the States to be used for water treatment and other approved projects to improve water quality.
(iii) On or prior to the Effective Date, the Reorganized Debtors shall create either of the following accounts (in either case, a “Water Treatment Restricted Cash Account”) with respect to each State to receive such State’s share of the First Lien Lender Contribution: (i) a segregated subaccount within the each State’s Restricted Cash Reclamation Account (as defined in the applicable State Settlement Agreement); or (ii) a separate segregated restricted cash account.
(c) The Reorganized Debtor Contribution
(i) The Reorganized Debtors shall contribute $15 million into the Water Treatment Restricted Cash Accounts from 2017 through 2023 (the “Reorganized Debtor Contribution”) to fund compliance with their water treatment obligations.
(ii) The Reorganized Debtor Contribution shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on July 1, 2017:

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YEAR
PAYMENT DATES
AGGREGATE ANNUAL PAYMENT AMOUNT
2017
July 1, October 1
$1,000,000
2018
January 1, April 1, July 1, October 1
$1,500,000
2019
January 1, April 1, July 1, October 1
$2,500,000
2020
January 1, April 1, July 1, October 1
$2,500,000
2021
January 1, April 1, July 1, October 1
$2,500,000
2022
January 1, April 1, July 1, October 1
$2,500,000
2023
January 1, April 1, July 1, October 1
$2,500,000
Total
 
$15,000,000

(iii) The Reorganized Debtor Contribution for 2017 shall be divided equally among the States. Thereafter, (x) Reorganized Debtors shall provide twenty percent of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust until such requirement is terminated pursuant to subparagraph (iv) below, and (y) the remainder of the annual Reorganized Debtors Contribution shall be divided among the other states according to the percentage of actual expenditures on water treatment in each State in the prior year; provided that, each state shall receive a minimum of at least $25,000 each year. The Reorganized Debtors will track their spending on water treatment in each State and submit a report to the applicable Regulatory Authority and EPA by September 30 of each year detailing such expenditures for the period from July 1 to June 30 of the previous year. The foregoing provision shall be included in the Reclamation Funding Agreement.
(iv) Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent Reorganized Debtor Contribution amounts shall be allocated among the other States in accordance with Section 3(c)(iii)(y) hereof.
(d) The Reorganized Debtors will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the “Minimum Balance”) that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Reorganized Debtors and the applicable Regulatory Authority on an annual basis; provided that, nothing herein requires the Reorganized Debtors to designate more than $1,000,000 as the aggregate amount of Minimum Balances among the Water Treatment Restricted Cash Accounts in 2016. The Reorganized Debtors shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.
(e) Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water

5
    


treatment expenses, water treatment system installations and reclamation activities that benefit water quality. The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the State Settlement Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the Reclamation Funding Agreement. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f) For the avoidance of doubt, the funding to be provided to the Water Treatment Restricted Cash Accounts pursuant to this Stipulation or to the Restricted Cash Reclamation Accounts (as defined in the Reclamation Funding Agreement) pursuant to the Reclamation Funding Agreement shall be used solely to fund the Reorganized Debtors’ obligations thereunder and shall not be used to assist or subsidize the Purchaser’s compliance with the EPA Consent Decree.
(g) The Reorganized Debtors hereby acknowledge their obligation to conduct water treatment and otherwise fully comply with applicable NPDES Permits, the Clean Water Act, and analogous state provisions with respect to the Retained Assets, without any limitation relating to the dollar amounts included in or required to be deposited by this Stipulation.
4. Releases.
(a) EPA agrees that, as of the Effective Date:
(i) EPA shall and does hereby release the Debtors’ directors, officers and employees and the First Lien Lenders, the First Lien Agent, the DIP Lenders, the DIP Agent and any affiliate of any of the foregoing and their respective directors, officers and employees for any civil claims, violations or conditions under the Clean Water Act relating to the Debtors’ assets and operations arising prior to the Effective Date, provided, however, that nothing in the foregoing shall release or affect the liability of (A) any director, officer or employee of the Reorganized Debtors for any claims or violations with respect to Retained Assets arising after the Effective Date, whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date, or (B) any director, officer or employee of the Purchaser for any claims or violations with respect to the Purchased Assets arising after the Effective Date, whether or not the conditions giving rise to such claims or violations arose prior to or after the Effective Date.
(ii) EPA shall and does hereby release the Purchaser, all of its subsidiaries and their respective directors, officers and employees for (A) any civil claims, violations or conditions under the Clean Water Act relating to the Retained Assets arising prior to the

6
    


Effective Date and (B) any civil claims or violations under the Clean Water Act relating to the Purchased Assets arising prior to the Effective Date, provided, however, that nothing in the foregoing shall release or affect any liability or obligation of the Purchaser, any of its subsidiaries or any director, officer or employee thereof for any claims or violations with respect to the Purchased Assets under the Clean Water Act to which the Purchaser, its subsidiaries, or any director, officer, or employee thereof is subject to because the Purchaser or any of its subsidiaries is the owner, lessee, permittee, controller, or operator of real property or a mining operation after the Effective Date (whether or not such liability, obligation, claim or cause of action is based in whole or in part on acts or omissions prior to the Effective Date), and further provided that the Purchaser, its subsidiaries, or any director, officer, or employee thereof shall not be liable for penalties or fines for days of violation prior to the Effective Date. For avoidance of doubt, none of: (A) the relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction; (B) the funding obligations of the Purchaser arising under the Reclamation Funding Agreement; or (C) the consummation of the Sale Transaction, shall be construed to classify or give any right to EPA to classify or treat the Purchaser or its subsidiaries or their respective shareholders, directors, officers or employees as an owner or controller of the Reorganized Debtors.
(iii) EPA shall and does hereby release the Reorganized Debtors and their directors, officers and employees for any civil claims, violations or conditions with respect to the Purchased Assets under the Clean Water Act, except to the extent that the Reorganized Debtors or their directors, officers, employees and agents are also employed by, or are otherwise the owner, lessee, permittee, controller, or operator of the Purchased Assets or the Purchaser after the Effective Date, and except as provided in Paragraph 2(d) herein. For avoidance of doubt, none of: (A) the relationships between the Reorganized Debtors and the Purchaser based on the post-Effective Date temporary exchange of administrative and other similar ministerial services and temporary ministerial collaboration between the Reorganized Debtors and the Purchaser, in each case solely to the extent necessary to effectuate the Sale Transaction; (B) the funding obligations of the Purchaser arising under the Reclamation Funding Agreement; and (C) the consummation of the Sale Transaction, shall be construed to classify or give any right to EPA to classify or treat the Reorganized Debtors or their subsidiaries or their respective shareholders, directors, officers or employees as an owner or controller of the Purchaser.
(b) The language attached hereto as Annex A shall be incorporated into the Plan and the order confirming the Plan (the “Confirmation Order”).
5. Events of Default.
(a) Each of the following (each, an “Event of Default”) shall constitute an event of default under this Stipulation:

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(i) The failure of the Reorganized Debtors, with the consent of the First Lien Lenders, to make the First Lien Lender Contribution within ten days after it is due in accordance with the terms of this Stipulation;
(ii) The failure of the Reorganized Debtors to timely contribute any Reorganized Debtor Contribution within ten days after the date that such contribution is due in accordance with the terms of this Stipulation;
(iii) The failure of the Reorganized Debtors or the Purchaser to timely comply with their obligations in accordance with EPA Consent Decree, and any modifications or amendments; and
(iv) The filing by the Reorganized Debtors of a voluntary petition for relief under the Bankruptcy Code, or the filing against the Reorganized Debtors of an involuntary petition that is not dismissed within 60 days.
(b) If an Event of Default occurs, EPA may provide notice to the Reorganized Debtors and the Purchaser of such Event of Default (the “Notice of Default”). The Reorganized Debtors and the Purchaser shall have until the date that is 30 days from the date of their receipt of the Notice of Default (the “Cure Deadline”) to cure any Event of Default arising pursuant to Section 5(a)(iii) hereof.
(c) Upon the occurrence of an Event of Default and, with respect to any Event of Default arising pursuant to Section 5(a)(iii) hereof, its continuation until after the Cure Deadline, EPA may:
(i) terminate this Stipulation;
(ii) deliver a notice of termination of the right to use cash in the Water Treatment Restricted Cash Accounts and require that all funds in such accounts be delivered to the applicable Regulatory Authority;
(iii) take any other regulatory or enforcement action permitted by law.
(d) EPA shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of EPA of any right to take any action upon the occurrence of any Event of Default.
(e) The termination of this Stipulation shall have no effect on the obligations of the Reorganized Debtors and the Purchaser hereunder or the obligations of the Reorganized Debtors and the Purchaser under the Reclamation Funding Agreement, or any of the releases granted under this Stipulation.
(f) Nothing in this Stipulation shall be deemed or construed to limit or otherwise affect the authority or ability of EPA to take regulatory action against the Reorganized Debtors with respect to any mines owned or operated by Reorganized Debtors after the

8
    


Effective Date, whether before, during, or after the occurrence of an Event of Default or in the absence of an Event of Default.
(g) Nothing in this Stipulation shall be deemed or construed to limit or otherwise affect the authority or ability of EPA to take regulatory action against the Purchaser with respect to any mines owned or operated by the Purchaser after the Effective Date, whether before, during, or after the occurrence of an Event of Default or in the absence of an Event of Default.
(h) An Event of Default by the Reorganized Debtors of the type described in Section 5(a)(ii) through (iv) shall not be construed to require the Purchaser to cure such defaults or otherwise make the Purchaser liable for such defaults. Similarly, an Event of Default by the Purchaser of the type described in Section 5(a)(iii) hereof shall not be construed to require the Reorganized Debtors to cure such default or otherwise make the Reorganized Debtors liable for such default.
6. Conditions to Effectiveness. The following shall be conditions to the effectiveness of this Stipulation:
(a) This Stipulation shall have been approved by the Bankruptcy Court;
(b) The Plan, as it may be amended consistent with the terms of this Stipulation, shall be confirmed on or before July 15, 2016;
(c) The Effective Date shall occur on or before July 31, 2016;
7. Stipulation and the Plan. This Stipulation shall be incorporated by reference into the Confirmation Order. To the extent this Stipulation conflicts or is otherwise inconsistent with the terms of the Plan or the Confirmation Order, the Stipulation shall govern.
8. Third Party Beneficiaries. The Parties acknowledge and agree that nothing in this Stipulation is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein).
9. Successors and Assigns. The provisions of this Stipulation shall be binding on the Parties and their successors and assigns, including any trustee appointed under the Bankruptcy Code and shall inure to the benefit of the Parties and their successors and assigns.
10. Entire Agreement. This Stipulation, together with all documents and other agreements referenced herein, including the EPA Consent Decree, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.

9
    


11. Governing Law. This Stipulation shall be governed by and construed under federal law without regard for the conflicts of laws provisions thereof.
12. Authority and Validity. Each non-governmental Party otherwise represents, warrants and acknowledges, as of the Effective Date and, in the case of the Debtors, subject to approval by the Bankruptcy Court, that: (a) it has all the requisite authority (i) to execute and deliver this Stipulation and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Stipulation and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein; (b) such Party’s execution and delivery of, and performance under, this Stipulation and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and no other action or proceeding is necessary to authorize and approve this Stipulation or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein; (c) this Stipulation has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Stipulation; and (d) the execution, delivery and performance by such Party (when such performance is due) of this Stipulation does not and shall not (i) violate any provision of law, rule or regulation applicable to it or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to EPA, the undersigned represents and warrants that he/she has authority to enter into this Settlement Agreement.
13. No Reliance. Each Party represents and warrants that in entering into this Stipulation it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Stipulation, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
14. Modification or Amendment. This Stipulation may be modified or amended only by written agreement executed by each of the Parties and, with regards to any provision impacting the First Lien Lenders and the First Lien Agent, the written consent of the First Lien Lenders or the First Lien Agent, as applicable.
15. Further Assurances. From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Stipulation and to consummate the transactions contemplated hereby and thereby.
16. Construction. This Stipulation has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Stipulation so as

10
    


to give rise to any presumption of convention regarding construction of this document. All terms of this Stipulation were negotiated at arms’-length, and this Stipulation was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Stipulation and the Plan, the terms of this Stipulation shall govern.
17. Headings. Titles and headings in this Stipulation are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Stipulation.
18. Execution in Counterpart. This Stipulation may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Stipulation may be transmitted by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
19. Severability. If any provision of this Stipulation is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(Remainder of Page Intentionally Blank; Signatures to Follow)

11
    



IN WITNESS WHEREOF, the Parties hereto have executed this Stipulation as of the date set forth above.
ALPHA NATURAL RESOURCES, INC.,
on behalf of itself and its debtor-affiliates



/s/ Mark M. Manno
_________________________________
By: Mark M. Manno
Its: EVP, General Counsel, CPO & Secretary

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY



/s/ Susan Shinkman
___________________________________
By: Susan Shinkman
Its: Director, Office of Civil Enforcement

 
 

CONTURA ENERGY, INC.



/s/ John DeGroote
___________________________________
By: John DeGroote
Its: President and Secretary

CITICORP NORTH AMERICA, INC.,
AS FIRST LIEN AGENT



/s/ Dale Goncher
___________________________________
By: Dale Goncher
Its: Vice President


12
    
Exhibit 10.24

AMENDED STIPULATION REGARDING
WATER TREATMENT OBLIGATIONS
THIS AMENDED STIPULATION is made and entered into as of October 23, 2017 (the “ Effective Date ”) by and among: (a) ANR, Inc., on behalf of itself and its debtor-affiliates (collectively “ ANR ”; (b) Lexington Coal Company, LLC (the “ Purchaser ”); and (c) the United States Environmental Protection Agency (“ EPA ”); collectively, the “ Parties ”).
WHEREAS , on March 5, 2014, the United States of America, on behalf of EPA, and several states (collectively the “ Government Plaintiffs ”) filed Civil Action No. 2:14‑cv‑11609 (the “ EPA Action ”) in the United States District Court for the Southern District of West Virginia (the “ West Virginia Court ”) alleging that affiliates of ANR, Inc., (collectively, the “ Complaint Defendants ”) violated Sections 301 and 402 of the Federal Clean Water Act, 33 U.S.C. §§ 1311 and 1342 (the “ Clean Water Act ”), and analogous state provisions by discharging pollutants in violation of various of the Complaint Defendants’ National Pollutant Discharge Elimination System (“ NPDES ”) permits or without obtaining NPDES permits.
WHEREAS , on November 26, 2014, the West Virginia Court approved a consent decree (the “ EPA Consent Decree ”) between the Government Plaintiffs, the Complaint Defendants, and certain additional Debtors (collectively, the “ Signatory Defendants ”) resolving the EPA Action.
WHEREAS , the EPA Consent Decree applies to the Signatory Defendants’ Facilities and Future Facilities (as such terms are defined in the EPA Consent Decree) located in Kentucky, Pennsylvania, Tennessee, Virginia and West Virginia.
WHEREAS , on August 3, 2015, ANR’s affiliates filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”), which cases were jointly administered under case number 15‑33896 (KRH) (collectively, the “ Chapter 11 Cases ”);
WHEREAS , on July 12, 2016, ANR, EPA, Contura Energy, Inc. (“Contura”) and Citicorp North America Inc., entered into a Stipulation Regarding Water Treatment Obligations (the “ Water Treatment Stipulation ”) setting forth the framework and funding for the fulfillment of the obligations under the EPA Consent Decree;
WHEREAS , on July 12, 2016, ANR and Contura entered into: (a) that certain Reclamation Funding Agreement (the “ Reclamation Funding Agreement ”) with the applicable regulatory authorities (collectively, the “ Regulatory Authorities ”) for each of the states where ANR retained assets were located, and allocating among the Regulatory Authorities, certain funds to support ANR’s performance of its reclamation obligations; and (b) separate settlement agreements (collectively, the “ State Settlement Agreements ”) with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in their respective states in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. , its state analogues and other applicable mining and environmental related statutes and regulations;

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WHEREAS , the State Settlement Agreement with respect to the State of Tennessee contemplates that ANR shall work in good faith with the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee to establish a water treatment trust (the “ Tennessee Water Treatment Trust ”) to fund the performance of ANR’s water treatment obligations in the State;
WHEREAS , on August 18, 2016, ANR filed notice of the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession in the Chapter 11 Cases, which, as modified by certain modifications, was approved by the Bankruptcy Court by order dated July 12, 2016 (as it may be modified, supplemented or amended, the “ Plan ”);
WHEREAS , ANR has made a $500,000 payment into the specified accounts to fund compliance with water treatment obligations pursuant to Paragraph 3(c)(ii) of the Water Treatment Stipulation and certifies that it has otherwise performed all of its respective obligations under the Water Treatment Stipulation through the Effective Date of this Amended Water Treatment Stipulation;
WHEREAS , ANR is a party to a transaction (the “ Sale Transaction ”) pursuant to that certain Asset Purchase Agreement with Purchaser providing for (a) the sale of certain of ANR’s assets (collectively, the “ Purchased Assets ”) to the Purchaser, (b) the assumption of certain of ANR’s liabilities by the Purchaser, (c) the transfer to the Purchaser of certain permits, and (d) certain transactions necessary to effectuate the foregoing;
WHEREAS , the Parties desire to enter into this Amended Stipulation to amend the framework and funding for the fulfillment of Water Treatment Obligations (as defined below) in light of the Sales Transaction;
WHEREAS , contemporaneously herewith, ANR, the Purchaser, and the Regulatory Authorities have entered into: (a) an Amended Reclamation Funding Agreement providing for, and allocating among the Regulatory Authorities, certain funds to support the Purchaser’s performance of its reclamation obligations; and (b) State Agreements with each of the Regulatory Authorities to define the terms and framework for accomplishing mine land reclamation and associated environmental restoration in their respective states, as necessary, in accordance with the Surface Mining Control and Reclamation Act of 1977, as amended, 30 U.S.C. §§ 1201, et seq. , its state analogues and other applicable mining and environmental related statutes and regulations;
WHEREAS , the State Agreements with respect to the State of Tennessee contemplate that, following the Effective Date, the Purchaser shall work in good faith with the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee to establish the Tennessee Water Treatment Trust to fund the performance of the Purchaser’s water treatment obligations in the State;
WHEREAS , on July 27, 2017, the United States, ANR, and certain Contura subsidiaries filed a Joint Stipulation and Order Modifying Consent Decree (“ EPA Consent Decree

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Modification ”) with the Southern District of West Virginia for approval by the court. The EPA Consent Decree Modification includes, among other provisions, a request to substitute the Contura subsidiaries as defendants with respect to the Section IX Osmotic Pressure Injunctive Relief requirements and related obligations in the Consent Decree;
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties hereto agree to amend as follows:
1. Consent Decree Obligations .
(a) Nothing herein shall relieve ANR of its obligations under the EPA Consent Decree with respect to all of the assets that are not transferred as part of the Sale Transaction (the “ Retained Assets ”)
(b) Pursuant to Paragraph 9 of the EPA Consent Decree, nothing herein shall relieve ANR of its obligations with respect to the Purchased Assets that are subject to the terms of Section VIII (Selenium Injunctive Relief) and related obligations. ANR has requested a modification of the EPA Consent Decree to relieve ANR of its monitoring and reporting and related obligations under Section VIII (Selenium Injunctive Relief) of the Decree with respect to the Purchased Assets.
(c) Pursuant to Paragraph 10 of the EPA Consent Decree, the Purchaser is not subject to the terms of the EPA Consent Decree with respect to the Purchased Assets.
(d) Notwithstanding anything to contrary herein, ANR shall continue to pay all stipulated penalties accruing under the EPA Consent Decree through the Effective Date for both the Retained Assets and Purchased Assets.
(e) Nothing herein shall relieve ANR of its obligations to ensure that the requirements of Section IX (Osmotic Pressure Injunctive Relief) and related obligations of the EPA Consent Decree are implemented unless and until the EPA Consent Decree Modification is entered by the Southern District of West Virginia.
(f) Nothing herein shall relieve ANR or the Purchaser of their obligation to comply with their NPDES permits, the Clean Water Act, or other Water Treatment Obligations.
2. Funding of the Purchaser’s Water Treatment Obligations
(a) Water Treatment Restricted Cash Accounts . On or prior to the Effective Date, the Purchaser shall create either of the following accounts (in either case, a “ Water Treatment Restricted Cash Account ”): (i) a segregated subaccount within the each State’s Restricted Cash Reclamation Account (as defined in the applicable Amended State Settlement Agreement); or (ii) a separate segregated restricted cash account.
(b) ANR’s Closing Contribution
(i) On the Effective Date, ANR, with the consent of the Regulatory Agencies, shall pay from the existing Water Treatment Restricted Cash Accounts

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all funds then in those accounts (the “ Closing Contribution ”) to the Water Treatment Restricted Cash Accounts established by Purchaser pursuant to Paragraph 2(a).
(ii) The Closing Contribution will be allocated among the States in accordance with the current division between the States to be used for Water Treatment Obligations.
(c) ANR Future Contributions
(i) ANR shall contribute $14 million into the Water Treatment Restricted Cash Accounts from 2018 through 2023 (the “ Future Contributions ”) to fund compliance with Water Treatment Obligations in connection with the Reclaim-Only Permits held by the Purchaser (as identified in Exhibit 1 attached hereto).
(ii) The Future Contributions shall be paid in the following annual total amounts in equal quarterly installments on the first day of each calendar quarter beginning on January 1, 2018:
Year
Payment Dates
Aggregate Annual Payment Amount
2018
January 1, April 1, July 1, October 1
$1,500,000
2019
January 1, April 1, July 1, October 1
$2,500,000
2020
January 1, April 1, July 1, October 1
$2,500,000
2021
January 1, April 1, July 1, October 1
$2,500,000
2022
January 1, April 1, July 1, October 1
$2,500,000
2023
January 1, April 1, July 1, October 1
$2,500,000
Total
 
$14,000,000
(iii) The Future Contribution for 2017 shall be divided equally among the States. Thereafter, ANR shall provide 33% of the Aggregate Annual Payment Amount to the Tennessee Water Treatment Trust until such requirement is terminated pursuant to subparagraph (iv) below, and the remainder of the annual Future Contributions shall be divided among the other states according to the percentage of actual expenditures on water treatment in each State in the prior year; provided that, each State shall receive a minimum of at least $25,000 each year. The Purchaser will track its spending on water treatment in each State and submit a report pursuant to Paragraph 3 to the applicable Regulatory Authority and EPA by September 30 of each year. The foregoing provision shall be included in the Reclamation Funding Agreement.
(iv) Once the Tennessee Water Treatment Trust has been fully funded in accordance with its terms, subsequent Future Contributions amounts shall be allocated among the other States in accordance with Section 2(c)(iii) hereof.

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(d) The Purchaser will cooperate and work in good faith with each Regulatory Authority to develop the minimum balance (the “ Minimum Balance ”) that will be maintained in the Water Treatment Restricted Cash Account for that State. The Minimum Balance may be adjusted by agreement between the Purchaser and the applicable Regulatory Authority on an annual basis. The Purchaser shall provide EPA with a copy of the written agreement that establishes the Minimum Balance for each State.
(e) Funds in the Water Treatment Restricted Cash Accounts that are in excess of the Minimum Balance established for that account may be utilized to pay for water treatment expenses, water treatment system installations and reclamation activities in connection with the Reclaim-Only Permits that benefit water quality (“ Water Treatment Obligations ”). The use of funds for water treatment expenses, including, without limitation, funds expended on chemicals, utilities, pond cleaning and maintenance of structures and systems, shall be included in the Semi-Annual Budget (as defined in the Amended State Settlement Agreements) provided to the Regulatory Authority and EPA but shall not require the prior approval of the applicable Regulatory Agency or EPA. Any use of funds to install water treatment systems or to conduct reclamation activities that will benefit water quality shall be subject to the budgeting and approval provisions of the Reclamation Funding Agreement. EPA and the applicable Regulatory Authority shall have the right to audit all expenditures from the Water Treatment Restricted Cash Accounts.
(f) The Minimum Balance of the Tennessee Water Treatment Trust may be adjusted each year by OSMRE to account for an increase in the Minimum Balance due to monetary erosion of the fund from long term inflation. OSMRE may, but is not required to, raise the Minimum Balance each year by an amount equal to the long-term inflation rate. If conditions change on the site that require a change in treatment or treatment system design, OSMRE retains to right to increase or decrease the Minimum Balance required as needed to maintain adequate funds to conduct water treatment and meet the performance goals of the treatment system. The Purchaser shall provide EPA with a copy of the Tennessee Water Treatment Trust agreement and any additional document that establishes the Minimum Balance for the Tennessee Water Treatment Trust.
(g) The Purchaser hereby acknowledges its obligation to conduct water treatment and otherwise fully comply with applicable NPDES Permits, the Clean Water Act, and analogous state provisions with respect to the Purchased Assets, without any limitation relating to the dollar amounts included in or required to be deposited by this Amended Stipulation.
3. Water Treatment Expenditure Reporting . By September 30 of each year, the Purchaser will provide EPA and the Regulatory Authorities for the states in which their water treatment occurs (i) an annual summary of the expenditures on water treatment for the previous year (from July 1 to June 30), (ii) an explanation of any material deviance (greater than 20%) in such expenditures from the prior year, and (iii) a certification of a senior executive officer that an amount sufficient to cover the water treatment costs expected to occur in the following year has been included in the budget for that year. In addition, the Purchaser will provide EPA with

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copies of any budgets delivered to the Regulatory Authorities in accordance with the terms of the Amended State Settlement Agreements.
4. Events of Default.
(a) Each of the following (each, an “ Event of Default ”) shall constitute an event of default by the non-performing Party under this Amended Stipulation:
(i) The failure of ANR, with the consent of the Regulatory Authorities, to make the Closing Contribution within ten days after it is due in accordance with the terms of this Amended Stipulation;
(ii) The failure of ANR to timely contribute any Future Contributions within ten days after the date that such contribution is due in accordance with the terms of this Amended Stipulation; and
(iii) The filing by ANR or the Purchaser of a voluntary petition for relief under the Bankruptcy Code, or the filing against the Purchaser or ANR of an involuntary petition that is not dismissed within 60 days.
(b) If an Event of Default occurs, EPA may provide notice to ANR and the Purchaser of such Event of Default.
(c) Upon the occurrence of an Event of Default, EPA may:
(i) terminate this Amended Stipulation;
(ii) deliver a notice of termination of the right to use cash in the Water Treatment Restricted Cash Accounts and require that all funds in such accounts be delivered to the applicable Regulatory Authority; and/or
(iii) take any other regulatory or enforcement action permitted by law.
(d) EPA shall not be required upon the occurrence of an Event of Default to take any or all of the foregoing actions, and its failure to do so at any time shall not constitute a waiver on the part of EPA of any right to take any action upon the occurrence of any Event of Default.
(e) The termination of this Amended Stipulation shall have no effect on the obligations of ANR and the Purchaser hereunder or the obligations of ANR and the Purchaser under the Reclamation Funding Agreement, or any of the releases granted under the Water Treatment Stipulation.
(f) Nothing in this Amended Stipulation shall be deemed or construed to limit or otherwise affect the authority or ability of EPA to take regulatory action against the ANR with respect to any mines owned or operated by ANR after the Effective Date, whether before, during, or after the occurrence of an Event of Default or in the absence of an Event of Default.

- 6 -

(g) Nothing in this Amended Stipulation shall be deemed or construed to limit or otherwise affect the authority or ability of EPA to take regulatory action against ANR or the Purchaser with respect to any mines owned or operated by ANR or the Purchaser after the Effective Date, whether before, during, or after the occurrence of an Event of Default or in the absence of an Event of Default.
(h) An Event of Default by ANR of the type described in Paragraph 4(a) shall not be construed to require the Purchaser to cure such defaults or otherwise make the Purchaser liable for such defaults. Similarly, an Event of Default by the Purchaser of the type described in Section 4(a)(iii) hereof shall not be construed to require ANR to cure such default or otherwise make ANR liable for such default.
5. Third Party Beneficiaries. The Parties acknowledge and agree that nothing in this Amended Stipulation is intended to benefit or create any right or cause of action in, or on behalf of, any person other than the Parties hereto (and their affiliated persons and entities who are intended to be beneficiaries of the releases and settlements set forth herein).
6. Successors and Assigns. The provisions of this Amended Stipulation shall be binding on the Parties and their successors and assigns, and shall inure to the benefit of the Parties and their successors and assigns.
7. Effect of Amended Stipulation on Water Treatment Stipulation .
(a) This Amended Stipulation supersedes the Water Treatment Stipulation as to the obligations of ANR. This Amended Stipulation does not otherwise affect, impact, alter, diminish or otherwise modify the terms and releases of the Water Treatment Stipulation.
(b) This Amended Stipulation relates solely to the obligations of ANR and Purchaser after the Effective Date, and neither Contura nor Citicorp North America, Inc. shall be a party to or have obligations under this Amended Stipulation.
8. Governing Law. This Amended Stipulation shall be governed by and construed under federal law without regard for the conflicts of laws provisions thereof.
9. Authority and Validity . Each non-governmental Party otherwise represents, warrants and acknowledges, as of the Effective Date that:
(a) it has all the requisite authority: (i) to execute and deliver this Amended Stipulation and the other documents and instruments contemplated hereby, to which it is contemplated to be a party, (ii) to perform its obligations under this Amended Stipulation and the other documents and instruments contemplated hereby to which it is contemplated to be a party and (iii) to consummate the transactions contemplated herein and therein;
(b) such Party’s execution and delivery of, and performance under, this Amended Stipulation and the other documents and instruments contemplated hereby to which it is contemplated to be a party and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary action, and

- 7 -

no other action or proceeding is necessary to authorize and approve this Amended Stipulation or the other documents and instruments contemplated hereby to which it is contemplated to be a party or any of the transactions contemplated herein or therein;
(c) this Amended Stipulation has been duly executed and delivered by such Party and constitutes a legal, valid and binding agreement by it, enforceable against it in accordance with the terms of this Amended Stipulation; and
(d) the execution, delivery and performance by such Party (when such performance is due) of this Amended Stipulation does not and shall not (i) violate any provision of law, rule or regulation applicable to it, or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party. With respect to EPA, the undersigned represents and warrants that he/she has authority to enter into this Settlement Agreement.
10. No Reliance. Each Party represents and warrants that in entering into this Amended Stipulation it is relying on its own judgment, belief and knowledge and, as applicable, on that of any attorney it has retained to represent it in this matter. In entering into this Amended Stipulation, no Party is relying on any representation or statement made by any other Party or any person representing such other Party.
11. Modification or Amendment. This Amended Stipulation may be modified or amended only by written agreement executed by each of the Parties.
12. Further Assurances . From and after the Effective Date, each of the Parties agrees to use their respective commercially reasonable efforts to execute or cause to be executed and deliver or cause to be delivered all such agreements, instruments and documents and take or cause to be taken all such further actions as may reasonably be necessary from time to time to carry out the intent and purpose of this Amended Stipulation and to consummate the transactions contemplated hereby and thereby.
13. Construction. This Amended Stipulation has been drafted through a cooperative effort of all Parties, and none of the Parties shall be considered the drafter of this Amended Stipulation so as to give rise to any presumption of convention regarding construction of this document. All terms of this Amended Stipulation were negotiated at arms’-length, and this Amended Stipulation was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the other. In the event of any inconsistency between the terms of this Amended Stipulation and the Plan, the terms of this Amended Stipulation shall govern.
14. Headings. Titles and headings in this Amended Stipulation are inserted for convenience of reference only and are not intended to affect the interpretation or construction of the Amended Stipulation.
15. Execution in Counterpart. This Amended Stipulation may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Amended Stipulation may be transmitted by facsimile or by electronic mail, and such transmission will, for all

- 8 -

purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party.
16. Severability. If any provision of this Amended Stipulation is determined to be prohibited or unenforceable, then such provision shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
17. Entire Agreement. This Amended Stipulation, together with all documents and other agreements referenced herein, including the EPA Consent Decree, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and there are no representations, understandings, or agreements relative hereto which are not fully expressed herein or therein.

(Remainder of Page Intentionally Blank; Signatures to Follow)

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IN WITNESS WHEREOF, the Parties hereto have executed this Amended Stipulation as of the date set forth above.

ANR, INC.,
on behalf of itself and its affiliates


/s/ Andrew B. McCallister
 
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY


/s/ Rosemarie Kelley
 
By: Andrew B. McCallister
Its: Senior Vice President, General Counsel and Secretary
 
By: Rosemarie Kelley
Its: Director, Office of Civil Enforcement U.S. EPA
 
LEXINGTON COAL COMPANY, LLC



/s/ Steven R. Poe
 
CONTURA ENERGY, INC.



/s/ Mark M. Manno
 
By: Steven R. Poe
Its: Manager
 
By: Mark M. Manno
Its: EVP, General Counsel, Secretary & CPO
 




[Signature Page For: AMENDED STIPULATION REGARDING WATER TREATMENT OBLIGATIONS]

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Exhibit 10.25
EXECUTION VERSION

JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 4414
Telephone: (216) 586-3939
Facsimile: (216) 579-0212
David G. Heiman (admitted pro hac vice )
Carl E. Black (admitted pro hac vice )
Thomas A. Wilson (admitted pro hac vice )
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
Telephone: (804) 788-8200
Facsimile: (804) 788-8218
Tyler P. Brown (VSB No. 28072)
J.R. Smith (VSB No. 41913)
Henry P. (Toby) Long, III (VSB No. 75134)
Justin F. Paget (VSB No. 77949)

Attorneys for Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

In re:
Alpha Natural Resources, Inc., et   al. ,
Debtors Party Two Name
 
Chapter 11  
 
Case No. 15-33896 (KRH)  
 
(Jointly Administered



STIPULATION AND AGREED ORDER AMONG THE DEBTORS, THE RETIREE COMMITTEE AND THE FIRST LIEN AGENT: (I) RESOLVING MOTION OF THE DEBTORS, PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE, FOR AN ORDER AUTHORIZING DEBTORS TO TERMINATE CERTAIN UNVESTED NON- PENSION BENEFITS; AND (II) GRANTING CERTAIN RELATED RELIEF
Alpha Natural Resources, Inc. (" ANR ") and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, the " Debtors "), the official committee of retired employees appointed in the above-captioned chapter 11 cases (the " Retiree Committee ") and Citicorp North America, Inc. (the " First Lien Agent " and, collectively with the Debtors and the Retiree Committee, the " Parties "), as administrative and collateral agent under the Debtors' prepetition first lien secured credit facility (the " First Lien Credit Facility "), by and through each of their undersigned counsel, hereby enter into this stipulation and agreed order


    


(this " Stipulation and Order ") regarding the provision of non-pension benefits to the Debtors' non-union former employees and retirees as of the Effective Date, including, but not limited to, the Parties' resolution of the Motion of the Debtors, Pursuant to Section 363 of the Bankruptcy Code, For an Order Authorizing Debtors to Terminate Certain Unvested Non-Pension Benefits (Docket No. 797) (the " Retiree Benefit Motion "). 1

Recitals
1.    On August 3, 2015 (the " Petition Date "), the Debtors commenced their reorganization cases (the " Bankruptcy Cases ") by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the " Bankruptcy Code ") in the United States Bankruptcy Court for the Eastern District of Virginia (the " Bankruptcy Court ").
2.    By order of the Bankruptcy Court (Docket No. 129), the Bankruptcy Cases have been consolidated for procedural purposes only and are being jointly administered.
3.    The Debtors are authorized to continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
4.    On February 8, 2016, the Debtors filed the Debtors' Omnibus Motion for Entry of: (I) an Order Establishing Bidding and Sale Procedures for the Potential Sale of Certain Mining Properties and Related Assets; (II) One or More Orders Approving the Sale of Such Assets; (III) an Order Approving Settlements Related to Unencumbered Assets and the Pre-Petition Lenders' Diminution Claims; and (IV) an Order Approving Amendments to Certain Case Milestones in Connection with the DIP Credit Agreement (Docket No. 1464) (the " Sale Motion ")
Capitalized terms not otherwise defined herein have the meanings given to them in the Retiree Benefit Motion.

2
    


seeking to commence a process for the sale of certain of their assets (collectively, the " Core Assets "). To facilitate this process, the lenders under the First Lien Credit Facility (collectively, the " First Lien Lenders ") agreed to establish an entity (the " Stalking Horse Bidder " or " NewCo ") to serve as a stalking horse bidder by credit bidding $500 million of the secured debt due the First Lien Lenders for the Core Assets. By an order entered on March 11, 2016 (Docket No. 1764), the Bankruptcy Court approved, among other things, (a) the procedures for the sale of the Core Assets subject to the Sale Motion and (b) the form of asset purchase agreement supporting the stalking horse bid made by the First Lien Lenders on behalf of the Stalking Horse Bidder (as such agreement may be modified, supplemented or amended, the " Stalking Horse APA ").
5.    On March 7, 2016, the Debtors filed the Joint Plan of Reorganization of Debtors and Debtors in Possession (as it may be modified, supplemented or amended, the " Plan ") and a related disclosure statement (Docket No. 1703). References herein to the Debtors shall include the reorganized Debtors following the effective date of the Plan (the " Effective Date "). 2
6.    As of the Petition Date, the Debtors provided certain non-pension benefits to the Debtors' non-union former employees and retirees and their eligible spouses, surviving spouses and eligible dependents (collectively, the " Non-Union Retirees "), including, without limitation: (a) the Non-Pension Retiree Benefits, as such term is defined in the Retiree Benefit Motion; and (b) the supplemental monthly subsidies to certain non-union retirees and spouses
The First Lien Agent subsequently allocated $175 million of the stalking horse credit bid to the Debtors' interest in the Pennsylvania Land Resources natural gas business in the Marcellus Shale in southwestern Pennsylvania (the "PLR Assets"). See Docket No. 1809. Consistent with the Sale Motion and Sale Procedures Order, on April 12, 2016, the Debtors filed a motion (Docket No. 2055) seeking to designate an alternative stalking horse bidder with respect to the PLR Assets, which motion was granted by the Bankruptcy Court pursuant to an order (Docket No. 2237), entered on April 26, 2016. Accordingly, as of the date hereof, the Stalking Horse Bidder retains a credit bid in the amount of $325 million for the Core Assets other than the PLR Assets.

3
    


who took part in the Voluntary Retirement Program (collectively, the " VRP Benefits " and collectively with the Non-Pension Retiree Benefits, the " Retiree Benefits ").
7.    On November 3, 2015, the Debtors filed the Retiree Benefit Motion and the Declaration of Judy Tweed Hill (Docket No. 799) in support thereof requesting authority to terminate the Non-Pension Retiree Benefits in the ordinary course of business in accordance with the terms of the applicable governing documents.
8.    The following responses were filed to the Retiree Benefit Motion (collectively, the " Responses "):
(a)
the Response to Motion of the Debtors, Pursuant to Section 363 of the Bankruptcy Code, for an Order Authorizing Debtors to Terminate Certain Unvested Non-Pension Benefits (Docket No. 877) filed by Michael J. Quillen, et al . (collectively, the " Retiree Movants ");
(b)
the Response to Motion of the Debtors, Pursuant to Section 363 of the Bankruptcy Code, for an Order Authorizing Debtors to Terminate Certain Unvested Non-Pension Benefits (Docket No. 879) filed by Harold Melton;
(c)
the Objection to Motion of the Debtors, Pursuant to Section 363 of the Bankruptcy Code, for an Order Authorizing Debtors to Terminate Certain Unvested Non-Pension Benefits (Docket No. 880) filed by David Canterbury, et al .;
(d)
The United Mine Workers of America’s (I) Response and Limited Objection to Debtors’ Motion to Terminate Certain Unvested Non-Pension Obligations; (II) Statement in Support of Motion for Continuance; and (III) Statement Regarding the Motion to Appoint Retiree Committee (Docket No. 907);
(e)
the Response (Docket No. 914) filed by Donald E. Keener, Jr.;
(f)
the Response (Docket No. 915) filed by Timothy M. Talley;
(g)
the Response (Docket No. 916) filed by Randy Miller;
(h)
the Response (Docket No. 928) filed by Roy West; and

4
    


(i)
the Response (Docket No. 929) filed by Don Rey Reed.
9.    On November 10, 2015, the Retiree Movants filed the Motion to Appoint Official Retiree Committee Pursuant to 11 U.S.C. § 1114 and Memorandum of Law in Support Thereof (Docket No. 868) (the " Retiree Committee Motion ").
10.    By an order entered on November 19, 2015 (Docket No. 970) (the " Retiree Committee Appointment Order "), the Court granted the relief requested in the Retiree Committee Motion and directed the appointment of an official committee of retired employees in these chapter 11 cases pursuant to section 1114(d) of the Bankruptcy Code.
11.    On December 1, 2015, the Office of the United States Trustee for Region Four filed a notice of its appointment of the Retiree Committee (Docket No. 1017).
12.    Following the appointment, the Retiree Committee, with the assistance of its professionals, began to investigate the allegations made in the Motion, initiated discovery regarding the same and took up the cause delineated in the various Responses.
13.    Thereafter, the Parties have negotiated in good faith regarding the Retiree Benefits and have agreed to a resolution of the Retiree Benefit Motion and certain other relief with respect to the Retiree Benefits as set forth herein.
14.    The Retiree Committee is authorized to resolve the Retiree Benefit Motion on the terms set forth in, and to enter into, this Stipulation and Order with respect to the Retiree Benefits in accordance with the Retiree Committee Appointment Order and sections 1114(b)(2) and (d) of the Bankruptcy Code. Retiree Committee Appointment Order, at 2; see also 11 U.S.C. §§ 1114(b)(2), (d).


5
    


Decretals
IT IS HEREBY STIPULATED AND AGREED THAT:
1.    The Retiree Benefit Motion is RESOLVED as set forth herein, and the Responses are overruled.
2.    The Debtors are authorized to modify the Retiree Benefits, consistent with the relief sought in the Retiree Benefit Motion, as such relief is modified hereby.
3.    As soon as practicable following the entry of this Stipulation and Order, the Retiree Committee shall: (a) establish a voluntary employees' beneficiary association (the " VEBA ") within the meaning of section 501(c)(9) of the U.S. Internal Revenue Code of 1986, as amended (the " IRC "); and (b) provide the Debtors, NewCo and/or the First Lien Lenders (where applicable) with written notice (the " Notice ") 3 that (i) the Retiree Committee has established the VEBA and (ii) the VEBA can accept contributions made as instructed therein. Nothing in this Stipulation and Order is intended to mandate or provide for the type, nature or duration of benefits or payments that may be offered or provided by the VEBA, and all decisions with respect thereto shall be within the sole discretion of the trustees of the VEBA (collectively, the " VEBA Trustees "). The Retiree Committee shall establish the VEBA solely for the benefit of the Debtors' eligible Non-Union Retirees who are receiving, or have fulfilled all necessary requirements for eligibility to receive, Retiree Benefits as of the Effective Date other than the Retained Benefits (as defined below) and the Life Insurance Plans (as defined in the Retiree Benefit Motion) (collectively, the " VEBA Beneficiaries "). For the avoidance of doubt, the
The Notice shall include the VEBA trust documents, which shall be in a form reasonably acceptable to the Debtors.


    


Retiree Committee shall be responsible for electing or appointing the VEBA Trustees, and the Debtors shall have no obligations regarding the establishment or administration of the VEBA.
4.    The First Lien Agent, at the direction of the required First Lien Lenders, agrees that, subject to the occurrence of the Effective Date, NewCo shall provide funding to the VEBA in an aggregate nominal amount of $13 million (the " VEBA Funding ") for the benefit of the VEBA Beneficiaries pursuant to the following schedule: 4
(a)
$3.0 million to be paid by NewCo within 10 business days after the later of the Effective Date or the Debtors' receipt of the Notice;
(b)
$3.0 million to be paid by NewCo on January 1, 2017;
(c)
$3.5 million to be paid by NewCo on January 1, 2018;
(d)
$2.5 million to be paid by NewCo on January 1, 2019; and
(e)
$1.0 million to be paid by NewCo on January 1, 2020.
5.     The Debtors (and, following the Effective Date, the Reorganized Debtors (as such term is defined in the Plan)) and NewCo shall reasonably cooperate with the Retiree Committee and the VEBA Trustees (as applicable) to facilitate the establishment of, and the orderly transition of the Debtors' obligations related to Retiree Benefits to, the VEBA, including but not limited to providing reasonable administrative assistance and all necessary books and records relating to the Retiree Benefits (the " VEBA Administrative Assistance ").
6.    This Stipulation and Order shall not modify, impair or otherwise alter, and the Debtors and the Reorganized Debtors shall retain their obligations to provide in the ordinary course, and subject to all of the Debtors' and Reorganized Debtors' rights with respect thereto
With respect to those dates set forth below that are not business days, the First Lien Lenders (or NewCo as directed by the First Lien Lenders) shall make the applicable payment to the VEBA on the first business day thereafter.

7
    


under applicable nonbankruptcy law, welfare benefits (medical (including prescription), dental and vision) payable to 53 former employees of Massey Energy Coal Company who were determined to be totally and permanently disabled as of December 31, 2011 and any eligible spouses, surviving spouses and dependents (collectively, the " Retained Benefits "). The Debtors shall not seek to terminate the Retained Benefits during the pendency of these chapter 11 cases. Except as set forth above with respect to the Retained Benefits and the provision of the VEBA Administrative Assistance, as of the Effective Date, the Debtors and the Reorganized Debtors shall have no further obligations with respect to the Retiree Benefits.
7.    The Debtors shall transfer to NewCo, and the First Lien Agent, at the direction of the required First Lien Lenders, agrees that NewCo shall assume, the Life Insurance Plans and all obligations thereunder pursuant to the Stalking Horse APA, subject to all of NewCo's rights under applicable nonbankruptcy law with respect thereto. Except as set expressly forth above with respect to the Life Insurance Plans, the VEBA Funding and the VEBA Administrative Assistance, as of the Effective Date, none of the First Lien Agent, the First Lien Lenders and NewCo shall have any obligations whatsoever with respect to the Retiree Benefits.
8.    As of the Effective Date, all of the Debtors' obligations with respect to the Retiree Benefits, other than the Retained Benefits, the Life Insurance Plans, and the VEBA Administrative Assistance, shall be deemed transferred to the VEBA (regardless of the date of establishment of the VEBA or whether the Debtors have received the Notice).
9.    Other than as expressly set forth herein, as of the Effective Date, the Debtors, their estates, the First Lien Agent, the First Lien Lenders, NewCo and each of their respective past and present parents, subsidiaries, affiliates, general partners, limited partners, shareholders, administrators, liquidators, directors, officers, employees, managers, agents,

8
    


attorneys, solicitors, trustees, fiduciaries, accountants and advisors, and each of the predecessors, successors (including the Reorganized Debtors) and assigns of the foregoing: (a) shall have no obligation to any of the VEBA Beneficiaries or any of his or her respective spouses, dependents, heirs, distributees, executors, administrators, officers, directors, agents, representatives, successors or assigns under or relating to the Retiree Benefits (with the exception of the Retained Benefits as set forth in paragraph 7 above and the Life Insurance Plans as set forth in paragraph 8 above); and (b) shall incur no liability for any claim related to any of the foregoing.
10.    From and after the date of entry of this Stipulation and Order, the Retiree Committee, the VEBA Beneficiaries and all other former employees of the Debtors or any of their predecessors shall be forever estopped and barred from seeking further relief in these Bankruptcy Cases, pursuant to sections 105(a), 363(b) and/or 1114 of the Bankruptcy Code or otherwise under any other statute or regulation, relating to the provision of the Retiree Benefits (with the exception of the Retained Benefits as set forth in paragraph 6 above and the Life Insurance Plans as set forth in paragraph 7 above).
11.    The Retiree Committee hereby agrees to support any Plan filed by the Debtors, provided that such Plan is not inconsistent with the terms of this Stipulation and Order and such Plan provides the equivalent treatment with respect to the Retiree Benefits as provided in this Stipulation and Order. The Debtors', the First Lien Agent's the First Lien Lenders' and NewCo's obligations under this Stipulation and Order are conditioned upon (a) the consummation of the sale of the Core Assets other than the PLR Assets to NewCo, (b) confirmation of the Plan and (c) the occurrence of the Effective Date. In the event that any of the foregoing conditions fails to occur by August 1, 2016, unless otherwise agreed by the Parties, (a) this Stipulation and Order shall be of no further force and effect, (b) the Retiree Benefit Motion

9
    


shall be reinstated and (c) the rights of each of the Parties with respect to the matters addressed herein shall be restored to their state as of the date hereof. In such event, the Stipulation and Order shall not be construed as or be deemed to be evidence of an admission or concession on the part of any Party.
12.    The modification or termination of any Retiree Benefits as set forth herein shall not give rise to any claim against any of the Debtors, NewCo, the First Lien Agent or the First Lien Lenders and neither the Debtors, NewCo, the First Lien Agent, the First Lien Lenders nor the Retiree Committee, nor any of their affiliates, successors (including the reorganized Debtors), directors, officers, employees, agents, representatives, retained professionals, attorneys, actuaries, financial advisors and assigns, shall have or incur any liability to any person (as defined in Section 101(41) of the Bankruptcy Code) or entity for any pre- or postpetition act taken or omitted to be taken in connection with, or related to formulating, negotiating, preparing, disseminating, implementing or administering this Stipulation and Order, any contract, instrument, release or other agreement or document created or entered into in connection with this Stipulation and Order, or any other pre- or post-petition act taken or omitted to be taken in connection with or in contemplation of this Stipulation and Order. Notwithstanding anything to the contrary herein, nothing in this paragraph shall negate the obligations as provided in this Stipulation and Order.
13.    Nothing in the Retiree Benefit Motion or this Stipulation and Order shall be deemed or construed as an approval or assumption of any agreement or contract pursuant to section 365 of the Bankruptcy Code or a waiver of the right of the Debtors.
14.    The requirements set forth in Bankruptcy Rule 6004(a) are satisfied.

10
    


15.    This Court shall retain jurisdiction over any and all matters arising from or related to the implementation, interpretation or enforcement of this Stipulation and Order.

SO ORDERED:
Dated:
July 15, 2016
/s/ Kevin R. Huennekens
 
Richmond, Virginia
UNITED STATES BANKRUPTCY JUDGE


11
    


STIPULATED AND AGREED
/s/ Henry P. (Toby) Long, III
 
/s/ Lynn Lewis Tavenner
David G. Heiman (admitted pro hac vice )
Carl E. Black (admitted pro hac vice )
Thomas A. Wilson (admitted u
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone: (216) 586-3939
Facsimile: (216) 579-0212
 
Lynn Lewis Tavenner (VSB No. 30083)
Paula S. Beran (VSB No. 34679)
David N. Tabakin (VSB No. 82709)
TAVENNER & BERAN, PLC
20 North Eighth Street, Second Floor
Richmond, Virginia 23219
Telephone: (804) 783-8300
Facsimile: (804) 783-0178
 
 
 
Tyler P. Brown (VSB No. 28072)
J.R. Smith (VSB No. 41913)
Henry P. (Toby) Long, III (VSB No. 75134)
Justin F. Paget (VSB No. 77949)
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
Telephone: (804) 788-8200
Facsimile: (804) 788-8218
 
 

ATTORNEYS FOR DEBTORS
AND DEBTORS IN POSSESSION
/s/ Henry P. (Toby) Long, III
 
/s/ Damon P. Meyer
 
 
Damian S. Schaible
Eli Vonnegut
Damon P. Meyer
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
Facsimile: (212) 701-5800

 
 
Dion W. Hayes
Sarah B. Boehm
K. Elizabeth Sieg
McGUIREWOODS LLP
800 East Canal Street
Richmond, Virginia 23219
Telephone: (804) 775-1000
Facsimile: (804) 775-1061  
 
ATTORNEYS FOR THE
FIRST LIEN AGENT



    


LOCAL RULE 9022-1 CERTIFICATION
I, Henry P. (Toby) Long, III, hereby certify that the foregoing proposed agreed order was served on all necessary parties.


/s/ Henry P. (Toby) Long, III
 


- 13 -
    
Exhibit 10.26
EXECUTION VERSION

JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone: (216) 586-3939
Facsimile: (216) 579-0212
David G. Heiman (admitted pro hac vice )
Carl E. Black (admitted pro hac vice )
Thomas A. Wilson (admitted pro hac vice )
Attorneys for Debtors and Debtors in Possession
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
Telephone: (804) 788-8200
Facsimile: (804) 788-8218
Tyler P. Brown (VSB No. 28072)
J.R. Smith (VSB No. 41913)
Henry P. (Toby) Long, III (VSB No. 75134)
Justin F. Paget (VSB No. 77949)
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
In re:
Alpha Natural Resources, Inc., et   al. ,
Debtors.
Chapter 11
Case No. 15-33896 (KRH)
(Jointly Administered)
STIPULATION BY AND AMONG THE DEBTORS, THE UMWA FUNDS AND THE FIRST LIEN AGENT RESOLVING VARIOUS PLAN-RELATED ISSUES
Alpha Natural Resources, Inc. (“ ANR ”) and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, the “ Debtors ”), The United Mine Workers of America 1974 Pension Plan and Trust (the “ 1974 Pension Plan ”), the United Mine Workers of America 1993 Benefit Plan and Trust (the “ 1993 Benefit Plan ”), the United Mine Workers of America 2012 Retiree Bonus Account Plan (the “ Account Plan ”), the United Mine Workers of America Cash Deferred Savings Plan of 1988 (the “ CDSP ”), the United Mine Workers of America Combined Benefit Fund (the “ Combined Benefit Fund ”), and the United Mine Workers of America 1992 Benefit Plan (the “ 1992 Plan ” and, together with the Combined Benefit Fund, the “ Coal Act Funds ”) (the Coal Act Funds, together with the 1974 Pension Plan, the 1993 Benefit Plan, the CDSP, and the Account Plan, the “ UMWA Funds ”), Citicorp North America, Inc., as administrative and collateral agent (the “ First Lien Agent ”), under the Debtors’ prepetition first lien secured credit facility (the “ First Lien Credit Facility ”), and Contura Energy, Inc. ( “ NewCo ”) (the Debtors, the





First Lien Agent, NewCo and the UMWA Funds, the “ Parties ”), by and through each of their undersigned counsel, hereby enter into this stipulation (this “ Stipulation ”) regarding the resolution of certain objections and other disputes related to the Debtors’ Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession (Docket No. 2527) (as it may be modified, supplemented or amended, the “ Plan ”). 1
Recitals
1.    On August 3, 2015 (the “ Petition Date ”), the Debtors commenced their cases (the “ Bankruptcy Cases ”) by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”).
2.    By order of the Bankruptcy Court (Docket No. 129), the Bankruptcy Cases have been consolidated for procedural purposes only and are being jointly administered.
3.    The Debtors are authorized to continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
4.    On February 8, 2016, the Debtors filed the Debtors’ Omnibus Motion for Entry of: (I) an Order Establishing Bidding and Sale Procedures for the Potential Sale of Certain Mining Properties and Related Assets; (II) One or More Orders Approving the Sale of Such Assets; (III) an Order Approving Settlements Related to Unencumbered Assets and the Pre-Petition Lenders’ Diminution Claims; and (IV) an Order Approving Amendments to Certain Case Milestones in Connection with the DIP Credit Agreement (Docket No. 1464) (the “ Sale Motion ”) seeking to commence a process for the sale of certain of their assets (collectively, the “ Core Assets ”). To
Capitalized terms not otherwise defined herein have the meanings given to them in the Plan (as hereinafter defined).

2



facilitate this process, the lenders under the First Lien Credit Facility (collectively, the “ First Lien Lenders ”) agreed to establish an entity (the “ Stalking Horse Bidder ”) to serve as a stalking horse bidder. By an order entered on March 11, 2016 (Docket No. 1764), the Bankruptcy Court approved, among other things, (a) the procedures for the sale of the Core Assets subject to the Sale Motion and (b) the form of asset purchase agreement supporting the stalking horse bid made by the First Lien Lenders on behalf of the Stalking Horse Bidder (as such agreement may be modified, supplemented or amended, the “ Stalking Horse APA ”). Thereafter, NewCo was incorporated under the laws of the state of Delaware.
5.    On March 7, 2016, the Debtors filed the Joint Plan of Reorganization of Debtors and Debtors in Possession (the “ Initial Plan ”) and a related disclosure statement (Docket No. 1703). On May 25, 2016, the Debtors filed the Plan and related disclosure statement.
6.    References herein to the Debtors shall include the reorganized Debtors following the effective date of the Plan (the “ Effective Date ”).
7.    On February 4, 2016, the UMWA Funds filed their Notice of Appeal (Docket No. 1434), providing notice of their appeal (Case No. 3:16-cv-00075-HEH in the United States District Court for the Eastern District of Virginia) of the Order (I) Authorizing Payments Under 2015 Annual Incentive Bonus Plan and (II) Approving Key Employee Incentive Plan for Certain Insider Employees for 2016 (Docket No. 1387) (the “ KEIP Appeal ”).
8.    On February 19, 2016, the UMWA Funds filed their Objection of the UMWA Health and Retirement Funds to the Debtors’ Omnibus Motion for Entry of: (I) An Order Establishing Bidding and Sale Procedures for the Potential Sale of Certain Mining Properties and Related Assets; (II) One or More Orders Approving the Sale of Such Assets; (III) An Order Approving Settlements Related to Unencumbered Assets and the Pre-Petition Lenders’ Diminution Claims; and (IV) An

3



Order Approving Amendments to Certain Case Milestones in Connection with the DIP Credit Agreement (Docket No. 1588) (the “ UMWA Funds Sale Objection ”).
9.    On April 12, 2016, the Coal Act Funds filed their Motion in the Alternative of the Coal Act Funds for Adequate Protection (Docket No. 2045) (the “ Adequate Protection Motion ”).
10.    On April 15, 2016, the Coal Act Funds filed their Objection of the Coal Act Funds to the Debtors’ Omnibus Motion for Entry of: (I) An Order Establishing Bidding and Sale Procedures for the Potential Sale of Certain Mining Properties and Related Assets; (II) One or More Orders Approving the Sale of Such Assets; (III) An Order Approving Settlements Related to Unencumbered Assets and the Pre-Petition Lenders’ Diminution Claims; and (IV) An Order Approving Amendments to Certain Case Milestones in Connection with the DIP Credit Agreement (Docket No. 2115) (the “ Coal Act Funds Sale Objection ”).
11.    On June 2, 2016, the Coal Act Funds filed their Motion for Reconsideration of the Court’s Section 1114 Order (Docket No. 2595) (the “ Reconsideration Motion ”).
12.    On June 23, 2016, the 1974 Pension Plan filed its Response of the United Mine Workers of America 1974 Pension Plan and Trust to Debtors’ Objection to Claim (Docket No. 2762) (the “ Claim Objection Response ” and, together with the KEIP Appeal, the UMWA Funds Sale Objection, the Adequate Protection Motion, the Coal Act Funds Sale Objection and the Reconsideration Motion and any related objections, responses and replies, the “ Disputed Matters ”).

Decretals
IT IS HEREBY STIPULATED AND AGREED THAT:
1.    The Disputed Matters are RESOLVED as set forth in the UMWA Funds Settlement Term Sheet, attached as Exhibit A hereto.

4



2.    The Parties’ obligations under this Stipulation shall be null and void if:
a.
The Debtors withdraw or expressly determine not to pursue the Plan or any other chapter 11 Plan that is consistent with the UMWA Funds Settlement Term Sheet; or
b.
The Debtors amend or modify the Plan in a manner that is inconsistent with the UMWA Funds Settlement Term Sheet.
3.    It shall be a condition to the occurrence of the Effective Date under the Plan that the Board of Directors of NewCo shall have executed a resolution binding NewCo to the obligations undertaken by NewCo in the UMWA Funds Settlement Term Sheet.
4.    Except as otherwise expressly set forth herein, the Parties reserve and preserve their rights, remedies and defenses.
5.    This Stipulation may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute the same instrument. If the Debtors fail to file a copy of this Stipulation with the Bankruptcy Court by 5:00 p.m. (prevailing Eastern time) on the business day following the execution of this Stipulation by all Parties hereto, the other Parties may file this Stipulation with the Bankruptcy Court.
6.    The Parties agree to and will cooperate fully with each other in the performance of this Stipulation.
7.    This Stipulation shall not be modified except by written instrument executed by the Parties.
8.    The Parties’ undersigned counsel have authority to enter into this Stipulation on the Parties’ behalf.

5



Dated: July 6, 2016
STIPULATED AND AGREED:
 
 /s/ Henry P. (Toby) Long, III
 /s/ Damon P. Meyer
David G. Heiman (admitted pro hac vice )
Carl E. Black (admitted pro hac vice )
Thomas A. Wilson (admitted pro hac vice )
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone: (216) 586-3939
Facsimile: (216) 579-0212
Tyler P. Brown (VSB No. 28072)
J.R. Smith (VSB No. 41913)
Henry P. (Toby) Long, III (VSB No. 75134)
Justin F. Paget (VSB No. 77949)
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
Telephone: (804) 788-8200
Facsimile: (804) 788-8218
ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION
Damian S. Schaible (admitted pro hac vice )
James I. McClammy (admitted pro hac vice )
Damon P. Meyer (admitted pro hac vice )
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
Facsimile: (212) 701-5800
Dion W. Hayes (VSB No. 34304)
Sarah B. Boehm (VSB No. 45201
K. Elizabeth Sieg (VSB No. 77314)
McGUIREWOODS LLP
800 East Canal Street
Richmond, Virginia 23219
Telephone: (804) 775-1000
Facsimile: (804) 775-1061
 
ATTORNEYS FOR THE  
FIRST LIEN AGENT, INCLUDING IN ITS CAPACITY AS SOLE SHAREHOLDER OF NEWCO





 
/s/ Sabin Willett
 
Sabin Willett (admitted pro hac vice )
Julia Frost-Davies (admitted pro hac vice )
MORGAN, LEWIS & BOCKIUS LLP
One Federal Street
Boston, MA 02110-1726
Telephone: (617) 341-7700
Facsimile: (617) 341-7701
- and -
John C. Goodchild, III (admitted pro hac vice )
1701 Market Street
Philadelphia, PA 19103-2921
Telephone: (215) 963-5000
Facsimile: (215) 963-5001
Paul A. Green
John R. Mooney (VSB No. 22212)
MOONEY, GREEN, SAINDON, MURPHY
& WELCH, P.C.
1920 L Street, N.W., Suite 400
Washington, D.C. 20036
Telephone: (202) 783-0010
Facsimile: (202) 783-6088
Karen M. Crowley (VSB No. 35881)
Ann B. Brogan (VSB No. 25567)
CROWLEY, LIBERATORE, RYAN &
BROGAN, P.C.
150 Boush Street, Suite 300
Norfolk, VA 23510
Telephone: (757) 333-4500
Facsimile: (757) 333-4501
ATTORNEYS FOR THE UMWA FUNDS




EXHIBIT A





UMWA FUNDS SETTLEMENT TERM SHEET
This UMWA Funds Settlement Term Sheet (the “ Term Sheet ”) sets forth certain key elements of a proposed resolution of issues in the chapter 11 cases captioned as In re Alpha Natural Resources, Inc., et al. , jointly administered Case No. 15-33896 (KRH) (the “ Bankruptcy Cases ”) pending in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”) by and among the following parties (together, the “ Parties ”): (a) the debtors in possession in the Bankruptcy Cases (collectively, the “ Debtors ”); (b) The United Mine Workers of America 1974 Pension Plan and Trust (the “ 1974 Pension Plan ”), the United Mine Workers of America 1993 Benefit Plan and Trust (the “ 1993 Benefit Plan ”), the United Mine Workers of America 2012 Retiree Bonus Account Plan (the “ Account Plan ”), the United Mine Workers of America Cash Deferred Savings Plan of 1988 (the “CDSP”), the United Mine Workers of America Combined Benefit Fund (the “ Combined Benefit Fund ”), and the United Mine Workers of America 1992 Benefit Plan (the “ 1992 Plan” and, together with the Combined Benefit Fund, the “ Coal Act Funds ”) (the Coal Act Funds, together with the 1974 Pension Plan, the 1993 Benefit Plan, the CDSP, and the Account Plan, the “ UMWA Funds ”); and (c) the First Lien Lenders and First Lien Agent (collectively, the “ First Lien Parties ”); and (d) the DIP Lenders and the DIP Agents (collectively, the “ DIP Parties ”). 2 This Term Sheet includes certain material terms of the proposed settlement.




















Capitalized terms used by not defined herein shall have the meanings ascribed to them in the following, each as applicable: (a) the Final Order (I) Authorizing Debtors (A) to Obtain Post-Petition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 363(b), 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e) and (B) to Utilize Cash Collateral Pursuant to 11 U.S.C. § 363 and (II) Granting Adequate Protection to Pre-Petition Secured Parties Pursuant to 11 U.S.C. §§ 361, 362, 363, 364, and 507(b) (Docket No. 465) (as amended from time to time, the “ Final DIP Order ”); and (b) the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession filed by the Debtors on May 25, 2016 (Docket No. 2527) (the “ Plan ”).




Periodic Payments
Allowed Administrative Expense and Subsequent Periodic Payments from NewCo
▪
The UMWA Funds shall receive an initial distribution of $2.5 million in cash (to be allocated among the UMWA Funds by the UMWA Funds in their discretion) on the Effective Date, pursuant to the order confirming the Debtors’ plan of reorganization or other Bankruptcy Court order entered substantially contemporaneously therewith, as an allowed administrative expense.
▪
Subject to the occurrence of the Effective Date, NewCo shall, pursuant to the order confirming the Debtors’ plan of reorganization or other Bankruptcy Court order entered substantially contemporaneously therewith, make periodic cash payments (to be allocated among the UMWA Funds by the UMWA Funds in their discretion) on the dates and in the amounts listed below:
•      12/31/2017: $500,000
•      12/31/2018: $1 million
•      12/31/2019: $2 million
•      12/31/2020: $2 million
•      12/31/2021: $2 million
Resolution of Certain Objections and other Filings
Other Administrative Expense Claims
▪
Except as set out in this term sheet, none of the UMWA Funds shall assert or be entitled to a claim in the Bankruptcy Cases with administrative or other priority status.
▪
The Response of the United Mine Workers of America 1974 Pension Plan and Trust to Debtors’ Objection to Claim [Docket No. 2762] is withdrawn.
▪
Nothing in this Term Sheet shall affect any general unsecured claim of any of the UMWA Funds.
KEIP Appeal
▪
None of the UMWA Funds shall continue to prosecute their appeal (Case No. 3:16-cv-00075-HEH in the United States District Court for the Eastern District of Virginia) of the Order (I) Authorizing Payments Under 2015 Annual Incentive Bonus Plan and (II) Approving Key Employee Incentive Plan for Certain Insider Employees for 2016 [Docket No. 1387] (the “ KEIP Appeal ”), or pursue or prosecute any related judicial actions or proceedings. The Parties shall take all necessary actions to have the United States District Court for the Eastern District of Virginia hold the KEIP Appeal in abeyance and, upon the Effective Date, to be withdrawn with prejudice.

-2-
 


Sale Objections
▪
The UMWA Funds shall withdraw their Objection of the UMWA Health and Retirement Funds to the Debtors’ Omnibus Motion for Entry of: (I) An Order Establishing Bidding and Sale Procedures for the Potential Sale of Certain Mining Properties and Related Assets; (II) One or More Orders Approving the Sale of Such Assets; (III) An Order Approving Settlements Related to Unencumbered Assets and the Pre-Petition Lenders’ Diminution Claims; and (IV) An Order Approving Amendments to Certain Case Milestones in Connection with the DIP Credit Agreement [Docket No. 1588].
▪
The Coal Act Funds shall withdraw their Objection of the Coal Act Funds to the Debtors’ Omnibus Motion for Entry of: (I) An Order Establishing Bidding and Sale Procedures for the Potential Sale of Certain Mining Properties and Related Assets; (II) One or More Orders Approving the Sale of Such Assets; (III) An Order Approving Settlements Related to Unencumbered Assets and the Pre-Petition Lenders’ Diminution Claims; and (IV) An Order Approving Amendments to Certain Case Milestones in Connection with the DIP Credit Agreement [Docket No. 2115].
▪
The Coal Act Funds shall withdraw their Motion in the Alternative of the Coal Act Funds for Adequate Protection [Docket No. 2045].
▪
None of the UMWA Funds shall pursue any objection to or raise any argument against the sale of the Reserve Price Assets free and clear of claims and encumbrances as contemplated in the Plan or prosecute any claim for or raise any argument that they are entitled to adequate protection with respect to their claims pursuant to section 363(e) of the Bankruptcy Code.
▪
Any other pending objections, responses or reservations of rights of any of the UMWA Funds with respect to relief sought by the Debtors that may be pending, and any supporting memoranda of law, shall be withdrawn.
Motion for Reconsideration
▪
The Coal Act Funds shall withdraw their Motion for Reconsideration of the Court’s Section 1114 Order [Docket No. 2595], and none of the UMWA Funds shall otherwise pursue the relief sought thereby.
Purported Successor Liability Claims
▪
None of the UMWA Funds shall assert or pursue any claims, or support any claims of any other party, alleging that one or more of the Coal Act Funds and/or any other party has one or more claims against any of the First Lien Parties, NewCo, or any affiliate of the foregoing related to any of the Debtors’ existing liabilities under a statutory or common law theory of successor liability or any other theory of liability.
Nature of withdrawal of pleadings
▪
With respect to all actions, objections, responses or reservations of rights, the withdrawal of which is contemplated in this Term Sheet, the UMWA Funds shall cause such objections, responses or reservations of rights to be held in abeyance pending the Effective Date, and shall use best efforts to request the abeyance of such actions pending the Effective Date, and shall cause them to be withdrawn with prejudice by no later than five days after the Effective Date.
Plan Support

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Plan Support
▪
The UMWA Funds shall support the Plan (as it may be modified in accordance with its terms, provided  that any such amendment shall not be inconsistent with this Term Sheet), shall act promptly and in good faith to obtain leave of the Court to change their previous votes to votes in favor of confirmation of the Plan and shall not object to the confirmation of the Plan or support other parties in objecting to the Plan. The UMWA Funds agree to be bound by the terms of the Plan to the extent it is not inconsistent with this Term Sheet.
▪
The Debtors, the Lenders, and the UMWA Funds shall use reasonable best efforts to obtain orders necessary to implement the terms hereof.
Other Matters
Cooperation with Requests
▪
Without limiting any of the agreements set forth herein or the discharge and releases under the Plan and the order confirming the Plan, upon request of the Coal Act Funds, NewCo will reasonably assist with providing information to the Coal Act Funds with respect to related persons under the Coal Act (to the extent permitted under relevant confidentiality agreements or other legal impediments to disclosure), provided  that nothing in this Term Sheet shall require NewCo to incur any expenses related to providing such information.
Temporary Continuation of Certain Obligations
▪
The Debtors will continue to:
•      Maintain their individual employer plans for Coal Act beneficiaries through July 31, 2016 and will cooperate with the UMWA Funds in arranging for an orderly transition of such beneficiaries to the 1992 Plan.
•      Make contractual contributions to the 1974 Pension Plan, the 1993 Benefit Plan, the CDSP and the Account Plan until the date the Debtors implement their rejection of their collective bargaining agreements.


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Exhibit 10.27
EXECUTION VERSION

AGREEMENT TO FUND THE VEBA
This Agreement (the “ Agreement ”) to fund a voluntary employees’ beneficiary association to provide health benefits for certain UMWA-represented retired miners is entered into on July 5th, 2016, by and among Contura Energy, Inc. (“ Employer ”), on behalf of itself and as authorized agent for each of its subsidiaries that is signatory to a 2016 Coal Wage Agreement (as defined below) (hereinafter, the “ Obligor Companies ”) and the United Mine Workers of America (the “ UMWA ,” and collectively with Employer, the “ Parties ”).
WHEREAS, the Obligor Companies have been established by certain First Lien Lenders of Alpha Natural Resources and its affiliated companies (“ First Lien Lenders ”) and have purchased or seek to purchase certain coal mines that have been operated by Alpha Natural Resources and certain of its unionized affiliates (collectively “ Alpha ”) that provide healthcare benefit programs (the “ Retiree Benefits ”) to non-Coal Industry Retiree Health Benefit Act of 1992, 26 USC § 9701 et seq., as amended (“ Coal Act ”) UMWA-represented retirees and their eligible dependents, including surviving spouses (collectively, the “ UMWA Retirees ”) pursuant to the welfare benefit plan maintained pursuant to the National Bituminous Coal Wage Agreement of 2011 (the “ NBCWA Plan ”);
WHEREAS, on August 3, 2015, Alpha filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code (the “ Bankruptcy Code ”), which are pending as joint administration under Case No. 15-33896 (the “ Chapter 11 Cases ”) before the Honorable Judge Kevin R. Huennekens in the United States Bankruptcy Court for the Eastern District of Virginia (the “ Bankruptcy Court ”);
WHEREAS, on March 28, 2016, Alpha filed the Motion of Debtors and Debtors in Possession to (I) Reject Certain Collective Bargaining Agreements and (II) Modify Certain Retiree Benefit Obligations, Pursuant to Sections 1113(c) and 1114(g) of the Bankruptcy Code [ECF No. 1873] (the “ 1113/1114 Motion ”), which, inter alia, sought approval to terminate the Retiree Benefits and was subsequently granted on May 9, 2016 [ECF No. 2357];
WHEREAS, representatives of Alpha, the Obligor Companies and the UMWA have met and engaged in negotiations pursuant to section 1114 of the Bankruptcy Code both prior to and following the filing of the 1113/1114 Motion in an attempt to reach a mutually acceptable resolution regarding the Retiree Benefits, including by exchanging settlement proposals and counter-proposals;
WHEREAS, after extensive negotiations between the Parties, the Parties have reached agreement regarding the funding of the VEBA (as defined below) and related terms as set forth herein and in the new labor contracts by and between the UMWA and the applicable Obligor Debtors (the “ 2016 Wage Agreement(s) ”) and the related Memorandum of Understanding (the “ MOU ”);
WHEREAS, the Parties have agreed that there shall be not be any gaps in benefits and coverage provided to the UMWA Retirees; and





WHEREAS, the UMWA has established a voluntary employees’ beneficiary association trust within the meaning of section 501(c)(9) of the Tax Code (as defined below) (the “ VEBA ”) in order to fund and administer certain Retiree Benefits.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL COVENANTS SET FORTH HEREIN, THE PARTIES AGREE AS FOLLOWS:
1.     Court Approvals
All provisions of this Agreement are subject to: (i) the entry of an order by the Bankruptcy Court (the “ Approval Order ”) approving the sale of the Core Assets to Employer, this Agreement, the Memorandum of Understanding on Transition to New Labor Agreements, and the Agreement to Mine the Foundation Reserves Under the Terms of the 2016 Agreement, and authorizing the Obligor Companies to enter into and perform their obligations hereunder and thereunder, (ii) such Approval Order becoming final and not subject to further appeal or reconsideration (except to the extent the final order requirement is waived in accordance with the terms of Alpha’s confirmed Third Amended Joint Plan of Reorganization (as such Plan may be amended or modified, the “ Plan ”)) (the terms set forth in (i) and (ii) being, collectively, the “ Court Approvals ”), and (iii) the transactions approved in the Approval Order having closed according to the terms of the governing agreements. The “ Effective Date ” shall be the Plan Effective Date (meaning the Effective Date as defined in the Plan), but in the event the Effective Date shall not have occurred by August 1, 2016, this Agreement shall be void ab initio , having no effect with the Parties reserving all of their rights and defenses.
2.     VEBA Funding Amount
a.    Subject to the occurrence of the Effective Date, the Obligor Companies shall contribute the following to the VEBA (collectively, the “ VEBA Funding Amount ”):
i.    On or before the Effective Date, the Obligor Companies shall transfer or cause to be transferred $50,000 to the VEBA using wire instructions provided by the UMWA.
ii.    On or before the Effective Date, the Obligor Companies shall transfer or cause to be transferred $9,950,000 to the VEBA using wire instructions provided by the UMWA.
iii.    Beginning on November 1, 2016 and again on the first of each month through April 1, 2017, the Obligor Companies shall transmit $3 million to the VEBA (a total of $18 million in six (6) monthly payments of $3 million each) using wire instructions provided by the UMWA. Notwithstanding the foregoing, in order to prevent any gap in benefits, in the event that the Trustees of the VEBA certify in writing to the Obligor Companies that the VEBA’s assets available to provide benefits to the UMWA Retirees are inadequate for the VEBA’s immediate cash requirements, the amounts payable pursuant to this paragraph shall become

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payable up to 60 days prior to the dates they would otherwise be due, as determined by the Trustees in their absolute discretion.
iv.    On or before November 15, 2016, the Obligor Companies shall transmit $300,000 to the VEBA using wire instructions provided by the UMWA.
v.    On or before February 15, 2017, the Obligor Companies shall transmit $300,000 to the VEBA using wire instructions provided by the UMWA.
vi.    If federal legislation providing retirement health benefits to the UMWA Retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, before August 1, 2017, on August 1, 2017, the Obligor Companies shall transfer or cause to be transferred to the VEBA a 7-year 5.0% unsecured note with face value of $8.75 million. The maturity of such note shall be seven (7) years from the date of issuance and the note will be subordinate to a cumulative total of $300.0 million of takeback debt in favor of one or more First Lien Lenders and the new ABL facility obtained by the Obligor Companies on or prior to the Effective Date, but superior to all other existing and future unsecured obligations. The Trustees of the VEBA, in their sole discretion, may freely sell, exchange, assign or otherwise transfer such note.
vii.    If federal legislation providing retirement health benefits to the UMWA Retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, before December 1, 2017, on December 1, 2017, the Obligor Companies shall transfer or cause to be transferred to the VEBA an additional 7-year 5.O% unsecured note with face value of $8.75 million. The maturity of such note shall be seven (7) years from the date of issuance and the note will be subordinate to a cumulative total of $300.0 million of takeback debt in favor of one or more First Lien Lenders and the new ABL facility obtained by the Obligor Companies on or prior to the Effective Date and will be superior to all other existing and future unsecured obligations. The Trustees of the VEBA, in their sole discretion, may freely sell, exchange, assign or otherwise transfer such note.
3.     NBCWA Plan . Alpha shall continue to maintain the NBCWA Plan to cover all claims incurred by UMWA Retirees (including any subsequent runout) through and including the later of July 31, 2016 or the Effective Date.
4.     Legislative Support . The Parties each agree that they will mutually and actively support the enactment of legislation introduced as S. 1714 (114 th Congress), the Miners Protection Act. The parties each agree that they will mutually and actively support modified versions of this legislation or substitute legislation designed to address the problems of retiree health and pension benefits in the coal industry, including those resulting from the Alpha bankruptcy. Active support shall include but not be limited to lobbying, public statements of strong support, and cooperative efforts with the other entities to aggressively further the likelihood of passage of such legislation.

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5.     Termination . The UMWA may terminate this Agreement if (i) the full amounts to be transferred pursuant to Section 2(a) are not received by the VEBA on or before the dates specified therein, or (ii) an order of the Bankruptcy Court modifies or purports to modify in any way the preceding Section 2.
6.     Coal Act Coal Wage Agreement . The parties agree that this Agreement is not intended to be and shall not be construed to be a “Coal wage agreement” as defined in the Coal Act and that this Agreement does not require Employer to ensure and that Employer is not ensuring or otherwise providing any entitlement to or benefits under the Coal Act.
7.     No Admissions . This Agreement was entered into in the context of a settlement. Nothing contained herein or in any draft hereof shall constitute an admission of liability or lack thereof by the Parties, or shall be admissible as evidence in any court of law or other legal proceeding for any purpose, other than for the purpose of enforcing the Agreement. Each Party acknowledges and agrees that nothing in this Agreement constitutes a concession of any factual or legal issue raised in or relating to the 1113/1114 Motion, the KEIP Appeal or any claim filed in these Chapter 11 Cases.
8.     Governing Law . This Agreement shall be governed by, and construed in accordance with, applicable federal law.
9.     Reservation of Rights . If the Approval Order is reversed, revoked or vacated, all Parties’ rights under the law are reserved as if this Agreement were never entered into.
10.     No Third-Party Beneficiaries . Except as expressly provided for herein, nothing in this Agreement is intended to confer upon any person any right as a third-party beneficiary of the terms of this Agreement. No provision of this Agreement will (i) create or be deemed to create any third-party beneficiary or other rights in any UMWA Retiree or any other entity other than the Parties and their respective successors, permitted assigns and the officers, directors, employees, agents and affiliated persons of each of the foregoing or (ii) create any new health or welfare plans for the benefit of any UMWA Retiree or their respective beneficiaries, heirs, successors, assigns or the officers, directors, employees, agents and affiliated persons of each of the foregoing. Notwithstanding the forgoing, for purposes of Sections 502 and 515 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1132, 1145, and Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, the Trustees of the VEBA shall have the authority to enforce this agreement in the same manner as a collectively bargained obligation owed to a multiemployer plan with all the appropriate rights and remedies, as well as under any other applicable provision of law.
11.     Manner of Execution . The Parties may execute this Agreement in counterparts, and all executed counterparts shall collectively be deemed to be one and the same instrument, and the Parties may exchange signature pages via mail, courier, facsimile or email.
12.     Interpretation . This Agreement is the product of negotiations between the Parties, and in the enforcement or interpretation hereof, is to be interpreted in a neutral

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manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be effective in regard to the interpretation hereof.
13.     Tax Consequences . The Parties do not make any representations or warranties regarding any tax benefits, tax obligations and/or other consequences arising from this Agreement or any payments made pursuant hereto, and the recipients of any payment pursuant to this Agreement shall be solely responsible for any taxes in respect of any payments made pursuant to this Agreement.
14.     Specific Performance . Damages at law may be an inadequate remedy, or not available, for the breach by the Obligor Companies, Alpha, or the UMWA or the VEBA, of any of the covenants, promises and agreements contained in this Agreement, and, accordingly, each of them, as applicable, shall be entitled to specific performance with respect to any such breach. In particular, time is of the utmost essence with regard to the payments required herein, and the Parties agree that failure to make any payment on a timely basis will result in irreparable harm and will be subject to injunctive relief. Any action for legal or equitable relief under this Agreement may be brought in the United States District Court for the Western District of Pennsylvania. The rights of the Obligor Companies, Alpha, the UMWA, and the VEBA set forth in this Section 14 shall be in addition to any other rights which a party may have at law or in equity pursuant to this Agreement.
15.     Assignment . No Party to this Agreement may assign any of its rights hereunder without the prior written consent of the other Parties, except as set forth in this Agreement or as otherwise required by law, and any purported assignment in violation of this sentence shall be void.
16.     Successors . The Parties acknowledge that each and every covenant, warranty, release and agreement contained herein shall inure to the benefit of, and be binding upon, the Parties’ permitted assigns and successors in interest and the officers, directors, employees, agents and affiliated persons of each of the foregoing.
17.     Modification . This Agreement may not be altered, amended, abandoned, modified, waived, superseded, canceled or discharged, except by a further writing subscribed to by the Parties.

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So Agreed:
/s/ Grant Crandall
Grant Crandall, General Counsel
United Mine Workers of America
 
 
CONTURA ENERGY, INC.
 
/s/ John DeGroote
John DeGroote
President of Contura Energy, Inc.



Exhibit 10.28


CONTURA ENERGY, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this " Agreement ") is made as of July 26 , 2016, by and between Contura Energy, Inc., a Delaware corporation (the " Company "), and ______________ (the " Indemnitee ").
RECITALS:
A. It is essential that the Company retain and attract as directors and officers the most capable persons available.
B. The Indemnitee is (or is being elected or appointed as) a director and/or officer of the Company and in that capacity is (or will be) performing a valuable service for the Company.
C. The Company's Amended and Restated Certificate of Incorporation (the " Certificate of Incorporation ") contain a provision which provides for indemnification of and advancement of expenses to the directors and officers of the Company for liabilities and expenses they incur in their capacities as such, and the Certificate of Incorporation and Section 145 of the General Corporation Law of the State of Delaware (" DGCL ") provide that they are not exclusive of any other rights to indemnification and advancement of expenses.
D. In recognition of Indemnitee's need for protection against personal liability in order to enhance Indemnitee's service and continued service to the Company in an effective manner, the potential difficulty in obtaining satisfactory Directors and Officers Liability Insurance (" D&O Insurance ") coverage, and Indemnitee's reliance on the Certificate of Incorporation, and in part to provide Indemnitee with specific contractual assurance that the protection promised by the Certificate of Incorporation will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of the Certificate of Incorporation or any change in the composition of the Company's Board of Directors or acquisition transaction relating to the Company), the Company desires to provide in this Agreement for the indemnification of and the advancing of expenses to Indemnitee to the fullest extent permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company's D&O Insurance policies.
E. The Indemnitee is willing to serve and/or to continue to serve, the Company, only on the condition that the Company furnish the indemnity provided for herein.
NOW, THEREFORE, in consideration of Indemnitee's service and/or continuing to serve the Company directly, or, at its request, another enterprise and intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions .
(a)       A " Change in Control " shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:     


    


(i)    any merger, consolidation or business combination in which the stockholders of the Company immediately prior to the merger, consolidation or business combination do not own at least a majority of the outstanding equity interests of the surviving parent entity;
(ii)    the sale of all or substantially all of the Company’s assets in a single transaction or a series of related transactions;
(iii)    the acquisition of beneficial ownership or control of (including, without limitation, power to vote) a majority of the outstanding common stock of the Company by any person or entity (including a "group" as defined by or under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended);
(iv)    the stockholders of the Company approve any plan for the dissolution or liquidation of the Company; or
(v)    a contested election of directors, as a result of which or in connection with which the persons who were directors of the Company before such election or their nominees cease to constitute a majority of the Company’s Board.
(b)      " Corporate Status " describes the status of a person who is or was a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company.
(c)      " Disinterested Director " means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(d)      " Expenses " include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or their equivalent, and (ii) for purposes of Section 12(d), Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee's rights under this Agreement or under any D&O Insurance policies maintained by the Company. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(e)      " Independent Counsel " means a law firm, or a partner or member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than as Independent Counsel with respect to matters concerning Indemnitee under this Agreement or as Independent Counsel with respect to matters concerning other indemnitees under other indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee's rights under this Agreement.

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(f)      " Interested Stockholder " means any person (other than the Company or any subsidiary of the Company and other than any profit sharing, employee stock ownership, or other employee benefit plan of the Company or any subsidiary of the Company or any trustee of or fiduciary with respect to any such plan when acting in such capacity) who or which:
(i)      is at such time the beneficial owner, directly or indirectly, of more then fifteen percent (15%) of the voting power of the outstanding common stock of the Company;
(ii)      was at any time within the two-year period immediately prior to such time the beneficial owner, directly or indirectly, of more than fifteen percent (15%) of the voting power of the then outstanding common stock of the Company; or
(iii)      is at such time an assignee of or has otherwise succeeded to the beneficial ownership of any shares of common stock of the Company which were at any time within the two-year period immediately prior to such time beneficially owned by any Interested Stockholder, if such assignment or succession has occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933, as amended.
(g)      A " Potential Change of Control " shall occur if:
(i)      the Company enters into an agreement or arrangement the consummation of which would result in the occurrence of a Change in Control;
(ii)      any Person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control; or 
(iii)      the Board of Directors of the Company adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change of Control has occurred.
(h)      " Proceeding " means any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including any appeal therefrom and including without limitation any such Proceeding pending as of the date of this Agreement, in which Indemnitee was, is or will be involved as a party, a potential party, a non-party witness or otherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the Company, (ii) any action taken by Indemnitee or any action or inaction on Indemnitee's part while acting as a director or officer of the Company, or (iii) the fact that Indemnitee is or was serving at the request of the Company as a director, officer or trustee of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification or advancement of expenses can be provided under this Agreement.
(i)      " Unaffiliated Director " means any member of the Board of Directors of the Company who is unaffiliated with, and not a representative of, an Interested Stockholder and who was a member of the Board of Directors prior to the time that the Interested Stockholder became an Interested Stockholder or became a member subsequently to fill a vacancy created by an increase in the size of the Board of Directors and did receive the favorable vote of two-thirds (2/3) of the Unaffiliated Directors in connection with being nominated for election by the stockholders to fill such vacancy or in being elected by the Board of Directors to fill such vacancy, and any successor of an Unaffiliated Director who is unaffiliated

3


with, and not a representative of, the Interested Stockholder and is recommended or elected to succeed an Unaffiliated Director by a majority of the Unaffiliated Directors then on the Board of Directors.
Reference to " other enterprises " shall include employee benefit plans and administrative committees thereof; references to " fines " shall include any excise taxes assessed on a person with respect to any employee benefit plan; references to " serving at the request of the Company " shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; a person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner " not opposed to the best interests of the Company " as referred to in this Agreement; references to " to the fullest extent permitted by applicable law " shall include, but not be limited to: (i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL and (ii) the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.
2.      Indemnity in Third-Party Proceedings . The Company shall indemnify Indemnitee in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
3.      Indemnity in Proceedings by or in the Right of the Company . The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 3 in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery or such other court shall deem proper.
4.      Indemnification for Expenses of a Party Who is Wholly or Partly Successful . To the extent that Indemnitee is a party to or a participant in and is successful (on the merits or otherwise) in defense of any Proceeding or any claim, issue or matter therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith. To the extent permitted by applicable law, if Indemnitee is not wholly successful in such

4


Proceeding but is successful, on the merits or otherwise, in defense of one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
5.      Indemnification for Expenses of a Witness . Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason of his or her Corporate Status, is to be a witness or to be interviewed in any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith.
6.      Additional Indemnification . In the event that applicable law permits indemnification in addition to the indemnification provided in Sections 2, 3 and 4, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection with the Proceeding or any claim, issue or matter therein. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Company’s Amended and Restated Certificate of Incorporation and Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change, subject to the restrictions expressly set forth herein or therein. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such Expenses to which the Indemnitee is entitled.
7.      Contribution . To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee, then in respect of any actual or threatened proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such proceeding) the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be paid in settlement, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and transaction(s) giving rise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company (and its other directors, officers, employees and agents) in connection with such event(s) and transaction(s).
8.      Notification and Defense of Claim .
(a)      Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. The written notification to the Company shall include a description of the nature of the Proceeding and the facts underlying the Proceeding. The failure by Indemnitee to notify the Company will not relieve the Company from any liability which it may

5


have to Indemnitee hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights. With respect to any Proceeding as to which the Indemnitee has so notified the Company:  
(i)      The Company will be entitled to participate therein at its own expense; and
(ii)      Except as otherwise provided below, the Company may assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After the Company notifies the Indemnitee of its election to so assume the defense, the Company will not be liable to the Indemnitee under this Agreement for any legal Expenses subsequently incurred by the Indemnitee in connection with the defense, other than legal Expenses relating to the reasonable costs of investigation, including an investigation in connection with determining whether there exists a conflict of interest of the type described in clause (B) of this paragraph, or as otherwise provided in this paragraph. The Indemnitee shall have the right to employ his or her counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after the Company notifies the Indemnitee of its assumption of the defense shall be at the expense of the Indemnitee unless (A) the Company authorizes the Indemnitee's employment of counsel, provided, that following a Change in Control, the Indemnitee shall be entitled to employ his or her own counsel at the Company's expense after giving not less than 30 days' notice to the Company unless the Company has Unaffiliated Directors and a majority of the Unaffiliated Directors determine that the Indemnitee's interests are adequately represented by the counsel employed by the Company; (B) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense or (C) the Company shall not have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which the Indemnitee shall have made the conclusion described in clause (B) of this paragraph. 
(b)      The Company shall not be obligated to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without its written consent. The Company shall not settle any action or claim in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee's written consent. Neither the Company nor the Indemnitee shall unreasonably withhold their consent to any proposed settlement.
9.      Procedure for Indemnification .
(a)      To obtain indemnification, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the Board of Directors that Indemnitee has requested indemnification.
(b)      Upon written request by Indemnitee for indemnification pursuant to Section 9(a), a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Company's Board of Directors, a copy of which shall be delivered to Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Company's Board of Directors, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than

6


a quorum of the Company's Board of Directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Company's Board of Directors, a copy of which shall be delivered to Indemnitee or (D) if so directed by the Company's Board of Directors, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within sixty (60) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys' fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company, to the extent permitted by applicable law.
(c)      In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 9(b), the Independent Counsel shall be selected as provided in this Section 9(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Company's Board of Directors, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Company's Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided , however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 9(a) hereof and (ii) the final disposition of the Proceeding, the parties have not agreed upon an Independent Counsel, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 9(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, the Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing),
(d)      The Company agrees to pay the reasonable fees and expenses of any Independent Counsel and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
10.      Advancement of Expenses; Procedure for Advances . The Company shall advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding. Advances shall be unsecured and interest free and made without regard to Indemnitee's ability to repay

7


such advances. Indemnitee hereby undertakes to repay any advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. To obtain advances of Expenses, Indemnitee shall submit from time to time to the Company a written request requesting such advances and shall provide copies of invoices received by Indemnitee in connection with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditure made that Indemnitee's lawyers believe would likely cause Indemnitee to waive any privilege accorded by applicable law may be redacted from the copy of the invoice submitted to the Company (in which case, Indemnitee shall also submit a letter addressed to the Company from such lawyers to the effect that they believe submission of the redacted information would likely cause Indemnitee to waive a privilege accorded by applicable law). Upon receipt of a such a request for an advance of Expenses along with copies of the related invoices (and, if applicable, a letter from Indemnitee's lawyers with respect to redactions on the legal invoice(s)), Company shall advance the Expenses to Indemnitee as soon as reasonably practicable, but in any event no later than twenty (20) days, after such receipt by the Company. This Section 10 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 16 of this Agreement.
11.      Maintenance of Insurance; Funding .
(a)      The Company represents that a summary of the terms of the D&O Insurance in effect as of the date of this Agreement is attached hereto as Exhibit A (the " Insurance Policies "). Subject only to the provisions of Section 11(b) hereof, the Company agrees that, so long as Indemnitee shall continue to serve as an officer or director of the Company (or shall continue at the request of the Company to serve as a director, officer, employee, trustee or representative of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan) and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that Indemnitee was a director or officer of the Company (or served in any of said other capacities), the Company shall purchase and maintain in effect for the benefit of Indemnitee one or more valid, binding and enforceable policy or policies of D&O Insurance providing coverage at least comparable to that provided pursuant to the Insurance Policies.
(b)      The Company shall not be required to maintain said policy or policies of D&O Insurance in effect if, in the reasonable, good faith business judgment of the then Board of Directors of the Company (i) the premium cost for such insurance is substantially disproportionate to the amount of coverage, (ii) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance or (iii) said insurance is not otherwise reasonably available; provided, however, that in the event the then Board of Directors makes such a judgment, the Company shall purchase and maintain in force a policy or policies of D&O Insurance in the amount and with such coverage as the then Board of Directors determines to be reasonably available.  Notwithstanding the general provisions of this Section 11(b), following a Change in Control, any decision not to maintain any policy or policies of D&O Insurance or to reduce the amount or coverage under any such policy or policies shall be effective only if there are Unaffiliated Directors (as defined in Section 1(i) hereof) and shall require the concurrence of a majority of the Unaffiliated Directors.
(c)      If and to the extent the Company, acting under Section 11(b), does not purchase and maintain in effect the policy or policies of D&O Insurance described in Section 11(a), the Company shall indemnify and hold harmless the Indemnitee to the full extent of the coverage which would otherwise have been provided by such policies.  The rights of the Indemnitee hereunder shall be in addition to all other rights of Indemnitee under the remaining provisions of this Agreement.

8


(d)      In the event of a Potential Change of Control and if and to the extent the Company is not required to maintain in effect the policy or policies of D&O Insurance described in Section 11(a) pursuant to the provisions of Section 11(b), the Company shall, upon written request of Indemnitee, create a "Trust" for the benefit of Indemnitee, and from time to time, upon written request by Indemnitee, shall fund such Trust in an amount sufficient to pay any and all Expenses and any and all liability and loss, including judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement actually and reasonably incurred by him or on his behalf for which the Indemnitee is entitled to indemnification or with respect to which indemnification is claimed, reasonably anticipated or proposed to be paid in accordance with the terms of this Agreement or otherwise; provided that in no event shall more than $100,000 be required to be deposited in any Trust created hereunder in excess of the amounts deposited in respect of reasonably anticipated Expenses.  The amounts to be deposited in the Trust pursuant to the foregoing funding obligation shall be determined by a majority of the Unaffiliated Directors whose determination shall be final and conclusive.  At all times the Trust shall remain as an asset of the Company and subject to the claims of the Company's creditors.
The terms of the Trust shall provide that upon a Change in Control (i) the Trust shall not be revoked or the principal thereof invaded, without the written consent of the Indemnitee except as set forth in the preceding paragraph, (ii) the procedures set forth in Section 10 regarding advancement of expenses with respect to the Company shall apply to the Trust, (iii) the Trust shall continue to be funded by the Company in accordance with the funding obligation set forth above (and in the event that there are no Unaffiliated Directors, the decision regarding the amount to fund shall be made by Independent Counsel selected as provided in Section 9(c)), (iv) the Trustee shall promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (v) all unexpended funds in such Trust shall revert to the Company upon a final determination by a majority of the Unaffiliated Directors or by Independent Counsel or a court of competent jurisdiction, as the case may be, that the Indemnitee has been fully indemnified under the terms of this Agreement.  The Trustee shall be a bank or trust company or other individual or entity chosen by the Indemnitee and reasonably acceptable and approved of by the Company.

12.      Remedies of Indemnitee .
(a)      Subject to Section 12(d), in the event that (i) a determination is made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 10 or 12(d) of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 9 of this Agreement within ninety (90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification pursuant to this Agreement is not made (A) within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or (B) with respect to indemnification pursuant to Sections 4, 5 or 12(d) of this Agreement, within thirty (30) days after receipt by the Company of a written request therefor, or (v) the Company or any other person or entity takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by the Delaware Court of Chancery of Indemnitee's right to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The Company shall not oppose Indemnitee's right to seek any such adjudication or award in arbitration in accordance with this Agreement.

9


(b)      The failure of the Company, its Board of Directors, any committee or subgroup of the Board of Directors, Independent Counsel or stockholders to have made a determination that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct shall not be a defense to the action or create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the event that a determination shall have been made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall, to the fullest extent not prohibited by law, have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.
(c)      To the fullest extent not prohibited by law, the Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. If a determination shall have been made pursuant to Section 9 of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statements not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d)      The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later than sixty (60) days, after receipt by the Company of a written request therefor) advance such Expenses to Indemnitee, that are incurred by Indemnitee in connection with any action for indemnification or advancement of Expenses from the Company under this Agreement or under any directors' and officers' liability insurance policies maintained by the Company, to the extent Indemnitee is successful in such action and to the extent not prohibited by law.
(e)      Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification shall be required to be made prior to the final disposition of the Proceeding.
13.      Presumptions and Effect of Certain Proceedings .
(a)      In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9 of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by such person, persons or entity of any determination contrary to that presumption.
(b)      The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which

10


he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(c)      For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account of the Company, including financial statements, (ii) information supplied to Indemnitee by the officers of the Company in the course of their duties, (iii) the advice of legal counsel for the Company or its Board of Directors or counsel selected by any committee of the Board of Directors or (iv) information or records given or reports made to the Company by an independent certified public accountant, an appraiser, investment banker or other expert selected with reasonable care by the Company or its Board of Directors or any committee of the Board of Directors. The provisions of this Section 13(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d)      Neither the knowledge, actions nor failure to act of any other director, officer, agent or employee of the Company shall be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
14.      Subrogation; No Duplication of Payments . In the event that the Company pays any Expenses under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received payment from a third party for such amounts under any insurance policy, contract, agreement or otherwise; provided, however, that if the Indemnitee repays any of these payments to such third party (whether due to a reservation of rights or otherwise), the Company shall again be obligated to Indemnitee under this Agreement with respect to such payments.
15.      Services to Company . Indemnitee agrees to serve as a director or officer of the Company for so long as Indemnitee is duly elected or appointed or until Indemnitee tenders his or her resignation. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries) and Indemnitee. Indemnitee specifically acknowledges that any employment with the Company (or any of its subsidiaries) is at will, and Indemnitee may be discharged at any time for any reason, with or without cause, with or without notice, except as may be otherwise expressly provided in any executed, written employment contract between Indemnitee and the Company (or any of its subsidiaries), any existing formal severance policies adopted by the Company's Board of Directors or, with respect to service as a director or officer of the Company, the Company's Certificate of Incorporation or Bylaws or the DGCL.
16.      Exclusions . Notwithstanding the foregoing, the Company shall not be liable under this Agreement to pay any Expenses in connection with any Proceeding:
(a)      for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the " Sarbanes-Oxley Act "), or the payment to the

11


Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements);
(b)      for a disgorgement of profits made from the purchase and sale by the Indemnitee of securities pursuant to Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any state statutory law or common law;
(c)      initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees, agents or other indemnitees, unless (i) the Company's Board of Directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (ii) otherwise authorized in Section 12(d) or (iii) otherwise required by applicable law; or
(d)      if prohibited by applicable law.
17.      Amendments . The entitlement to payment hereunder of an Indemnitee shall not be affected or diminished by any amendment, termination or repeal of the General Corporation Law of the State of Delaware or the Certificate of Incorporation of the Company with respect to any Proceeding arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of any such amendment, termination or repeal. This Agreement may not be modified or altered except by a formal writing signed by both parties that specifically refers to this Agreement.
18.      Counterparts . This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one instrument.
19.      Indemnification Hereunder Not Exclusive . Nothing herein shall be deemed to diminish or otherwise restrict the Indemnitee's right to indemnification under any provision of the Certificate of Incorporation or the Bylaws of the Company and amendments thereto or under law. Except as expressly set forth herein, no right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy. It is the intention of the parties in entering into this Agreement that the insurers under any D&O Insurance policy shall be obligated ultimately to pay any claims by Indemnitee which are covered by such policy and not to give such insurers any rights against the Company under or with respect to this Agreement, including, without limitation, any right to be subrogated to any of Indemnitee's rights hereunder, unless otherwise expressly agreed to by the Company in writing, and the obligation of such insurers to the Company or Indemnitee shall not be deemed reduced or impaired in any respect by virtue of the provisions of this Agreement.
20.      Governing Law . This Agreement shall be governed by and construed in accordance with Delaware law.
21.      Saving Clause . Wherever there is conflict between any provision of this Agreement and any applicable present or future statute, law or regulation contrary to which the Company and the Indemnitee have no legal right to contract, the latter shall prevail but (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself

12


invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby but in such event the affected provisions of this Agreement shall be curtailed and restricted only to the extent necessary to bring them within applicable legal requirements.
22.      Coverage; Continuation of Indemnity . The provisions of this Agreement shall apply with respect to the Indemnitee's service as a Director or officer of the Company prior to the date of this Agreement (if any) and with respect to all periods of such service after the date of this Agreement, even though the Indemnitee may have ceased to be a Director or officer of the Company and shall inure to the benefit of the heirs, executors and administrators of Indemnitee. To the extent Indemnitee served as an officer or director of Alpha Natural Resources, Inc., a predecessor of the Company, the provisions of this Agreement shall also apply with respect to the time period that Indemnitee served as an officer or director of Alpha Natural Resources, Inc. All agreements and obligations of the Company contained in this Agreement shall continue during the period the Indemnitee is a director or officer of the Company (or is or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust, limited liability company or other enterprise and shall continue thereafter so long as the Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that the Indemnitee was a director or officer of the Company or serving in any other capacity referred to herein.
23.      Successors . This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company, and shall inure to the benefit of Indemnitee and Indemnitee's heirs, executors and administrators. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
24.      Miscellaneous .
(a)      Notwithstanding Section 17, the Company may amend this Agreement from time to time without Indemnitee's consent to the extent deemed necessary or appropriate, in its sole discretion, to effect compliance with Section 409A of the Internal Revenue Code, including regulations and interpretations thereunder, which amendments may result in a reduction of benefits provided hereunder and/or other unfavorable changes to Indemnitee.
(b)      This Agreement is intended to provide for the indemnification of, and/or purchase of insurance policies providing for payments of, expenses and damages incurred with respect to bona fide claims against the Indemnitee, as a service provider, or the Company, as the service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10), pursuant to which the Agreement shall not provide for the deferral of compensation.  The Agreement shall be construed consistently, and limited in accordance with, the provisions of such regulation.

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[remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and signed as of the day and year first above written.
CONTURA ENERGY, INC.
 
 
 
 
By:
 
Name:
 
Title:
 
 
 
 
 
 
 
INDEMNITEE
 
 
 
 
 
 
Name:
 


15
Exhibit 10.29

WARRANT AGREEMENT
Dated as of
July 26, 2016
between
CONTURA ENERGY, INC.
and
COMPUTERSHARE INC.
and
COMPUTERSHARE TRUST COMPANY, N.A.
Collectively, as Warrant Agent
For 810,811 Series A Warrants


    



Table of Contents
Page
ARTICLE I
 
DEFINITIONS
 
Section 1.01. Definitions
1
Section 1.02. Other Definitions.
3
Section 1.03. Rules of Construction.
3
ARTICLE II
 
WARRANTS
 
Section 2.01. Form
3
Section 2.02. Execution and Countersignature.
5
Section 2.03. Registry.
5
Section 2.04. Transfer and Exchange.
6
Section 2.05. Definitive Warrants
8
Section 2.06. Replacement Certificates.
9
Section 2.07. Outstanding Warrants.
9
Section 2.08. Cancellation.
10
Section 2.09. CUSIP Numbers
10
Section 2.10. Withholding and Reporting Requirements.
10
Section 2.11. Proxies
10
ARTICLE III
 
EXERCISE TERMS
 
Section 3.01. Exercise.
11
Section 3.02. Manner of Exercise and Issuance of Shares.
11
Section 3.03. Covenants Relating to Common Stock Issuable Upon Warrant Exercise.
11
Section 3.04. Exercise Calculations.
11
Section 3.05. Delivery of Exercise Price.
12
Section 3.06. Cash in Lieu of Fractional Shares.
12
Section 3.07. Cost Basis Information.
12
ARTICLE IV ANTIDILUTION PROVISIONS
 
Section 4.01. Antidilution Adjustments; Notice of Adjustment.
12
Section 4.02. Adjustment to Warrant Certificate.
12
ARTICLE V
 
WARRANT AGENT
 
Section 5.01. Appointment of Warrant Agent.
13
Section 5.02. Rights and Duties of Warrant Agent.
13
Section 5.03. Individual Rights of Warrant Agent.
15
Section 5.04. Warrant Agent’s Disclaimer.
15
Section 5.05. Compensation and Indemnity.
15
Section 5.06. Successor Warrant Agent.
16

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Section 5.07. Representations of the Company.
18
ARTICLE VI
 
MISCELLANEOUS
 
Section 6.01. Persons Benefitting.
18
Section 6.02. Amendment
19
Section 6.03. Notices.
20
Section 6.04. Governing Law.
21
Section 6.05. Successors.
21
Section 6.06. Multiple Originals; Counterparts.
21
Section 6.07. Inspection of Agreement.
21
Section 6.08. Table of Contents.
21
Section 6.09. Severability.
21
Section 6.10. Customer Identification Program
21
Section 6.11. Confidentiality.
22
Section 6.12. Force Majeure.
22

EXHIBIT A    Form of Series A Warrant

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This WARRANT AGREEMENT is dated as of July 26, 2016 (this “Agreement”), among Contura Energy, Inc., a Delaware corporation (the “Company”), and Computershare Inc. (“Computershare”) and Computershare Trust Company, N.A., collectively as Warrant Agent (collectively, the “Warrant Agent”). All terms used but not defined in this Agreement shall have the respective meanings assigned to them in the form of Warrant Certificate attached to this Agreement as Exhibit A.
Pursuant to the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as confirmed by the Bankruptcy Court on July 12, 2016 , the Company hereby issues warrants (the “Warrants”) to purchase initially 810,811 shares of common stock, $0.01 par value per share (the “Common Stock”), of the Company.
The Warrants will be substantially in the form attached hereto as Exhibit A.
Each Warrant entitles the registered holder thereof (the “Holder”) to receive, upon exercise thereof, a number of shares of Common Stock determined by the provisions of the relevant Warrant Certificate. Each Warrant Certificate (including any Global Warrant) shall evidence such number of Warrants as is set forth therein, subject to adjustment pursuant to the provisions of the Warrant Certificate.
The Warrants and the shares of Common Stock issuable upon exercise of the Warrants will be freely transferable by Holders that are not Affiliates of the Company, subject to any applicable restrictions in the relevant Warrant Certificate. The Company desires the Warrant Agent to act on behalf of the Company in connection with the registration, transfer, exchange, exercise and cancellation of the Warrants as provided in this Agreement and the Warrant Certificates, and the Warrant Agent is willing to so act.
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of Warrants:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
“Affiliate” means, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with, such other Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) when used with respect to any Person, means the possession, directly or indirectly, of the power to cause the direction of management and/or policies of such Person, whether through the ownership of voting securities by contract or otherwise.

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“Agent Members” means the securities brokers and dealers, banks and trust companies, clearing organizations and certain other organizations that are participants in the Depositary’s system.
“business day” means any day except Saturday, Sunday and any day on which banking institutions in the State of New York are authorized or required by law or other governmental actions to close.
“Common Stock” means the common stock, par value $0.01 per share, of the Company, subject to Section 12(E) of the Warrant Certificate.
“Custodian” means Computershare Trust Company, N.A., as custodian for the Depositary, or any successor thereto.
“Definitive Warrant” means a Warrant Certificate in definitive form that is not deposited with the Depositary or with the Custodian.
“Depositary” means The Depository Trust Company, its nominees and their respective successors.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Exercise Period” has the meaning set forth in the form of Warrant Certificate attached as Exhibit A hereto.
“Exercise Price” has the meaning set forth in the form of Warrant Certificate attached as Exhibit A hereto.
“Officer” means the President, Chief Executive Officer, Chief Financial Officer, General Counsel, Controller and Corporate Secretary of the Company, and any Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”) of the Company.
“Officers’ Certificate” means a certificate signed by two Officers.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Warrant Agent. Such counsel may be an employee of or counsel to the Company or the Warrant Agent.
“Person” means an individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, limited liability partnership, trust, unincorporated organization, or government or any agency or political subdivision thereof or any other entity.
“Shares” has the meaning set forth in the form of Warrant Certificate attached as Exhibit A hereto.

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“Warrant Certificate” means any fully registered certificate (including a Global Warrant) issued by the Company and authenticated by the Warrant Agent under this Agreement evidencing Warrants, in the form attached as Exhibit A hereto.
“Warrant Share Number” has the meaning set forth in the form of Warrant Certificate attached as Exhibit A hereto.
Section 1.02. Other Definitions.
Term
Defined in Section
“Agreement”
Recitals
“Company”
Recitals
“Computershare”
Recitals
“Funds”
5.02(h)
“Global Warrant”
2.01(a)
“Holder” or “Holders”
Recitals
“Loss” or “Losses”
5.05(b)
“Registry”
2.03
“Warrant”
Recitals
“Warrant Agent”
Recitals

Section 1.03. Rules of Construction.
Unless the text otherwise requires:
(a) a defined term has the meaning assigned to it;
(b)    an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles as in effect on the date hereof;
(c)    “or” is not exclusive;
(d)    “including” means including, without limitation; and
(e)    words in the singular include the plural and words in the plural include the singular.
ARTICLE II
WARRANTS
Section 2.01. Form.
(a)    Global Warrants. Except as provided in Section 2.04 or 2.05, Warrants issued upon any transfer or exchange thereof shall be issued in the form of one or more permanent global Warrants in fully registered form with the global securities legend set forth in the form of

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Warrant Certificate attached as Exhibit A hereto (each, a “Global Warrant”), which shall be deposited on behalf of the Company with the Custodian (or with such other custodian as the Depositary may direct), and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and countersigned by the Warrant Agent as hereinafter provided.
(b)    Book-Entry Provisions. This Section 2.01(b) shall apply only to a Global Warrant deposited with or on behalf of the Depositary.
(i)    The Company shall execute and the Warrant Agent shall, in accordance with Section 2.02, countersign, either by manual or facsimile signature, and deliver one or more Global Warrants that (A) shall be registered in the name of the Depositary or the nominee of the Depositary and (B) shall be delivered by the Warrant Agent to the Depositary or pursuant to the Depositary’s instructions or held by the Custodian. Each Global Warrant shall be dated the date of its countersignature by the Warrant Agent.
(ii)    Agent Members shall have no rights under this Agreement with respect to any Global Warrant held on their behalf by the Depositary or by the Warrant Agent as the custodian of the Depositary or under such Global Warrant except to the extent set forth herein or in a Warrant Certificate, and the Depositary may be treated by the Company, the Warrant Agent and any agent of the Company or the Warrant Agent as the absolute owner of such Global Warrant for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (B) impair, as between the Depositary and the Agent Members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Warrant. The rights of beneficial owners in a Global Warrant shall be exercised through the Depositary subject to the applicable procedures of the Depositary except to the extent set forth herein or in a Warrant Certificate.
(c)    Definitive Securities. Except as provided in Section 2.04 or 2.05, owners of beneficial interests in Global Warrants will not be entitled to receive physical delivery of Definitive Warrants.
(d)    Warrant Certificates. Warrant Certificates shall be in substantially the form attached as Exhibit A hereto and shall be typed, printed, lithographed or engraved or produced by any combination of such methods or produced in any other manner permitted by the rules of any securities exchange on which the Warrants may be listed, all as determined by the Officer or Officers executing such Warrant Certificates, as evidenced by their execution thereof. Any Warrant Certificate shall have such insertions as are appropriate or required or permitted by this Agreement and may have such letters, numbers or other marks of identification and such legends and endorsements, stamped, printed, lithographed or engraved thereon, (i) as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement (and which insertions, letters, numbers, marks of identification, legends or endorsements do not affect the rights, duties, immunities or obligations of the Warrant Agent), (ii) such as may be required to

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comply with this Agreement, any applicable law or any rule of any securities exchange on which the Warrants may be listed, and (iii) such as may be necessary to conform to customary usage.
Section 2.02. Execution and Countersignature.
(a)    Execution by the Company. At least one Officer shall sign the Warrant Certificates for the Company by manual or facsimile signature. If an Officer whose signature is on a Warrant Certificate no longer holds that office at the time the Warrant Agent countersigns the Warrant Certificate, the Warrants evidenced by such Warrant Certificate shall be valid nevertheless.
(b)    Countersignature by the Warrant Agent. The Warrant Agent shall initially countersign, either by manual or facsimile signature, and deliver Warrant Certificates evidencing in the aggregate not more than 810,811 Warrants upon a written order of the Company signed by at least one Officer of the Company. Such order shall specify the number of Warrants to be evidenced on the Warrant Certificate to be countersigned, the date on which such Warrant Certificate is to be countersigned and the number of Warrants then authorized. Each Warrant Certificate shall be dated the date of its countersignature by the Warrant Agent.
(c)    Subsequent Issue of Warrant Certificates. At any time and from time to time after the execution of this Agreement, the Warrant Agent shall upon receipt of a written order of the Company signed by an Officer of the Company countersign, by either manual or facsimile signature, and issue a Warrant Certificate evidencing the number of Warrants specified in such order; provided that the Warrant Agent shall be entitled to receive, in connection with such countersignature of Warrants described in this Section 2.02(c), an Officers’ Certificate and an Opinion of Counsel of the Company to the effect that issuance and execution of such Warrants is authorized or permitted by this Agreement. Such written order of the Company shall specify the number of Warrants to be evidenced on the Warrant Certificate to be countersigned, the date on which such Warrant Certificate is to be countersigned and the number of Warrants then authorized. Each Warrant Certificate shall be dated the date of its countersignature by the Warrant Agent.
(d)    Validity of Warrant Certificates. The Warrants evidenced by a Warrant Certificate shall not be valid until an authorized signatory of the Warrant Agent countersigns the Warrant Certificate either manually or by facsimile signature. Such signature shall be solely for the purpose of authenticating the Warrant Certificate and shall be conclusive evidence that the Warrant Certificate so countersigned has been duly authenticated and issued under this Agreement. Countersigned Warrant Certificates may be delivered, notwithstanding the fact that the persons or any one of them who countersigned the Warrants shall have ceased to be proper signatories prior to the delivery of such Warrants or were not proper signatories on the date of this Agreement.
Section 2.03. Registry.
The Warrants shall be issued in registered form only. The Warrant Agent shall keep a registry (the “Registry”) of the Warrant Certificates and of their transfer and exchange.

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The Registry shall show the names and addresses of the respective Holders and the date and number of Warrants evidenced on the face of each of the Warrant Certificates, and record all exchanges, exercise, cancellation and transfers of the Warrants. The Holder of any Global Warrant will be the Depositary or a nominee of the Depositary in whose name the Global Warrant is registered. The Warrant holdings of Agent Members will be recorded on the books of the Depositary. The beneficial interests in the Global Warrant held by customers of Agent Members will be reflected on the books and records of such Agent Members and will not be known to the Warrant Agent, the Company or to the Depositary. Any Warrant Certificate may be surrendered for transfer, cancellation, exchange or exercise, in accordance with its terms, at the office of the Warrant Agent designated for such purpose. The Company and the Warrant Agent may deem and treat any Person in whose name a Warrant Certificate is registered in the Registry as the absolute owner of such Warrant Certificate for all purposes whatsoever and neither the Company nor the Warrant Agent shall be affected by notice to the contrary.
Section 2.04. Transfer and Exchange.
(a)    Transfer and Exchange of Global Warrants.
(i)    The transfer and exchange of Global Warrants or beneficial interests therein shall be effected through the book-entry system maintained by the Depositary, in accordance with this Agreement and the Warrant Certificates and the procedures of the Depositary therefor.
(ii)    Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 2.05), a Global Warrant may only be transferred as a whole, and not in part, and only by (A) the Depositary, to a nominee of the Depositary, (B) a nominee of the Depositary, to the Depositary or another nominee of the Depositary, or (C) the Depositary or any such nominee to a successor Depositary or its nominee.
(iii)    In the event that a Global Warrant is exchanged and transferred for Definitive Warrants pursuant to Section 2.05, such Warrants may be exchanged only in accordance with Section 9 of the Warrant Certificate and such procedures as are substantially consistent with the provisions of this Section 2.04 and the requirements of any Warrant Certificate and such other procedures as may from time to time be adopted by the Company that are not inconsistent with the terms of this Agreement or of any Warrant Certificate.
(b)    Cancellation or Adjustment of Global Warrant. At such time as all beneficial interests in a Global Warrant have been exchanged for Definitive Warrants, repurchased or canceled, such Global Warrant shall be returned by the Depositary for cancellation or retained and canceled by the Warrant Agent. At any time prior to such cancellation, if any beneficial interest in a Global Warrant is transferred or exchanged for Definitive Warrants, repurchased, exercised or canceled, the number of Warrants represented by such Global Warrant shall be reduced and the Warrant Agent shall make an adjustment on its books and records to reflect such reduction; provided that, in the case of an adjustment on account of an exercise of Warrants, the Warrant Agent shall have no duty or obligation to make such adjustment until it has received notice from the Holder of the amount thereof.

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(c)    Obligations with Respect to Transfers and Exchanges of Warrants.
(i)    To permit registrations of transfers and exchanges, the Company shall execute and the Warrant Agent shall countersign, either by manual or facsimile signature, Global Warrants and Definitive Warrants as required pursuant to the provisions of Section 2.02 and this Section 2.04. A transferor of a Global Warrant or a Definitive Warrant shall deliver to the Warrant Agent a written instruction of transfer in form reasonably satisfactory to the Warrant Agent, duly executed by the Holder thereof or by his attorney, duly authorized in writing. Additionally, prior to registration of any transfer or exchange of a Warrant, the requirements for the Warrant issued upon such transfer or exchange to be issued in a name other than the registered Holder shall be met. Such requirements include, inter alia, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association (at a guarantee level reasonably acceptable to the Company’s transfer agent), and any other reasonable evidence of authority that may be required by the Warrant Agent. Upon satisfaction of the conditions in this clause (i), the Warrant Agent shall, in accordance with such instructions, register the transfer or exchange of the relevant Global Warrant or Definitive Warrant.
(ii)    No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment from a Holder of a sum sufficient to cover any transfer tax, assessments or similar governmental charge payable in connection therewith. The Warrant Agent shall have no duty or obligation under any Section of this Agreement requiring the payment of taxes, assessments, and/or governmental charges unless and until the Warrant Agent is satisfied that all such taxes, assessments, and/or governmental charges have been paid.
(iii)    All Warrants issued upon any transfer or exchange pursuant to the terms of this Agreement shall be the valid obligations of the Company, entitled to the same benefits under this Agreement as the Warrants surrendered upon such transfer or exchange.
(d)    No Obligation of the Warrant Agent.
(i)    The Warrant Agent shall have no responsibility or obligation to any beneficial owner of a Global Warrant, any Agent Member or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Warrants or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Warrants. All notices and communications to be given to the Holders and all payments to be made to Holders under the Warrants shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Warrant). Except as set forth in the Warrant Certificate, the rights of beneficial owners in any Global Warrant shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Warrant Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.

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(ii)    The Warrant Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Warrant (including any transfer between or among the Agent Members or beneficial owners in any Global Warrant) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Agreement and the Warrant Certificate, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.05. Definitive Warrants.
(a)    Issuance of Definitive Warrants. Beneficial interests in a Global Warrant deposited with the Depositary or with the Custodian pursuant to Section 2.01 shall be transferred to each beneficial owner thereof in the form of Definitive Warrants evidencing a number of Warrants equivalent to such owner’s beneficial interest in such Global Warrant, in exchange for such Global Warrant, only if such transfer complies with Section 2.04 and (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Warrant or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in each such case, a successor Depositary is not appointed by the Company within 90 days of such notice, (ii) the Company, in its sole discretion, notifies the Warrant Agent in writing that it elects to cause the issuance of Definitive Warrants under this Agreement in accordance with the applicable rules and procedures of the Depositary, or (iii) the Company shall be adjudged a bankrupt or insolvent or make an assignment for the benefit of its creditors or institute proceedings to be adjudicated a bankrupt or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under federal bankruptcy laws or any other similar applicable federal or state law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or custodian of it or all or any substantial part of its property shall be appointed, or if a public officer shall have taken charge or control of the Company or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation.
(b)    Surrender of Global Warrants and Exchange for Definitive Warrants. Any Global Warrant that is to be exchanged, in whole or in part, for Definitive Warrants pursuant to this Section 2.05 shall be surrendered by the Depositary to the Warrant Agent, to be so exchanged, in whole or from time to time in part, without charge, and the Warrant Agent shall countersign, either by manual or facsimile signature, and deliver to each beneficial owner of such Global Warrant (or, in the case of clause (ii) in Section 2.05(a), to each beneficial owner requesting such an exchange) in the name of such beneficial owner, Definitive Warrants evidencing a number of Warrants equivalent to such beneficial owner’s beneficial interest in the Global Warrant. The Warrant Agent shall register such exchange in the Registry, and if the entire Global Warrant has been exchanged for Definitive Warrants the surrendered Global Warrant shall be cancelled by the Warrant Agent.

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(c)    Validity of Definitive Warrants. All Definitive Warrants issued upon transfer pursuant to this Section 2.05 shall be the valid obligations of the Company, evidencing the same obligations of the Company and entitled to the same benefits under this Agreement and the Global Warrant surrendered upon such transfer.
(d)    Definitive Warrant Certificates. In the event of the occurrence of any of the events specified in Section 2.05(a), the Company will promptly make available to the Warrant Agent a reasonable supply of Definitive Warrants in definitive, fully registered form.
(e)    No Liability. Neither the Company nor the Warrant Agent will be liable or responsible for any registration or transfer of any Warrants that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary.
Section 2.06. Replacement Certificates.
If a mutilated Warrant Certificate is surrendered to the Warrant Agent or if the Holder of a Warrant Certificate provides evidence reasonably satisfactory to the Company and the Warrant Agent that the Warrant Certificate has been lost, destroyed or wrongfully taken, the Company shall issue and the Warrant Agent shall countersign, by either manual or facsimile signature, a replacement Warrant Certificate of like tenor and representing an equivalent number of Warrants, if the reasonable requirements of the Warrant Agent and Section 8-405 of the Uniform Commercial Code as in effect in the State of New York are met. In the case of the Warrant Certificate that is lost, destroyed or wrongfully taken, if required by the Warrant Agent or the Company, such Holder shall furnish an open-penalty surety bond sufficient in the judgment of the Warrant Agent to protect the Company and the Warrant Agent from any loss that either of them may suffer if a Warrant Certificate is replaced. The Company and the Warrant Agent may charge the Holder for their expenses in replacing a Warrant Certificate prior to issuing and delivering a replacement Warrant Certificate to such Holder. Every replacement Warrant Certificate evidences an additional obligation of the Company.
Section 2.07. Outstanding Warrants.
Subject to Section 6.02, the Warrants outstanding at any time are all Warrants evidenced on all Warrant Certificates authenticated by the Warrant Agent except for those canceled by it and those delivered to it for cancellation; provided that in determining the “Majority Holders” as defined in the Warrant Certificate, Warrants owned by the Company or by any Affiliate of the Company shall be disregarded and deemed not to be outstanding. The Company shall not sell, and shall use commercially reasonable efforts to prevent any Affiliate of the Company from selling, any Warrant if the Warrant would constitute a “restricted security” (within the meaning of Rule 144 under the Securities Act) upon such resale.
If a Warrant Certificate is replaced pursuant to Section 2.06, the Warrants evidenced thereby cease to be outstanding unless the Warrant Agent and the Company receive proof satisfactory to them that the replaced Warrant Certificate is held by a bona fide purchaser.
Section 2.08. Cancellation.

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In the event the Company shall purchase or otherwise acquire Definitive Warrants, the same shall thereupon be delivered to the Warrant Agent for cancellation.
The Warrant Agent and no one else shall cancel and destroy all Warrant Certificates surrendered for transfer, exchange, replacement, exercise or cancellation and deliver a certificate of such destruction to the Company unless the Company directs the Warrant Agent to deliver any canceled Warrant Certificates to the Company. The Company may not issue new Warrant Certificates to replace Warrant Certificates to the extent they evidence Warrants that have been exercised or Warrants that the Company has purchased or otherwise acquired.
Section 2.09. CUSIP Numbers.
In issuing the Warrants, the Company may use CUSIP numbers (if then generally in use) and, if so, the Warrant Agent shall use CUSIP numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such CUSIP numbers either as printed on the Warrant Certificates or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Warrant Certificates.
Section 2.10. Withholding and Reporting Requirements.
The Company shall comply with all applicable tax withholding and reporting requirements imposed by any governmental unit, and all distributions, including deemed distributions, pursuant to the Warrants will be subject to applicable withholding and reporting requirements. Notwithstanding any provision to the contrary, the Company will be authorized to
(i)    take any actions that may be necessary or appropriate to comply with such withholding and reporting requirements, (ii) apply a portion of any cash distribution to be made under the Warrants to pay applicable withholding taxes, (iii) liquidate a portion of any non-cash distribution to be made under the Warrants to generate sufficient funds to pay applicable withholding taxes or (iv) establish any other mechanisms the Company believes are reasonable and appropriate, including requiring Holders to submit appropriate tax and withholding certifications (such as IRS Forms W-9 and the appropriate IRS Forms W-8, as applicable) and/or requiring Holders to pay the withholding tax amount to the Company in cash as a condition of receiving the benefit of any antidilution adjustment pursuant to Article IV.
Section 2.11. Proxies.
The registered Holder of a Global Warrant may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold beneficial interests through Agent Members, to take any action that a Holder is entitled to take under this Agreement or the Warrants.
ARTICLE III
EXERCISE TERMS

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Section 3.01. Exercise.
The Exercise Price of each Warrant, the Warrant Share Number, the number of Warrants evidenced by any Warrant Certificate and the Exercise Period of each Warrant shall be set forth in the related Warrant Certificate. The Exercise Price of each Warrant and the Warrant Share Number are subject to adjustment pursuant to the terms set forth in the Warrant Certificate.
Section 3.02. Manner of Exercise and Issuance of Shares.
Warrants may be exercised in the manner set forth in Sections 3 and 4 of the Warrant Certificate, and upon any such exercise, if any Shares are issuable pursuant to Section 4 of the Warrant Certificate, such Shares shall be issued in the manner set forth in Section 5 of the Warrant Certificate.
Section 3.03. Covenants Relating to Common Stock Issuable Upon Warrant Exercise.
(a)    Common Stock Certificates. The Warrant Agent is hereby authorized to request from time to time from any stock transfer agents of the Company stock certificates required to honor outstanding Warrants upon exercise thereof in accordance with the terms of this Agreement and the applicable Warrant Certificate, and the Company agrees to authorize and direct such transfer agents to comply with all such requests of the Warrant Agent. The Company shall supply such transfer agents with duly executed stock certificates for such purposes and shall provide or otherwise make available any cash that may be payable upon exercise of Warrants as provided herein and in each Warrant Certificate.
(b)    Common Stock Reserve. The Company hereby confirms that it previously has authorized and instructed its transfer agent and registrar for the Common Stock to create a special account for the reserve of a number of shares of Common Stock equal to the aggregate Warrant Share Number for all outstanding Warrants to be issued upon exercise of the Warrants, and such reserve account shall be maintained until the earlier of (1) the end of the Exercise Period and (2) the time at which all Warrants have been exercised.
Section 3.04. Exercise Calculations.
To the extent applicable, the Company shall calculate and transmit to the Warrant Agent, and the Warrant Agent shall have no obligation under this Agreement to calculate, the number of Shares deliverable pursuant to any exercise of Warrants. The number of Shares to be issued on such exercise will be determined by the Company (with written notice thereof to the Warrant Agent) as set forth in the Warrant Certificate. The Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company’s determination of the number of Shares to be issued on such exercise is accurate or correct.
Section 3.05. Delivery of Exercise Price.
The Warrant Agent shall forward cleared funds received for Warrant exercises in a given month by the fifth business day of the following month, by wire transfer to an account

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designated by the Company. Notwithstanding the foregoing, in the event such received funds equal or exceed $5,000, all such accumulated funds shall be delivered within five business days after reaching such $5,000 threshold.
Section 3.06. Cash in Lieu of Fractional Shares.
Unless otherwise provided for in standing arrangements with the Depositary in respect of Global Warrants, the Company shall provide an initial funding of one thousand dollars ($1,000) for the purpose of issuing cash in lieu of fractional Shares, pursuant to the Warrant Certificate. From time to time thereafter, the Warrant Agent may request additional funding to cover payments for fractional Shares, as needed. The Warrant Agent shall have no obligation to make payments for fractional shares unless the Company shall have provided the necessary funds to pay in full all amounts due and payable with respect thereto.
Section 3.07. Cost Basis Information.
Promptly following a request by the Warrant Agent in connection with any issuance of Shares upon exercise of the Warrants, the Company shall provide to the Warrant Agent the cost basis for such Shares issued.
ARTICLE IV
ANTIDILUTION PROVISIONS
Section 4.01. Antidilution Adjustments; Notice of Adjustment.
The Exercise Price and the Warrant Share Number shall be subject to adjustment from time to time as provided in Section 12 of the Warrant Certificate. Whenever the Exercise Price or the Warrant Share Number is so adjusted or is proposed to be adjusted as provided in Section 12 of the Warrant Certificate, the Company shall deliver to the Warrant Agent the notices or statements, and shall cause a copy of such notices or statements to be sent or communicated to each Holder pursuant to Section 6.03, as provided in Section 12(H) of the Warrant Certificate.
Section 4.02. Adjustment to Warrant Certificate.
The form of Warrant Certificate need not be changed because of any adjustment made pursuant to the Warrant Certificate (except as expressly provided in Section 12(E) of the Warrant Certificate), and Warrant Certificates issued after such adjustment may state the same Exercise Price and the same Warrant Share Number as are stated in the Warrant Certificates initially issued pursuant to this Agreement. The Company, however, may at any time in its sole discretion make any change in the form of Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect the substance of the Warrant Certificate, and any Warrant Certificate thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the form as so changed. In the event of any such change, the Company shall give prompt notice thereof to all registered Holders and, if

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appropriate, notation thereof shall be made on all Warrant Certificates thereafter surrendered for registration of transfer or exchange.
ARTICLE V
WARRANT AGENT
Section 5.01. Appointment of Warrant Agent.
The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the provisions of this Agreement and the Warrant Agent hereby accepts such appointment. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement, except for its own gross negligence, willful misconduct or bad faith. Notwithstanding anything in this Agreement to the contrary, other than for its own fraud, recklessness, willful misconduct or bad faith, the Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Warrant Agent as fees and charges, but not including reimbursable expenses, during the twelve (12) months immediately preceding the event for which recovery from the Warrant Agent is being sought, and in no event shall the Warrant Agent be liable for special, punitive, incidental, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of the action.
The rights and obligations of the parties set forth in this Section 5.01 shall survive the termination of this Agreement and the resignation, replacement or removal of the Warrant Agent.
Section 5.02. Rights and Duties of Warrant Agent.
(a)    Agent for the Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation of agency or trust or any relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners of Warrants.
(b)    Counsel. The Warrant Agent may consult with counsel satisfactory to it, and the advice of such counsel shall be full and complete authorization and protection to the Warrant Agent in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice of such counsel.
(c)    Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it, absent gross negligence, willful misconduct or bad faith, in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper officers or other parties of the

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Company. The Warrant Agent shall not take any instructions or directions except those given in accordance with this Agreement.
(d)    No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are specifically set forth herein and in the Warrant Certificates, and no implied or inferred duties, responsibility or obligations of the Warrant Agent shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder that may involve it in any expense or liability for which it does not receive indemnity if such indemnity is reasonably requested. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Holders or on behalf of the Holders pursuant to this Agreement or for the application by the Company of the proceeds of the Warrants. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder with respect to such default, including any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise. The Warrant Agent shall have no duty or responsibility to ensure compliance with any applicable federal or state securities law in connection with the issuance, transfer or exchange of any Warrants under this Agreement.
(e)    Not Responsible for Adjustments or Validity of Stock. The Warrant Agent shall not at any time be under any duty or responsibility to any Holder to determine whether any facts exist that may require an adjustment of the Warrant Share Number or the Exercise Price or to calculate any such adjustment, or to make any determination with respect to the nature or extent of any adjustment when made, or with respect to the method employed, herein or in any supplemental agreement provided to be employed, in making the same. The Warrant Agent shall not be accountable with respect to the validity or value of any Shares or of any securities or property that may at any time be issued or delivered upon the exercise of any Warrant or upon any adjustment pursuant to Section 12 of the Warrant Certificate, and it makes no representation with respect thereto. The Warrant Agent shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any Shares or stock certificates upon the surrender of any Warrant Certificate for the purpose of exercise or upon any adjustment pursuant to Section 12 of the Warrant Certificate, or to comply with any of the covenants of the Company contained in the Warrant Certificate or this Agreement.
(f)    Notices or Demands Addressed to the Company. If the Warrant Agent receives any notice or demand addressed to the Company by the Holder of a Warrant, the Warrant Agent shall promptly forward such notice or demand to the Company.
(g)    Ambiguity. In the event the Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is for any reason unsure as to what action to take hereunder, the Warrant Agent shall notify the Company in writing as soon as practicable, and upon delivery of such notice may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to

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the Company or any Holder or other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminate such ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent is authorized and directed hereby to comply with any orders, judgments, or decrees of any court that it believes has jurisdiction over it and, absent gross negligence, willful misconduct or bad faith, will not be liable as a result of its compliance with the same.
(h)    Deposits. All funds received by Computershare under this Agreement that are to be distributed or applied by Computershare in the performance of services (the “Funds”) shall be held by Computershare as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for the Company. Until paid pursuant to the terms of this Agreement, Computershare will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by Computershare in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits. Computershare shall not be obligated to pay such interest, dividends or earnings to the Company, any Warrantholder or any other party.
Section 5.03. Individual Rights of Warrant Agent.
The Warrant Agent and any stockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company or its affiliates or become pecuniarily interested in transactions in which the Company or its affiliates may be interested, or contract with or lend money to the Company or its affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Section 5.04. Warrant Agent’s Disclaimer.
The Warrant Agent shall not be responsible for, and makes no representation as to the validity or adequacy of, this Agreement (except the due and valid authorized execution and delivery of this Agreement by the Warrant Agent) or the Warrant Certificates (except the due countersignature of the Warrant Certificate(s) by the Warrant Agent) and it shall not be responsible for any statement in this Agreement or the Warrant Certificates other than its countersignature thereon; nor will the Warrant Agent be under any duty or responsibility to insure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Warrant Certificates.
Section 5.05. Compensation and Indemnity.

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(a)    Compensation of Warrant Agent. The Company agrees to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent under this Agreement and to reimburse the Warrant Agent upon request for all reasonable out-of-pocket expenses, including the reasonable and documented counsel fees and expenses, incurred by the Warrant Agent in connection with the preparation, delivery, administration, execution and amendment of this Agreement and the performance of the services rendered by the Warrant Agent under this Agreement. The Company is not obligated to reimburse any expense incurred by the Warrant Agent through gross negligence, willful misconduct or bad faith.
(b)    Indemnification by the Company. The Company shall indemnify and hold harmless the Warrant Agent, its officers and directors against any loss, liability or expense (including reasonable attorneys’ fees and expenses) incurred by it (each, a “Loss” and, collectively, “Losses”) without gross negligence, willful misconduct or bad faith on its part arising out of or in connection with the acceptance, administration, exercise or performance of its duties under this Agreement. The Company shall further indemnify and hold the Warrant Agent harmless from and against any Loss arising out of or attributable to the Warrant Agent’s acting on the written instructions of the Company, so long as the Warrant Agent so acted without gross negligence, willful misconduct or bad faith. The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. The costs and expenses incurred by the Warrant Agent in successfully enforcing its right of indemnification hereunder shall be paid by the Company. The Company is not obligated to indemnify against any loss or liability incurred by the Warrant Agent through willful misconduct, gross negligence or bad faith. The rights and obligations of the parties set forth in Sections 5.05(a) and (b) shall survive the termination of this Agreement and the resignation, replacement or removal of the Warrant Agent.
Section 5.06. Successor Warrant Agent.
(a)    Company to Provide and Maintain Warrant Agent. The Company agrees for the benefit of the Holders that there shall at all times be a Warrant Agent hereunder until all the Warrants have been exercised or cancelled or are no longer exercisable.
(b)    Resignation and Removal. The Warrant Agent may at any time resign by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective; provided that such date shall not be less than 60 days after the date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date when it shall become effective, which date shall not be less than 60 days after such notice is given unless the Warrant Agent otherwise agrees. Any removal under this Section 5.06(b) shall take effect upon the appointment by the Company as hereinafter provided of a successor Warrant Agent (which shall be (i) a bank or trust company, (ii) organized under the laws of the United States of America or one of the states thereof, (iii) authorized under the laws of the jurisdiction of its organization to exercise corporate trust powers, (iv) having a combined capital and surplus of at least $50,000,000 (as set forth in its most recent reports of condition published pursuant to law or to the requirements of any United States federal or state regulatory or supervisory authority) and (v)

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having an office in the Borough of Manhattan, The City of New York) and the acceptance of such appointment by such successor Warrant Agent.
(c)    Company to Appoint Successor. In the event that at any time the Warrant Agent resigns, is removed, becomes incapable of acting, fails to perform any of its obligations hereunder or under any Warrant Certificate in accordance with the terms hereof or thereof, is adjudged bankrupt or insolvent, commences a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or under any other applicable federal or state bankruptcy, insolvency or similar law, consents to the appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property or affairs, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts generally as they become due, or takes corporate action in furtherance of any such action, or a decree or order for relief by a court having jurisdiction in the premises has been entered in respect of the Warrant Agent in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or similar law, or a decree or order by a court having jurisdiction in the premises has been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer takes charge or control of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, meeting the qualifications specified in Section 5.06(b), will be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. In the event that a successor Warrant Agent is not appointed by the Company, a successor Warrant Agent, qualified as aforesaid, may be appointed by the Warrant Agent or the Warrant Agent may petition a court to appoint a successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent hereunder; provided that in the event of the resignation of the Warrant Agent under this subsection (c), such resignation shall be effective on the earlier of (i) the date specified in the Warrant Agent’s notice of resignation and (ii) the appointment and acceptance of a successor Warrant Agent hereunder.
(d)    Successor to Expressly Assume Duties. Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the rights and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e)    Successor by Merger. Any entity into which the Warrant Agent hereunder may be merged or consolidated, or any entity resulting from any merger or consolidation to which the Warrant Agent is a party, or any entity to which the Warrant Agent sells or otherwise transfers all or substantially all of its assets and business (including with respect to the administration of this

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Agreement), shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that it is open for business on each business day and (i) (A) is organized under the laws of the United States of America or one of the states thereof, (B) is authorized under the laws of the jurisdiction of its organization to exercise corporate trust or stock transfer powers and (C) has a combined capital and surplus of at least $50,000,000 or (ii) is an Affiliate of an entity that meets the requirements set forth in clause (i).
Section 5.07. Representations of the Company. The Company represents and warrants to the Warrant Agent that:
(a)    the Company has been duly organized and is validly existing under the laws of the jurisdiction of its incorporation;
(b)    this Agreement has been duly authorized, executed and delivered by the Company and is enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity;
(c)    the execution and delivery of this Agreement does not, and the issuance of the Warrants in accordance with the terms of this Agreement and the Warrant Certificate will not, (i) violate the Company’s certificate of incorporation or by-laws, (ii) violate any law or regulation applicable to the Company or order or decree of any court or public authority having jurisdiction over the Company, or (iii) result in a breach of any mortgage, indenture, contract, agreement or undertaking to which the Company is a party or by which it is bound, except in the case of (ii) and (iii) for any violations or breaches that could not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(d)    the Company shall provide an opinion of counsel to the Warrant Agent on or prior to the date hereof stating that (i) the Warrants have been duly authorized and (ii) the Shares initially issuable upon exercise of the Warrants have been duly authorized and reserved and, when issued upon exercise of the Warrants in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Persons Benefitting.
Nothing in this Agreement is intended or shall be construed to confer upon any Person other than the Company, the Warrant Agent, the Holders and the owners of beneficial interest of the Warrants any right, remedy or claim under or by reason of this Agreement or any part hereof.
Section 6.02. Amendment.

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This Agreement and the Warrants may be amended by the parties hereto without the consent of any Holder for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein or therein or adding or changing any other provisions with respect to matters or questions arising under this Agreement or the Warrants as the Company, acting in good faith, and the Warrant Agent may deem necessary or desirable; provided that such action shall not adversely affect the rights of any of the Holders in any respect. Any amendment or supplement to this Agreement or the Warrants, or any waiver hereunder or thereunder, in each case, that has a material adverse effect on the interests of any of the Holders or owners of a beneficial interest in a Global Warrant in any respect shall require the written consent of the Holders of a majority of the then outstanding Warrants; provided that the consent of each Holder affected thereby shall be required for any amendment pursuant to which
(i)    the Exercise Price would be increased, the Warrant Share Number would be decreased or the kind or amount of other property issuable upon exercise of the Warrants would be changed or decreased, as applicable (in each case, other than pursuant to adjustments provided for in Section 12 of the Warrant Certificate), (ii) the time period during which the Warrants are exercisable would be shortened, (iii) any change adverse to the Holder would be made to the anti-dilution provisions set forth in Article IV of this Agreement or Section 12 of the Warrant Certificate (including all definitions used therein) (excluding any amendment following a Reorganization, pursuant to Section 12(F) of the Warrant Certificate, specifying that the anti-dilution provisions shall apply only to that portion of the Exchange Property consisting of securities), (iv) the Holder’s right to exercise the Warrants and receive Shares upon such exercise, or the ability of any Holder or Agent Member (on behalf of itself or any beneficial owner) to enforce such right, would otherwise be materially impaired, or (v) the percentage of Holders required to amend the Warrants or this Agreement or grant a waiver thereunder or hereunder would be reduced. In determining whether the Holders of the required number of Warrants have concurred in any direction, waiver or consent, Warrants owned by the Company or by any Affiliate of the Company shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Warrant Agent shall be protected in relying on any such direction, waiver or consent, only Warrants that the Warrant Agent knows are so owned shall be so disregarded. Also, subject to the foregoing, only Warrants outstanding at the time shall be considered in any such determination. The Company and the Warrant Agent may set a record date for any such direction, waiver or consent and only the Holders as of such record date shall be entitled to make or give such direction, waiver or consent. The Warrant Agent shall have no duty to determine whether any such amendment would have an effect on the rights or interests of the holders of the Warrants. Upon receipt by the Warrant Agent of an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the execution of the amendment have been complied with and such execution is permitted by this Agreement and the Warrant Certificate, the Warrant Agent shall join in the execution of such amendment; provided that the Warrant Agent may, but shall not be obligated to, execute any amendment or supplement which affects the rights or changes or increases the duties or obligations of the Warrant Agent. Promptly following execution of any amendment or supplement to this Agreement or the Warrant Certificate, the Company shall send a copy thereof to the Warrant Agent and cause such document to be sent or communicated to the Warrantholders and holders of a beneficial interest in a Global Warrant in the manner set forth in Section 19 of the Warrant

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Certificate; provided further that failure to deliver such copy to the Warrant Agent or otherwise deliver such document to all Warrantholders or holders of a beneficial interest in a Global Warrant or any defect therein shall not affect the validity of such amendment or supplement. As a condition precedent to the Warrant Agent’s execution of any such amendment, the Company shall deliver to the Warrant Agent an Officer’s Certificate that states that the proposed amendment is in compliance with the terms of this Section 6.02.
Section 6.03. Notices.
Any notice or communication shall be in writing and delivered in person, by certified or registered mail, or nationally-recognized courier, or by facsimile or e-mail transmission, if acceptable to the parties, addressed as follows:
if to the Company:
Contura Energy, Inc.
P.O. Box 848
Bristol, TN 37621-0848

with a copy to:
Byron B. Rooney
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 450-4658
Facsimile: (212) 701-5658

if to the Warrant Agent:
Computershare Inc.
250 Royall Street
Canton, Massachusetts 02021
Attn: General Counsel

The Company or the Warrant Agent by notice to the other may designate additional or different addresses for subsequent notices or communications.
Unless the Warrant is a Global Warrant, any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the Registry and shall be sufficiently given if so mailed within the time prescribed. Any notice to the owners of a beneficial interest in a Global Warrant shall be distributed through the Depositary in accordance with the procedures of the Depositary. Communications to such Holder shall be deemed to be effective at the time of dispatch to the Depositary.
Failure to provide a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is provided in the manner provided above, it is duly given, whether or not the intended recipient actually receives it.

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Section 6.04. Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State.
Section 6.05. Successors.
All agreements of the Company in this Agreement and the Warrants shall bind its successors and permissible assigns. All agreements of the Warrant Agent in this Agreement shall bind its successors and permissible assigns.
Section 6.06. Multiple Originals; Counterparts.
The parties may sign any number of copies of this Agreement. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Agreement. A signature to this Agreement transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
Section 6.07. Inspection of Agreement.
A copy of this Agreement shall be made available at all reasonable times for inspection by any registered Holder or owner of a beneficial interest in a Global Warrant at the office of the Warrant Agent (or successor warrant agent) designated for such purpose.
Section 6.08. Table of Contents.
The table of contents and headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 6.09. Severability.
The provisions of this Agreement are severable, and if any clause or provision shall be held invalid, illegal or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect in that jurisdiction only such clause or provision, or part thereof, and shall not in any manner affect such clause or provision in any other jurisdiction or any other clause or provision of this Agreement in any jurisdiction.
Section 6.10. Customer Identification Program.
Each Person that is a party hereto acknowledges that the Warrant Agent is subject to the customer identification program (“Customer Identification Program”) requirements under the USA PATRIOT Act and its implementing regulations, and that the Warrant Agent must obtain, verify and record information that allows the Warrant Agent to identify each such Person.
Accordingly, prior to accepting an appointment hereunder, the Warrant Agent may request information from any such Person that will help the Warrant Agent to identify such

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Person, including without limitation, as applicable, such Person’s physical address, tax identification number, organizational documents, certificate of good standing or license to do business. Each person or entity that is a party hereto agrees that the Warrant Agent cannot accept an appointment hereunder unless and until the Warrant Agent verifies each such Person’s identity in accordance with the Customer Identification Program requirements.
Section 6.11. Confidentiality.
The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Warrantholder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement, including the fees for services, shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
Section 6.12. Force Majeure.
Notwithstanding anything to the contrary contained herein, the Warrant Agent will not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
[Remainder of page intentionally left blank]


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IN WITNESS WHEREOF, the parties have caused this Warrant Agreement to be duly executed as of the date first written above.
CONTURA ENERGY, INC.
by:    /s/ John DeGroote
Name: John DeGroote
Title: President and Secretary

[SIGNATURE PAGE TO WARRANT AGREEMENT]
    



COMPUTERSHARE INC., as Warrant Agent,
by    /s/ Neda Sheridan
Name: Neda Sheridan
Title:    Vice President

COMPUTERSHARE TRUST COMPANY, N.A., as Warrant Agent,
by     /s/ Neda Sheridan
Name: Neda Sheridan
Title: Vice President


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EXHIBIT A
FORM OF SERIES A WARRANT

FORM OF SERIES A WARRANT
[Global Warrant Legend]
[UNLESS THIS GLOBAL WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO CONTURA ENERGY, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL WARRANT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL WARRANT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT AGREEMENT REFERRED TO ON THE REVERSE HEREOF.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.


    



GLOBAL WARRANT
representing
SERIES A WARRANTS
to acquire shares of Common Stock of
CONTURA ENERGY, INC.
No. [ ]                                CUSIP No: [            ]
1.    Definitions. Unless the context otherwise requires, when used herein the following terms shall have the meanings indicated. Any capitalized terms used but not defined herein that are defined in the Warrant Agreement shall have the meanings set forth in the Warrant Agreement.
“Additional Cash” has the meaning ascribed to it in Section 12(F). “Affiliate” shall have the meaning ascribed to it in the Warrant Agreement.
“Agent Members” shall have the meaning ascribed to it in the Warrant Agreement.
“Appraisal” means an appraisal of the fair market value per share of Common Stock, determined by a Financial Expert in accordance with IRS Revenue Ruling 59-60 (without regard to lack of liquidity or application of discounts for minority interests).
“Board of Directors” or “Board” means the board of directors of the Company.
“business day” shall have the meaning ascribed to it in the Warrant Agreement.
“Capital Stock” means (A) with respect to any Person that is a corporation or company, any and all shares, interests, participations or other equivalents (however designated) of capital or capital stock of such Person and (B) with respect to any Person that is not a corporation or company, any and all partnership or other equity interests in such Person.
“Charter” means, with respect to any Person, its certificate or articles of incorporation, articles of association, or similar organizational document.
“Common Stock” means the Company’s common stock, $0.01 par value per share, subject to Section 12(E).
“Company” means Contura Energy, Inc., a Delaware corporation.
“Confirmation Order” means the Order Confirming Second Amended Joint Plan of Reorganization of Alpha Natural Resources, Inc., et al., Chapter 11 Case No. 15-33896 (KRH) dated as of July 12, 2016.

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“Current Appraisal” means, in respect of any Exercise Date:
(i)    if the Company elects to conduct an Appraisal pursuant to Section 20(C)(ii) in respect of such Exercise Date, such Appraisal;
(ii)    the Appraisal otherwise most recently delivered by the Company as of such Exercise Date or, if none, the Appraisal required to be delivered by the Company pursuant to Section 20(C)(i) in respect of such Exercise Date; and
(iii)    if the Appraisal that would otherwise be the Current Appraisal is disputed pursuant to Section 20(D), such Appraisal as determined by the arbitrator for such dispute.
“Custodian” shall have the meaning ascribed to it in the Warrant Agreement.
“Definitive Warrant” means a Warrant Certificate in definitive form that is not deposited with the Depositary or with the Custodian.
“Depositary” means The Depository Trust Company, its nominees and their respective successors.
“Determination Date” means, in respect of any Exercise Date for which the relevant Exercise Notice is not validly revoked:
(i)    if Physical Settlement is applicable, such Exercise Date; and
(ii)    if Net Settlement is applicable, (a) if Fair Market Value in respect of such Exercise Date is to be determined pursuant to clause (i) of the definition of Fair Market Value, the last day of the applicable Valuation Period, and (b) otherwise, the latest of (x) the thirtieth day following delivery of the relevant Current Appraisal, (y) the latest date for any election pursuant to Section 20(C) or 20(D) and (z) if any election is made pursuant to Section 20(C) or 20(D), the fifth business day following the determination of the Current Appraisal.
“Discounted Issuance” has the meaning set forth in Section 12(D). “Effective Price” means:
(i)    with respect to Common Stock acquired for cash, the per share amount of the net cash proceeds received by the Company for such Common Stock;
(ii)    with respect to Common Stock acquired for other consideration, the per share Fair Market Value of the net consideration received by the Company for such Common Stock;
(iii)    with respect to any option, warrant or other right to acquire Common Stock, whether direct or indirect and whether or not conditional or contingent, the sum of (a) the Fair Market Value of the aggregate consideration, if any, received by the Company for such option, warrant or right divided by the number of shares of Common Stock into which such option, warrant or right is exercisable at time of issuance, plus (b) the per share amount of the exercise

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price to the extent paid in cash and per share Fair Market Value of the exercise price if paid in other consideration; and
(iv)    with respect to securities convertible or exchangeable into Common Stock, (x) the net consideration per security paid for such securities (to the extent paid in cash) or the net Fair Market Value of the consideration per security paid for such securities if the price for such securities is paid in other consideration, as of the date of their issuance divided by (y) the number of shares of Common Stock per security for which such securities are convertible or exchangeable.
“Exchange” means the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a United States national or regional securities exchange, the principal other market on which the Common Stock is then traded.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Exchange Property” has the meaning ascribed to it in Section 12(E).
“Exercise Date” has the meaning set forth in Section 3.
“Exercise Notice” means a notice in the form attached hereto as Annex B delivered by the Warrantholder to the Company in accordance with Section 6.03 of the Warrant Agreement to exercise the Warrant.
“Exercise Period” has the meaning set forth in Section 3.
“Exercise Price” means $55.93 per Share subject to any adjustment or adjustments in accordance with Section 12 hereof.
“Expiration Time” has the meaning ascribed to in in Section 3.
“Fair Market Value” means:
(i)    in the case of shares of stock that are listed on a Principal Exchange and have been so listed for the ten trading days immediately preceding the relevant Exercise Date or other day as of which Fair Market Value is being determined, with respect to any Valuation Period, the arithmetic average of the daily volume-weighted average price of such stock as reported in composite transactions for United States exchanges and quotation systems for each Valuation Day in such Valuation Period, as displayed under the heading “Bloomberg VWAP” on the applicable Bloomberg page for such shares in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Valuation Day (or, if such volume-weighted average price is unavailable, the Fair Market Value of such shares as determined pursuant to clause (ii) below); provided that, with respect to any determination of Fair Market Value pursuant to this clause (i), the Company, in its good faith determination, shall make appropriate adjustments to such daily volume-weighted average prices to account for any

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adjustments to the Exercise Price and Warrant Share Number that become effective, or any event requiring any adjustments to the Exercise Price and Warrant Share Number where the record date, effective date, expiration date or issuance date, as the case may be, of the event occurs, during such Valuation Period.
(ii)    in the case of securities not covered by (i) above, the Fair Market Value of such securities shall be (a) for purposes of Section 4, the Current Appraisal in respect of the relevant Exercise Date and (b) for all other purposes hereunder, determined by a Financial Expert, using one or more valuation methods that such Financial Expert in its best professional judgment determines to be most appropriate, assuming such securities are fully distributed and are to be sold in an arm’s-length transaction and there was no compulsion on the part of any party to such sale to buy or sell and taking into account all relevant factors.
(iii)    in the case of cash, the amount thereof.
(iv)    in the case of other property, the Fair Market Value of such property shall be determined by a Financial Expert, using one or more valuation methods that such Financial Expert in its best professional judgment determines to be most appropriate, assuming such property is to be sold in an arm’s-length transaction and there was no compulsion on the part of any party to such sale to buy or sell and taking into account all relevant factors.
“Financial Expert” means a nationally recognized and independent investment banking or valuation firm selected in good faith by the Company.
“First Lien Lender Distribution” shall have the meaning ascribed to it in the Plan. “First Lien Lenders” shall have the meaning ascribed to it in the Plan.
“Fiscal Midpoint” means the date that ends the sixth month of any fiscal year of the Company.
“Global Warrant” means a Warrant Certificate in global form that is deposited with the Depositary or with the Custodian.
“Majority Holders” means, at any time, Warrantholders holding a majority of the then outstanding Warrants at such time.
“Market Disruption Event” means (i) a failure by the Exchange to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. New York City time on any day on which the Exchange is open for trading for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant Exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
“Net Settlement” has the meaning ascribed to it in Section 4(A).

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“Person” shall have the meaning ascribed to it in the Warrant Agreement. “Physical Settlement” has the meaning ascribed to it in Section 4(A).
“Plan” means the Second Amended Joint Plan of Reorganization of Alpha Natural Resources, Inc., et al., Chapter 11 Case No. 15-33896 (KRH), as confirmed by the Confirmation Order.
“Principal Exchange” means each of The New York Stock Exchange, The NASDAQ Global Market and The NASDAQ Global Select Market (or any of their respective successors).
“Qualified Second Lien Issuance” means any issuance of Common Stock, in an amount not to exceed 7.5% of the number of shares of Common Stock after giving effect to such issuance, to Second Lien Noteholders (as defined in the Plan) on terms consistent with the Second Lien Noteholder Settlement (as defined in the Plan).
“Qualifying Employee Stock” means any Common Stock and any options, warrants or other rights relating to Common Stock issued to any employee, former employee, director or consultant of the Company or any of its Affiliates pursuant to any plan, program, arrangement or agreement of the Company that is a compensatory stock ownership, stock purchase, stock option, stock appreciation right, restricted stock, restricted stock unit, phantom stock or other equity or equity-based compensation plan, program, arrangement or agreement or a bonus, pension, severance, change of control, deferred compensation, incentive compensation, profit sharing or savings plan, program, arrangement or agreement, including without limitation pursuant to any conversion, split, subdivision or consolidation of Common Stock or rights issued pursuant to any such plan, program, arrangement or agreement in each case adopted, or entered into, in the ordinary course of business (including in respect of new hires).
“Registry” shall have the meaning ascribed to it in the Warrant Agreement. “Reorganization” means any consolidation, merger, statutory share exchange or similar transaction, any sale, lease or other transfer to a third party of the consolidated assets of the Company and its Subsidiaries substantially as an entirety, or any recapitalization, reclassification or change of the Common Stock (other than reclassifications as described in Section 12(A)).
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Settlement Date” shall have the meaning ascribed to it in Section 5. “Shares” shall have the meaning ascribed to it in Section 2.
“Stipulation and Order” has the meaning ascribed to it in the Stipulation and Agreed Order Among the Debtors, the Agents, the Second Lien Parties and the Creditors' Committee (I) Waiving Exit Facility Condition to the Effective Date And (II) Granting Certain Related Relief entered on July 21, 2016 in the chapter 11 cases of Alpha Natural Resources, Inc., et al., Case No. 15-33896 (KRH) (Bankr. E.D. Va.).

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“Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or other entity (x) of which such Person or a subsidiary of such Person is a general partner or (y) of which a majority of the voting securities or other voting interests, or a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or persons performing similar functions with respect to such entity, is directly or indirectly owned by such Person and/or one or more subsidiaries thereof.
“trading day” means a day on which (i) no Market Disruption Event occurs and (ii) trading in the Common Stock generally occurs on the Exchange; provided that if the Common Stock is not so listed or traded, “trading day” means a business day.
“Transfer Agent” means Computershare Trust Company, N.A., as transfer agent of the Company, and any successor transfer agent.
“Underlying Common Stock” means the shares of Common Stock issuable or issued upon the exercise of the Warrants.
“Unit of Exchange Property” has the meaning set forth in Section 12(E).
“Valuation Day” means, with respect to any determination of Fair Market Value pursuant to clause (i) of the definition thereof, each trading day included in the applicable Valuation Period.
“Valuation Period” means, with respect to any determination of Fair Market Value pursuant to clause (i) of the definition thereof, the ten consecutive trading days immediately preceding the relevant Exercise Date or other day as of which Fair Market Value is being determined.
“Voting Securities” means the common stock and any other securities of a Person of any kind or class having power generally to vote in the election of directors.
“Warrant” means a right to acquire a number of shares of the Company’s Common Stock calculated pursuant to Section 4, which is designated as a Series A Warrant. References herein to “Warrant” shall include the Global Warrant where the context requires. For the avoidance of doubt, “Warrant” does not include any other warrants.
“Warrant Agent” has the meaning set forth in Section 17. “Warrant Agreement” has the meaning set forth in Section 17.
“Warrant Certificate” means a fully registered certificate evidencing Warrants. “Warrantholder” means a registered owner of Warrants as set forth in the Registry.
“Warrant Share Number” means one, as subsequently adjusted from time to time pursuant to the terms of this Warrant Certificate and the Warrant Agreement.

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2.    Number of Shares; Exercise Price. This certifies that, for value received, [Cede & Co.] 1 [            ] 2 , and any of its registered assigns, is the registered owner of [the number of Warrants set forth on Annex A hereto] 3 [        Warrants 4 ], each of which entitles the Warrantholder, upon exercise thereof pursuant to Section 3, to acquire from the Company a number of fully paid and nonassessable shares of Common Stock (each a “Share” and collectively the “Shares”) calculated pursuant to Section 4. The Warrant Share Number and the Exercise Price are subject to adjustment as provided herein, and unless otherwise specified, all references to “Warrant Share Number” and “Exercise Price” herein shall be deemed to include any such adjustment or series of adjustments.
3.    Exercise of Warrant; Term. Subject to Section 2, to the extent permitted by applicable laws and regulations, each Warrant is exercisable by the relevant Warrantholder, at any time or from time to time during the Exercise Period by (i) the surrender of such Warrant to the Warrant Agent and the delivery to the Warrant Agent of the Exercise Notice annexed hereto, duly completed and executed (or to the Company or to such other office or agency of the Company in the United States as the Company may designate by notice in writing to the Warrantholders pursuant to Section 19) and (ii) if such Warrantholder validly elects Physical Settlement in accordance with Section 4(A), paying to the Company the applicable Exercise Price. The “Exercise Period” shall commence upon the execution and delivery of this Warrant Certificate by the Company on the date hereof and shall continue up to and including the Expiration Time. The “Expiration Time” shall be 5:00 p.m. New York City time on the seventh anniversary of the date of execution and delivery of this Warrant Certificate or, if such day is not a business day, the next succeeding day that is a business day . The “Exercise Date” shall be the date on which a Warrantholder surrenders the Warrant and delivers an Exercise Notice in conformity with this Section 3 and, if applicable, pays the Exercise Price in conformity with this Section 3 (unless such surrender, delivery and payment (if applicable) occur after 5:00 p.m. New York City time on a business day or on a date that is not a business day, in which event the Exercise Date shall be the next following business day). In the case of a Global Warrant, any person with a beneficial interest in such Global Warrant shall effect compliance with the requirements of this Section 3 through the relevant Agent Members in accordance with the procedures of the Depositary.
In the case of a Global Warrant, whenever some but not all of the Warrants represented by such Global Warrant are exercised in accordance with the terms thereof and of the Warrant Agreement, such Global Warrant shall be surrendered by the Warrantholder to the Warrant Agent, which shall cause an adjustment to be made to Annex A to such Global Warrant so that the number of Warrants represented thereby will be equal to the number of Warrants theretofore represented by such Global Warrant less the number of Warrants then exercised. The Warrant Agent shall thereafter promptly return such Global Warrant to the Warrantholder or its nominee or custodian. In the case of a Definitive Warrant, whenever some but not all of the Warrants
1 Include for Global Warrant.
2 Include for Definitive Warrants.
3 Include for Global Warrant.
4 Include for Definitive Warrants.

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represented by such Definitive Warrant are exercised in accordance with the terms thereof and of the Warrant Agreement, the Warrantholder shall be entitled, at the request of such Warrantholder, to receive from the Company within a reasonable time, and in any event not exceeding five business days, a new Definitive Warrant in substantially identical form for the number of Warrants equal to the number of Warrants theretofore represented by such Definitive Warrant less the number of Warrants then exercised.
If this Warrant Certificate shall have been exercised in full, the Warrant Agent shall promptly cancel such certificate following its receipt from the Warrantholder or the Depositary, as applicable.
Notwithstanding anything in this Warrant Certificate to the contrary, in the case of Warrants evidenced by a Global Warrant, any Agent Member may, without the consent of the Warrant Agent or any other person, on its own behalf and on behalf of any beneficial owner for which it is acting, enforce, and may institute and maintain, any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, its right to exercise, and to receive Shares for, its Warrants as provided in the Global Warrant, and to enforce the Warrant Agreement.
A Warrantholder shall be deemed to own and have all of the rights associated with any Shares or other securities or property to which it is entitled pursuant to this Warrant Certificate as of the close of business on the relevant Determination Date upon the exercise of the Warrants in accordance with this Section 3 and Section 5 below.
The Exercise Price in connection with any Physical Settlement of a Warrant may be paid either by wire transfer of immediately available funds to an account designated by the Company or by certified or official bank check or bank cashier’s check payable to the order of the Company or, in respect of a Global Warrant, otherwise in accordance with the applicable procedures of the Depositary.
4.    Settlement.
(A)    Notwithstanding any provisions herein to the contrary, a Warrantholder that elects to exercise a Warrant shall elect to either (i) pay the applicable Exercise Price in respect of such Warrant to the Company (“Physical Settlement”) or (ii) net settle such Warrant in accordance with Section 4(C) in lieu of paying the Exercise Price (“Net Settlement”), by marking the applicable box in the relevant Exercise Notice or, in respect of a Global Warrant, otherwise in accordance with the applicable procedures of the Depositary; provided that a Physical Settlement election shall be invalid (and Net Settlement shall apply) if, as of the date of such Exercise Notice, the Confirmation Order does not provide that Section 1145 of Title 11, U.S. Code, as amended, is applicable to the Warrants and the shares of Common Stock underlying the Warrants.
(B)    In the event that a Warrantholder validly elects Physical Settlement in respect of any exercise of any Warrants evidenced by this Warrant Certificate in accordance with Sections 3 and 4(A) hereof, the Warrantholder shall receive, and the Company shall promptly issue to such

36
    


Warrantholder, a number of Shares for each Warrant so exercised equal to the Warrant Share Number.
(C)    In the event that Net Settlement applies in respect of any exercise of any Warrants evidenced by this Warrant Certificate in accordance with Sections 3 and 4(A) hereof, the Warrantholder shall receive, and the Company shall promptly issue to such Warrantholder, a number of Shares for each Warrant so exercised equal to the greater of (x) zero and (y) “X” as determined pursuant to the following formula:
X = Y x
(A - B)
A
Where:
Y = the Warrant Share Number (as of the Determination Date);
A = the Fair Market Value of one share of the Common Stock; and
B = the Exercise Price (as of the Determination Date).
The Company shall make all calculations under this Section 4, and the Warrant Agent shall have no duty or obligation to verify or confirm the Company’s calculations.
5.    Issuance of Shares; Authorization; Listing. Shares issued upon the exercise of Warrants evidenced by this Warrant Certificate shall be (i) issued in such name or names as the exercising Warrantholder may designate and (ii) delivered by the Transfer Agent to such Warrantholder or its nominee or nominees (A) if the Shares are delivered through the facilities of the Depositary, via book- entry transfer crediting the account of such Warrantholder (or the relevant Agent Member for the benefit of such Warrantholder) through the Depositary’s DWAC system (if the Transfer Agent participates in such system), or (B) otherwise in certificated form by physical delivery to the address specified by the Warrantholder in the Exercise Notice. The Company shall use its commercially reasonable efforts to cause its Transfer Agent to be a participant in the Depositary’s DWAC system. The Company shall cause the number of full Shares to which such Warrantholder shall be entitled to be so delivered by the Transfer Agent within a reasonable time, and in any event on or prior to the fourth business day after the applicable Determination Date (such date of delivery, the “Settlement Date”).
The Company hereby represents, warrants and covenants that any Shares issued upon the exercise of Warrants evidenced by this Warrant Certificate in accordance with the provisions of Sections 3, 4 and 5 will be duly and validly authorized and issued, fully paid and nonassessable and free from all taxes, liens and charges (other than liens or charges created by a Warrantholder, income and other taxes based on income or gain incurred in connection with the exercise of the Warrant or taxes in respect of any transfer occurring contemporaneously therewith). The Company agrees that the Shares so issued will be deemed to have been issued to a Warrantholder for all purposes as of the close of business on the applicable Determination Date, notwithstanding that the stock transfer books of the Company may then be closed or certificates

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representing such Shares may not be actually delivered on such date. The Company will at all times reserve and keep available, out of its authorized but unissued Common Stock, solely for the purpose of providing for the exercise of Warrants evidenced by this Warrant Certificate, the aggregate Warrant Share Number for all Warrants evidenced by this Warrant Certificate. The Company will (A) procure, at its sole expense, the listing of the Shares issuable upon exercise of the Warrants evidenced by this Warrant Certificate, subject to issuance or notice of issuance, on all principal stock exchanges on which the Common Stock is then listed or traded and (B) maintain such listings of such Shares after issuance. The Company will use its reasonable best efforts to ensure that the Shares may be issued without violation of any law or regulation applicable to the Company or of any requirement of any securities exchange applicable to the Company on which the Shares are listed or traded.
6.    No Fractional Shares or Scrip. No fractional Shares or scrip representing fractional Shares shall be issued upon any exercise of Warrants evidenced by this Warrant Certificate. In lieu of any fractional Share to which a Warrantholder would otherwise be entitled upon an exercise of Warrants, such Warrantholder shall be entitled to receive a cash payment equal to the value of such fractional Share based on the Fair Market Value of the Common Stock as of the applicable Determination Date. The number of full Shares that shall be issuable upon an exercise of Warrants by a Warrantholder at any time shall be computed on the basis of the aggregate number of Shares which may be issuable pursuant to the Warrants being exercised by that Warrantholder at that time. The beneficial owners of the Warrants and the Warrantholder, by their acceptance hereof, expressly agree to receive cash in lieu of any fractional Share in accordance with this Section 6 and hereby waive their right to receive a physical certificate representing such fractional Share or any physical Warrant Certificate representing a fractional Warrant upon exercise of any Warrant.
Whenever a payment for fractional Shares is to be made by the Warrant Agent under any section of this Warrant Certificate or the Warrant Agreement, the Company shall (i) provide to the Warrant Agent in reasonable detail the facts related to such payments and the prices and/or formulas utilized in calculating such payments, and (ii) provide sufficient monies to the Warrant Agent in the form of fully collected funds to make such payments.
7.    No Rights as Stockholders; Transfer Books. Warrants evidenced by this Warrant Certificate do not entitle the Warrantholder or the owner of any beneficial interest in such Warrants to any voting rights or other rights as a stockholder of the Company prior to the applicable Determination Date. The Company will at no time close its transfer books against transfer of the Warrants in any manner which interferes with the timely transfer and exercise of the Warrants.
8.    Charges, Taxes and Expenses. Issuance of Shares in certificated or book-entry form to a Warrantholder upon the exercise of Warrants evidenced by this Warrant Certificate shall be made without charge to the Warrantholder for any issue or transfer tax or other incidental expense in respect of the issuance of such Shares (other than income and other taxes based on income or gain incurred in connection with the exercise of the Warrant or taxes in respect of any

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transfer occurring contemporaneously therewith), all of which taxes and expenses shall be paid by the Company.
9.    Transfer/Assignment. Subject to compliance with applicable securities laws, this Warrant Certificate and all rights hereunder are transferable, in whole or in part, upon the books of the Company (or an agent duly appointed by the Company) by the registered holder hereof in person or by duly authorized attorney, and one or more new Warrant Certificates shall be made and delivered by the Company, of the same tenor and date as this Warrant Certificate but registered in the name of one or more transferees, upon surrender of this Warrant Certificate, duly endorsed, to the office or agency of the Company described in Section 3; provided that if this Warrant Certificate is a Global Warrant registered in the name of the Depositary, transfers of such Global Warrant may only be made in accordance with the Warrant Agreement. All expenses (other than stock transfer taxes) and other charges payable in connection with the preparation, execution and delivery of the new Warrant Certificate pursuant to this Section 9 shall be paid by the Company, but the Company may require a Warrantholder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Warrantholder of new Warrant Certificate issued upon such transfer being different from the name of the Warrantholder of the old Warrant Certificate surrendered for transfer.
If this Warrant Certificate is a Global Warrant, then so long as the Global Warrant is registered in the name of the Depositary, (a) the holders of beneficial interests in the Warrants evidenced thereby shall have no rights under this Warrant Certificate with respect to the Global Warrant held on their behalf by the Depositary or the Custodian, and (b) the Depositary may be treated by the Company, the Warrant Agent and any agent of the Company or the Warrant Agent as the absolute owner of the Global Warrant for all purposes whatsoever, except, in each case, to the extent set forth herein.
Accordingly, any such owner’s beneficial interest in the Global Warrant will be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or the Agent Members, and neither the Company nor the Warrant Agent shall have any responsibility with respect to such records maintained by the Depositary or the Agent Members. Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (ii) impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Warrant. Except as otherwise may be provided in this Warrant Certificate or the Warrant Agreement, the rights of beneficial owners in a Global Warrant shall be exercised through the Depositary subject to the applicable procedures of the Depositary. Any holder of the Global Warrant shall, by acceptance of the Global Warrant, agree that transfers of beneficial interests in the Global Warrant may be effected only through a book-entry system maintained by the Depositary, and that ownership of a beneficial interest in the Warrants represented thereby shall be required to be reflected in book-entry form.

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A Global Warrant shall be exchanged for Definitive Warrants, and Definitive Warrants may be transferred or exchanged for a beneficial interest in a Global Warrant, only at such times and in the manner specified in the Warrant Agreement. The holder of a Global Warrant may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold beneficial interests in such Global Warrant through Agent Members, to take any action that a Warrantholder is entitled to take under a Warrant or the Warrant Agreement.
10.    Exchange of Warrants. This Warrant Certificate is exchangeable, upon the surrender hereof by the Warrantholder to the Warrant Agent, for a new Warrant Certificate or Warrant Certificates of like tenor and representing the same aggregate number of Warrants.
11.    Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a business day, then such action may be taken or such right may be exercised on the next succeeding day that is a business day.
12.    Adjustments and Other Rights. The Exercise Price and the Warrant Share Number shall be subject to adjustment from time to time as set forth in this Section 12; provided that no single event shall be subject to adjustment under more than one subsection of this Section 12 (other than in the case of a dividend or distribution of different types of property, in which case Section 12(A) or 12(B) shall apply to the appropriate parts of each such dividend or distribution); provided further that any issuance of Common Stock upon exercise of the Warrants shall not itself give rise to any adjustment under this Section 12.
(A)    Adjustments upon Certain Transactions. The Exercise Price and Warrant Share Number shall be adjusted pursuant to the formulas below in the event the Company (i) pays a dividend or makes any other distribution with respect to its Common Stock solely in shares of its Common Stock,
(ii)    subdivides or reclassifies its outstanding shares of Common Stock into a greater number of shares or
(iii)    combines or reclassifies its outstanding shares of Common Stock into a smaller number of shares. Such adjustments shall become effective (x) in the case of clause (i) above, at the close of business on the record date for such dividend or distribution or (y) in the case of clause (ii) or (iii) above, at the open of business on the effective date of such event. In the event that a dividend or distribution described in clause (i) above is not so paid or made, the Exercise Price and the Warrant Share Number shall be readjusted, effective as of the date when the Board of Directors determines not to make such dividend or distribution, as the case may be, to be the Exercise Price and the Warrant Share Number that would be in effect if such record date had not been fixed.

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Ua  = Ub x
Oa
Ob
 
 
Pa = Pb x
Ob
Oa
Where:
Ub = Warrant Share Number before the adjustment
Ua = Warrant Share Number after the adjustment
Pb = Exercise Price before the adjustment
Pa = Exercise Price after the adjustment
Ob = Shares of Common Stock outstanding immediately before the transaction in question
Oa = Shares of Common Stock outstanding after the transaction in question
(B)    Certain Dividends and Distributions. If the Company shall fix a record date for the payment of a dividend or the making of a distribution with respect to the Common Stock of shares of securities, evidences of indebtedness, assets, cash, rights or warrants (other than dividends of shares of Common Stock for which an adjustment is made pursuant to paragraph Section 12(A) or any other dividends or distributions for which an adjustment is made pursuant to paragraph 12(D)), the Exercise Price and Warrant Share Number shall be adjusted pursuant to the formulas below. Such adjustments shall become effective at the close of business on the record date for such dividend or distribution. In the event that such dividend or distribution is not so paid or made, the Exercise Price and the Warrant Share Number shall be readjusted, effective as of the date when the Board of Directors determines not to make such dividend or distribution, as the case may be, to be the Exercise Price and the Warrant Share Number that would be in effect if such record date had not been fixed.
Ua  = Ub x
M
M - D
 
 
Pa = Pb x
M - D
M
Where:
Ub = Warrant Share Number before the adjustment
Ua = Warrant Share Number after the adjustment

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Pb = Exercise Price before the adjustment
Pa = Exercise Price after the adjustment
M = Fair Market Value per share of Common Stock determined as of the record date
D = Fair Market Value of the dividend or distribution made per share of Common Stock
(C)    Tender Offers. If a publicly-announced tender offer made by the Company or any of its Subsidiaries for the Common Stock (other than a Reorganization described in Section 12(E)) shall be consummated, to the extent that the cash and Fair Market Value of any other consideration included in the payment per share of Common Stock exceeds the Fair Market Value of the Common Stock as of the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such a tender offer, then the Exercise Price and the Warrant Share Number shall be adjusted pursuant to the formulas below, provided that the Exercise Price shall not be increased (and the Warrant Share Number shall not be decreased) as a result of this Section 12(C). Such adjustments shall be determined on the date on which such tender offer is consummated, but shall become effective as of the date on which such tender offer expires.
Ua  = Ub x
Oa x M
(Ob x M) - E
 
 
Pa = Pb x
(Ob x M) - E
MOa x M
Where:
Ub = Warrant Share Number before the adjustment
Ua = Warrant Share Number after the adjustment
Pb = Exercise Price before the adjustment
Pa = Exercise Price after the adjustment
M = Fair Market Value per share of the Common Stock as of the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such tender offer
E = the aggregate Fair Market Value of all cash and any other consideration paid or payable for shares of Common Stock in the tender offer
Ob = Shares of Common Stock outstanding immediately before consummation of such tender offer

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Oa = Shares of Common Stock outstanding immediately after giving effect to such tender offer
(D)    Discounted Issuances. Except to the extent an adjustment in respect of such transaction is made in accordance with Section 12(E) below, in case of any transaction in which the Company issues any shares of Common Stock, rights or options to acquire Common Stock or securities convertible or exchangeable into Common Stock (other than (x) Qualifying Employee Stock or (y) a Qualified Second Lien Issuance) for an Effective Price that is lower than the Exercise Price on the business day immediately prior to the date of pricing of such transaction (each, a “Discounted Issuance”), (1) the Exercise Price effective immediately following such Discounted Issuance shall be determined by multiplying the Exercise Price in effect immediately prior to such adjustment by a fraction, the numerator of which is the sum of (x) the number of shares of Common Stock outstanding at the close of business on the business day immediately prior to the date of pricing of the Discounted Issuance plus (y) the total number of shares of Common Stock that the aggregate Effective Price would purchase at the Exercise Price per Share on such business day, and the denominator of which is the sum of (x) the number of shares of Common Stock outstanding at the close of business on the business day immediately prior to the date of pricing of the Discounted Issuance plus (y) the total number of shares of Common Stock offered for subscription or purchase or into which such rights, options or convertible or exchangeable securities are exercisable, convertible or exchangeable, as the case may be, pursuant to the Discounted Issuance, and (2) the Warrant Share Number effective immediately following such Discounted Issuance shall be determined by multiplying the Warrant Share Number in effect immediately prior to such adjustment by a fraction, the numerator of which is the sum of (x) the number of shares of Common Stock outstanding at the close of business on the business day immediately prior to the date of pricing of the Discounted Issuance plus (y) the total number of shares of Common Stock offered for subscription or purchase or into which such rights, options or convertible or exchangeable securities are exercisable, convertible or exchangeable, as the case may be, pursuant to the Discounted Issuance, and the denominator of which is the sum of (x) the number of shares of Common Stock outstanding at the close of business on the business day immediately prior to the date of pricing of the Discounted Issuance plus (y) the total number of shares of Common Stock that the aggregate Effective Price would purchase at the Exercise Price per Share on such business day. For the avoidance of doubt, the adjustment contemplated by this section can be expressed by formula as follows:
Ua  = Ub x
Ob + 1
Ob + F
 
 
Pa = Pb x
Ob + F
Ob + 1
Where:
Ub = Warrant Share Number before the adjustment
Ua = Warrant Share Number after the adjustment

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Pb = Exercise Price per Share before the adjustment
Pa = Exercise Price per Share after the adjustment
F = Shares of Common Stock that aggregate Effective Price could purchase at the Exercise Price per Share on the business day immediately prior to the date of pricing of the Discounted Issuance
I = number of shares of Common Stock issued or deemed issued
Ob = Shares of Common Stock outstanding at the close of business on the business day immediately prior to the date of pricing of the Discounted Issuance.
For the avoidance of doubt, in no event shall the Exercise Price be increased or the Warrant Share Number be decreased as a result of this Section 12(D). Any adjustment made pursuant to this Section 12(D) shall become effective at the close of business on the date of pricing for the Discounted Issuance. To the extent that shares of Common Stock, rights, options or convertible or exchangeable securities are not issued, the Exercise Price and Warrant Share Number shall be readjusted, effective as of the date when the Board of Directors determines not to make such issuance, to be the Exercise Price and the Warrant Share Number that would be in effect if the Discounted Issuance had not been priced. To the extent that shares of Common Stock are not delivered after the expiration of such rights or options, or maturity of such convertible or exercisable securities, as the case may be, the Exercise Price and Warrant Share Number shall be readjusted to the Exercise Price and Warrant Share Number that would then be in effect had the adjustment with respect to the issuance of such rights, options or convertible or exchangeable securities been made on the basis of delivery of only the number of shares of Common Stock actually delivered.
(E)    Reorganizations. In the case of any Reorganization in which the Common Stock is converted into or exchanged for or becomes the right to receive cash, securities or other property (“Exchange Property”), then, following the effective time of such Reorganization, a Warrantholder’s right to receive Shares upon exercise of the Warrants evidenced by this Warrant Certificate shall be converted into the right to exercise such Warrants to acquire, with respect to each share of Common Stock that would have otherwise been deliverable hereunder, the type and amount of Exchange Property that the holder of one Share would have been entitled to receive in such Reorganization (a “Unit of Exchange Property”); provided that if the Exchange Property consists solely of cash, on the effective date of such Reorganization, each Warrantholder shall receive, in respect of each Warrant it holds, at the same time and upon the same terms as holders of Common Stock receive the cash in exchange for their shares of Common Stock, an amount of cash equal to the greater of (i) (x) the amount of cash that such Warrantholder would have received if such Warrantholder owned, as of the record date for such Reorganization, a number of shares of Common Stock equal to the Warrant Share Number in effect on such record date, minus (y) the Exercise Price multiplied by the Warrant Share Number and (ii) USD 0, and upon the Warrantholder’s receipt of such cash (if any) in respect of such Warrant, such Warrant shall be deemed to have been exercised in full and cancelled. With respect to any exercise of Warrants following the effective time of such Reorganization, the number of Units of Exchange Property

44
    


issuable upon exercise of a Warrant shall be calculated pursuant to Section 4; provided that, with respect to each Exercise Date and Valuation Day following such Reorganization, each reference in Section 4 to a “Share” or a “share of Common Stock” shall be deemed to refer to a Unit of Exchange Property.
In the case of any Reorganization in which holders of Common Stock may make an election as between different types of Exchange Property, a Warrantholder shall be deemed to have elected to receive upon exercise of the Warrants (unless Majority Holders otherwise notify the Company), first, Voting Securities, second, cash, and third other securities or property. The Company shall not effect any Reorganization unless the Company first shall have made appropriate provision to ensure that applicable provisions of this Warrant Certificate (including, without limitation, the provisions of this Section 12) shall immediately after giving effect to such Reorganization be assumed by and binding on the other party to the Reorganization (or the successor, parent company and/or issuer of such Exchange Property, as appropriate) and applicable to any Exchange Property deliverable upon the exercise of Warrants, pursuant to a customary assumption agreement in form and substance reasonably satisfactory to Majority Holders. Any such assumption agreement shall also include any amendments to this Warrant Certificate necessary to effect the changes to the terms of the Warrants described in this Section 12(E) and preserve the intent of the provisions of this Warrant Certificate (including, without limitation, the adjustment provisions in this Section 12). The provisions of this Section 12(E) shall similarly apply to successive Reorganizations.
The Company shall notify the Warrant Agent of any such proposed Reorganization reasonably prior to the consummation thereof so as to provide the Warrantholders with a reasonable opportunity to confirm compliance with the terms hereof and, if they elect, to exercise the Warrant in accordance with the terms and conditions hereof prior to consummation of the Reorganization, and the Company shall cause such notice to be sent or communicated to the Warrantholders and holders of a beneficial interest in a Global Warrant in the manner set forth in Section 19 hereof; provided that in the case of a transaction which requires notice to be given to the holders of Common Stock of the Company, the Warrant Agent and the Warrantholders shall be provided the same notice given to the holders of Common Stock of the Company.
(F)    Changes in Distribution Cash. If any additional cash (or cash equivalent) portion of the First Lien Lender Distribution is distributed to the First Lien Lenders subsequent to the calculation (in accordance with the Plan) of the Exercise Price as initially set forth herein (any such additional cash (or cash equivalent), “Additional Cash”), including as contemplated by the Stipulation and Order, and the then-current Exercise Price was calculated without taking into account such Additional Cash, then the Exercise Price shall be adjusted, effective as of the date such Additional Cash is distributed to the First Lien Lenders, to an amount equal to the Exercise Price that would have been calculated (in accordance with the Plan) and initially set forth herein as of the date of issuance had the cash (or cash equivalent) portion of the First Lien Lender Distribution reflected all Additional Cash as of the date of the original calculation (with such adjustment, for the avoidance of doubt, taking into account any previous adjustments to the Exercise Price pursuant to the terms hereof).

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(G)    Certain Other Events. If the Company takes any action affecting the Common Stock, other than actions described in this Section 12, and in the opinion of the Board of Directors, in its sole discretion, such action would materially adversely affect the exercise rights of the Warrantholders, then the Exercise Price for the Warrants and/or the Warrant Share Number shall be adjusted, to the extent permitted by law, in such a manner and at such time as the Board of Directors may determine in good faith to be equitable in the circumstances.
(H)    Rounding of Calculations; Minimum Adjustments. All calculations under this Section 12 shall be made to the nearest one-tenth (1/10th) of a cent or to the nearest one-hundredth (1/100th) of a share, as the case may be. Any provision of this Section 12 to the contrary notwithstanding, no adjustment in the Exercise Price or the Warrant Share Number shall be made if the amount of such adjustment would be less than $0.01 or one-tenth (1/10th) of a share of Common Stock, but any such amount shall be carried forward and an adjustment with respect thereto shall be made at the time of and together with any subsequent adjustment which, together with such amount and any other amount or amounts so carried forward, shall aggregate $0.01 or 1/10th of a share of Common Stock, or more, or on exercise of a Warrant if it shall earlier occur.
(I)    Notice of Adjustment. Whenever the Warrant Share Number, the number of shares of stock or property other than Common Stock issuable upon the exercise of the Warrants or the Exercise Price is adjusted, or the type of securities or property to be delivered upon exercise of the Warrants is changed, as herein provided, the Company shall deliver to the Warrant Agent a notice of such adjustment or adjustments and shall deliver to the Warrant Agent a statement setting forth the Warrant Share Number, the number and type of shares of stock or property other than Common Stock issuable upon the exercise of a Warrant and the Exercise Price after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made, and the Company shall cause such notice and statement to be sent or communicated to the Warrantholders and holders of a beneficial interest in a Global Warrant in the manner set forth in Section 19 hereof. Any failure by the Company to deliver such notice shall not affect the validity of the relevant adjustments.
(J)    Notice of Action. In the event that the Company shall propose to take any action of the type described in this Section 12 (but only if the action of the type described in this Section 12 would result in an adjustment in the Exercise Price or the Warrant Share Number or a change in the type of securities or property to be delivered upon exercise of a Warrant), the Company shall deliver to the Warrant Agent a notice and shall cause such notice to be sent or communicated to the Warrantholders and holders of a beneficial interest in a Global Warrant in the manner set forth in Section 19 hereof, which notice shall specify the record date, if any, with respect to any such action and the approximate date on which such action is to take place. Such notice shall also set forth the facts with respect thereto as shall be reasonably necessary to indicate the effect on the Exercise Price and the number, kind or class of shares or other securities or property which shall be deliverable upon exercise of a Warrant. In the case of any action which would require the fixing of a record date, such notice shall be given at least 10 days prior to the date so fixed, and in case of all other action, such notice shall be given at least 15

46
    


days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action.
(K)    Adjustment Rules. If an adjustment in Exercise Price made hereunder would reduce the Exercise Price to an amount below $0.01 then such adjustment in Exercise Price made hereunder shall reduce the Exercise Price to $0.01 and not lower.
(L)    Proceedings Prior to Any Action Requiring Adjustment. As a condition precedent to the taking of any action which would require an adjustment pursuant to this Section 12, the Company shall take any action which may be necessary, including obtaining regulatory, New York Stock Exchange, NASDAQ Global Market, NASDAQ Global Select Market or other applicable national securities exchange or stockholder approvals or exemptions, in order that the Company may thereafter validly and legally issue as fully paid and nonassessable all Shares that a Warrantholder is entitled to receive upon exercise of a Warrant pursuant to Section 4, after giving effect to the adjustment that would be made under this Section 12.
13.    Notice of Dividends and Distributions. At any time when the Company declares any dividend or other distribution on its Common Stock and the Company’s Common Stock is not listed on a national securities exchange, it shall give notice to the Warrant Agent of any such declaration not less than 15 days prior to the related record date for payment of the dividend or distribution so declared and shall cause such notice to be sent or communicated to the Warrantholders and holders of a beneficial interest in a Global Warrant in the manner set forth in Section 19 hereof.
14.    No Impairment. The Company will not, by amendment of its Charter or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant Certificate and in taking of all such action as may be necessary or appropriate in order to protect the rights of the Warrantholders.
15.    Governing Law. This Warrant Certificate and the Warrants evidenced hereby will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State.
16.    Binding Effect; Countersignature by Warrant Agent. This Warrant Certificate shall be binding upon any successors or assigns of the Company. This Warrant Certificate shall not be valid until an authorized signatory of the Warrant Agent (as defined below) or its agent as provided in the Warrant Agreement (as defined below) countersigns this Warrant Certificate. Such signature shall be solely for the purpose of authenticating this Warrant Certificate and shall be conclusive evidence that this Warrant Certificate has been countersigned under the Warrant Agreement.
17.    Warrant Agreement; Amendments. This Warrant Certificate is issued under and in accordance with a Warrant Agreement dated as of July 26, 2016 (the “Warrant Agreement”),

47
    


between the Company and Computershare Trust Company, N.A. and Computershare Inc. (collectively, the “Warrant Agent,” which term includes any successor Warrant Agent under the Warrant Agreement), and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the beneficial owners of the Warrants and the Warrantholders consent by acceptance hereof. The Warrant Agreement is hereby incorporated herein by reference and made a part hereof. Reference is hereby made to the Warrant Agreement for a statement of the respective rights, limitations of rights, duties and obligations of the Company, the Warrant Agent and the Warrantholders and beneficial owners of the Warrants. A copy of the Warrant Agreement may be obtained for inspection by the Warrantholders upon written request to the Warrant Agent at the address of the Warrant Agent (or successor warrant agent) set forth in the Warrant Agreement. The Warrant Agreement and this Warrant Certificate may be amended and supplemented and the observance of any term of the Warrant Agreement or this Warrant Certificate may be waived only to the extent provided in the Warrant Agreement.
18.    Prohibited Actions. The Company agrees that it will not take any action which would entitle the Warrantholders to an adjustment of the Exercise Price if the aggregate Warrant Share Number after such action for the Warrants evidenced by this Warrant Certificate, together with all shares of Common Stock then outstanding and all shares of Common Stock then issuable upon the exercise of, or underlying, all outstanding options, warrants, conversion and other rights (without duplication), would exceed the total number of shares of Common Stock then authorized by its Charter.
19.    Notices. Unless this Warrant Certificate is a Global Warrant, any notice or communication mailed to the Warrantholders shall be mailed to each Warrantholder at the Warrantholder’s address as it appears in the Registry and shall be sufficiently given if so mailed within the time prescribed. Any notice to holders of a beneficial interest in a Global Warrant shall be distributed through the Depositary in accordance with the procedures of the Depositary. Communications to such holders shall be deemed to be effective at the time of dispatch to the Depositary.
20.    Annual Statements and Appraisals.
(A)    Annual Statements. If, as of the last day of any fiscal year of the Company, the Common Stock is not listed on a Principal Exchange, then, within 90 days after the last day of such fiscal year, the Company shall deliver to the Warrant Agent and each Warrantholder annual audited financial statements of the Company, which shall include, without limitation, (A) a calculation of EBITDA with a reconciliation to the audited operating and cash flow statements and (B) a management discussion and analysis of the Company consistent with the requirements of Regulation S-K under the Exchange Act for such fiscal year.
(B)    Appraisals.
(i)    If the Common Stock is not listed on a Principal Exchange as of the last day of any fiscal year of the Company, then, within 90 days after such day, the Company shall deliver to the Warrant Agent and each Warrantholder an Appraisal as of the last day of such fiscal year.

48
    


(ii)    If the Common Stock is not listed on a Principal Exchange as of any Fiscal Midpoint that occurs on or after the fourth anniversary of the date of the Warrant Agreement, then, within 45 days after such Fiscal Midpoint, the Company shall deliver to the Warrant Agent and each Warrantholder an Appraisal as of such Fiscal Midpoint.
(iii)    If (x) the Common Stock is not listed on a Principal Exchange as of any day in a fiscal year after the Fiscal Midpoint for such fiscal year and (y) such Fiscal Midpoint is prior to the fourth anniversary of the date of the Warrant Agreement, then, upon request by any Warrantholder to the Company on such day, the Company shall deliver to the Warrant Agent and each Warrantholder, within 45 days of such request, an Appraisal as of such Fiscal Midpoint; provided that in no event shall the Company be required to complete more than one Appraisal pursuant to this Section 20(B)(iii) in respect of any Fiscal Midpoint.
(C)    Appraisals Following an Exercise Date.
(i)    If, as of any Exercise Date for which a Current Appraisal is required to determine Fair Market Value, where such Exercise Date occurs prior to the first triggered requirement to deliver an Appraisal pursuant to Section 20(B), the Company shall deliver an Appraisal to the Warrant Agent and each Warrantholder as promptly as practicable following such Exercise Date.
(ii)    Within ten days of any Exercise Date for which a Current Appraisal is required to determine Fair Market Value, the Company may elect, by notice to the Warrant Agent and each Warrantholder, to have an Appraisal conducted for purposes of determining Fair Market Value in respect of such Exercise Date, and shall deliver such Appraisal to the Warrant Agent and each Warrantholder as promptly as practicable following such notice; provided that the Company shall not make an election pursuant to this Section 20(C)(ii) more than twice in any 90-day period.
(iii)    Notwithstanding anything herein to the contrary, in respect of any exercise of Warrants (x) for which Section 20(C)(i) applies, (y) where the Company makes an election pursuant to Section 20(C)(ii), or (z) where the Current Appraisal is determined pursuant to Section 20(D), then, in each such case any such exercising Warrantholder shall have the right to revoke its Exercise Notice until 5:00 p.m. New York City time on the tenth business day immediately following the date an Appraisal is delivered, by notice to the Company and the Warrant Agent, specifying: (1) the number of Warrants with respect to which such notice of revocation is being submitted, (2) if Definitive Warrants have been issued, the certificate number of the Warrant(s) in respect of which such notice of withdrawal is being submitted, and (3) the number, if any, of Warrants that remain subject to the original Exercise Notice; provided that if the Warrants are Global Warrants, the notice must comply with appropriate procedures of the Depositary.
(D)    Disputes. Any Warrantholder(s) may dispute any Appraisal by notice to the Warrant Agent and the Company within 30 days following the delivery of such Appraisal to the Warrantholders. If any Appraisal is so disputed, the Board shall appoint an independent valuation firm (which, for the avoidance of doubt, may not be the Financial Expert that conducted the disputed Appraisal) as an independent arbitrator to resolve such dispute. Such arbitrator’s determination of the Appraisal shall be final and binding in respect of all Warrants.

49
    


(E)    Expenses. The expense of any Appraisal delivered pursuant to Section 20(B)(i), 20(B)(ii) or 20(C) shall be borne by the Company. The reasonable expense of any Appraisal delivered pursuant to Section 20(B)(iii) shall be shared equally by the Company, on the one hand, and the Warrantholder(s) requesting such Appraisal, on the other hand. The expense of any dispute pursuant to Section 20(D) shall be shared equally by the Company, on the one hand, and the Warrantholder(s) that raised such dispute, on the other hand.

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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed by a duly authorized officer. This Warrant Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Warrant Agent.
Dated: [    ]

CONTURA ENERGY, INC.
By:
Name:
Title:

Countersigned by:
COMPUTERSHARE INC., as Warrant Agent
By:
Authorized Signatory

COMPUTERSHARE TRUST COMPANY, N.A., as Warrant Agent
By:
Authorized Signatory



[SIGNATURE PAGE TO WARRANT CERTIFICATE]
    


Annex A
[Annex A to Global Warrant] 1
The initial number of Warrants represented by the Global Warrant is [    ].
The following decreases in the number of Warrants represented by this Global Warrant have been made as a result of the exercise, cancellation, exchange or redemption of certain Warrants represented by this Global Warrant:
Date of Exercise/Cancellation/Exchange of Warrants
Number of Warrants Exercised/Cancelled/Exchanged
Total Number of Warrants Represented Hereby Following Such Exercise/Cancellation/Exchange
Notation Made by Warrant Agent/Custodian
 
 
 
 

1 Include if the Warrant is a Global Warrant.


    



ANNEX B
FORM OF EXERCISE NOTICE
(TO BE EXECUTED ONLY UPON EXERCISE OF SERIES A WARRANTS)
DATE:    ___________, 20__
TO:    Computershare Inc.
250 Royall Street
Canton, Massachusetts 02021
Attn: General Counsel
RE:    Election to Purchase Common Stock
The undersigned registered holder of [    ] Series A Warrants irrevocably elects to exercise the number of Series A Warrants set forth below represented by the Global Warrant (or, in the case of a Definitive Warrant, the Warrant Certificate enclosed herewith), and surrenders all right, title and interest in the number of Series A Warrants exercised hereby to the Company, and directs that the shares of Common Stock or other securities or property delivered upon exercise of such Series A Warrants, and any interests in the Global Warrant or Definitive Warrant representing unexercised Series A Warrants, be registered or placed in the name and at the address specified below and delivered thereto.
Number of Series A Warrants:     
Warrantholder:     
By:    
Name:     
Title:    
Settlement:     £ Physical Settlement and payment of $    by wire transfer of immediately available funds
£ Physical Settlement and payment of $    by certified or official bank or bank cashier’s check
£ Net Settlement
Signature guaranteed by*:

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* The signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level reasonably acceptable to the Company’s transfer agent.
Securities and/or check to be issued to:
If in book-entry form through the Depositary:
Depositary Account Number:     
Name of Agent Member:     
If in definitive form:
Social Security Number
or Other Identifying Number:     
Name:     
Street Address:     
City, State and Zip Code:     
Any unexercised Series A Warrants evidenced by the exercising Warrantholder’s interest in the Global Warrant or Definitive Warrant, as the case may be, to be issued to:
If in book-entry form through the Depositary:
Depositary Account Number:     
Name of Agent Member:     
If in definitive form:
Social Security Number
or Other Identifying Number:     
Name:     
Street Address:     
City, State and Zip Code:     

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ANNEX C
Form of Assignment
For value received, the undersigned registered Warrantholder of the within Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s) named below (including the undersigned with respect to any Series A Warrants constituting a part of the Series A Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right, title and interest of the undersigned under the within Warrant Certificate with respect to the number of Series A Warrants set forth below and does irrevocably constitute and appoint [    ], the undersigned’s attorney, to make such transfer on the books of the Company maintained for the purpose, with full power of substitution in the premises.
Name of Assignees
Address
Number of Warrants
Social Security Number or other Identifying Number
 
 
 
 
 
 
 
 

Dated:

Holder:     
By:     
Name:     
Title:     

Signature guaranteed by*:
* The signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level reasonably acceptable to the Company’s transfer agent.

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Exhibit 10.30
EXECUTION VERSION







TRANSITION SERVICES AGREEMENT

by and among

CONTURA ENERGY, INC.,
ALPHA NATURAL RESOURCES, INC.

and
ANR, INC.


Dated as of July 26, 2016





























TRANSITION SERVICES AGREEMENT

THIS TRANSITION SERVICES AGREEMENT (this “ Agreement ”) is entered into as of July 26, 2016, by and among Contura Energy, Inc., a Delaware corporation (“ Contura Energy ”), Alpha Natural Resources, Inc., a Delaware corporation (“ Alpha Natural Resources ”), and ANR, Inc., a Delaware corporation (“ ANR ”), each a “ Party ” and together, the “ Parties .”

RECITALS:

WHEREAS, Contura Energy agreed to purchase certain assets (the “ Purchased Assets ”) and assume certain liabilities (the “ Assumed Liabilities ”) of Alpha Natural Resources and its Subsidiaries upon the terms and subject to the conditions set forth in that certain Asset Purchase Agreement dated as of July 26, 2016 by and among Contura Energy, Alpha Natural Resources, the subsidiaries of Alpha Natural Resources set forth on Schedule A thereto, Alpha Natural Resources, as Sellers’ Representative and ANR (the “ Asset Purchase Agreement ”) (capitalized terms used and not otherwise defined herein having the respective meanings assigned thereto in the Asset Purchase Agreement);

WHEREAS, prior to entry into this Agreement, Alpha Natural Resources, the ANR Subsidiaries and Contura Energy consummated steps 1 - 16 of the transactions set forth on Schedule B to the Asset Purchase Agreement (the “ Pre-Closing Restructuring Steps ”);

WHEREAS, as part of the Pre-Closing Restructuring Steps, on the date hereof and prior to entry into this Agreement, the ANR Subsidiaries transferred to Alpha Natural Resources, and , except as otherwise provided in the Asset Purchase Agreement, Alpha Natural Resources accepted and assumed, all Purchased Assets and Assumed Liabilities held by the ANR Subsidiaries (the “ Subsidiary Transfers ”);

WHEREAS, as part of the Pre-Closing Restructuring Steps, concurrently with entry into this Agreement, Alpha Natural Resources is transferring to ANR, and ANR is accepting and assuming, (i) all assets and properties of Alpha Natural Resources (including, for the avoidance of doubt, all equity interests in the Subsidiaries of Alpha Natural Resources), other than the Purchased Assets and Alpha Natural Resources’ rights under the Asset Purchase Agreement (except as otherwise provided in the Asset Purchase Agreement), and (ii) all Liabilities of Alpha Natural Resources, other than the Assumed Liabilities and Alpha Natural Resources’ Liabilities arising under the Asset Purchase Agreement (except as otherwise provided therein and subject to the discharge under section 1141 of the Bankruptcy Code and the terms of the Plan of Reorganization and the Confirmation Order, as defined therein) (clauses (i) and (ii), the “ ReorgCo Transfers ”);

WHEREAS, on the date hereof and following entry into this Agreement, pursuant to the Asset Purchase Agreement, Alpha Natural Resources will transfer to Contura Energy or its designated subsidiaries, and Contura Energy or its designated subsidiaries will accept and assume, all Purchased Assets and Assumed Liabilities (the closing of the purchase of the Purchased Assets and the assumption of the Assumed Liabilities, the “ Closing ”);

WHEREAS, Contura Energy, Alpha Natural Resources and ANR desire that Alpha Natural Resources (from the completion of the ReorgCo Transfers until the Closing) and

1

Contura Energy (from the Closing until the expiration of the relevant Services Term) will provide to ANR and its Subsidiaries, directly or through its Affiliates or subcontractors, the CoreCo Provided Services, all in accordance with the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, Contura Energy, Alpha Natural Resources and ANR desire that ANR will provide to Alpha Natural Resources and its Subsidiaries (from the completion of the ReorgCo Transfers until the Closing) and Contura Energy and its Subsidiaries (from the Closing until the expiration of the relevant Services Term), directly or through ANR’s Affiliates or subcontractors, the ANR Provided Services, all in accordance with the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

ARTICLE 1
D EFINITIONS

As used in this Agreement, the following capitalized terms shall have the following meanings:

“ Additional Service ” shall have the meaning set forth in Section 2.08(b).

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings.

“ Agreement ” shall have the meaning set forth in the preamble hereof.

“ Alpha Natural Resources ” shall have the meaning set forth in the preamble hereof.

“ ANR ” shall have the meaning set forth in the preamble hereof.

“ ANR Business ” means the business or operations conducted primarily through the use of the Retained Assets.

“ ANR Project Manager ” shall have the meaning set forth in Section 2.08(e).

“ ANR Provided Services ” means the limited enumerated services to be provided by ANR described on the Schedules attached hereto.

“ Applicable Law ” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling,

2

reporting or licensing requirement or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person or any of its assets, Liabilities or business, in each case, as amended, unless expressly specified otherwise.

“ Asset Purchase Agreement ” shall have the meaning set forth in the recitals hereto.

“ Assumed Liabilities ” shall have the meaning set forth in the recitals hereof.

“ Auditing Entity ” shall have the meaning set forth in Section 8.03.

“ Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close.

“ Bankruptcy Case ” means the cases, as jointly administered, commenced by Alpha Natural Resources and certain if its subsidiaries under chapter 11 of the Bankruptcy Code, styled In re: Alpha Natural Resources Inc., et al., Case No. 15-33896 (KRH) and pending before the Bankruptcy Court.

“ Bankruptcy Court ” means the United States Bankruptcy Court for the Eastern District of Virginia.

“ Closing ” shall have the meaning set forth in the Asset Purchase Agreement.

“ Closing Date ” shall have the meaning set forth in the Asset Purchase Agreement.

“ Confidential Information ” shall have the meaning set forth in Article 13.

“ Confirmation Order ” shall have the meaning set forth in the Asset Purchase Agreement.

“Contract ” means any note, bond, mortgage, indenture, agreement, lease, sublease, license, sublicense, contract, trust, instrument, arrangement, guarantee, purchase order or other commitment, obligation or understanding, whether oral or written, that is legally binding.

“ Contura Energy ” shall have the meaning set forth in the preamble hereof.

“ CoreCo ” means (i) with respect to the period of time from the completion of the ReorgCo Transfers until the Closing, Alpha Natural Resources and (ii) with respect to the period of time from the Closing until the expiration of the relevant Services Term, Contura Energy. All covenants and agreements contained herein that by their terms are to be performed by or for the benefit of “CoreCo” shall (x) during the period of time from the completion of the ReorgCo Transfers until the Closing, be performed by or for the benefit of Alpha Natural Resources and (y) during the period of time from the Closing until the expiration of the relevant Services Term, be performed by or for the benefit of Contura Energy. For the avoidance of doubt, if the Closing occurs, all obligations and rights hereunder of Alpha Natural

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Resources in the capacity of “CoreCo” shall transfer to Contura Energy, and Alpha Natural Resources shall cease to have any such obligations or rights.

“ CoreCo Business ” means the business or operations conducted primarily through the use of the Purchased Assets.

“ CoreCo Project Manager ” shall have the meaning set forth in Section 2.08(e).

“ CoreCo Provided Services ” means the limited enumerated services to be provided by CoreCo described on the Schedules attached hereto.

“ Default Interest Rate ” shall have the meaning set forth in Section 3.01(c).

“ Delaware Courts ” shall have the meaning set forth in Section 14.12.

“ Due Date ” shall have the meaning set forth in Section 3.01(b).

“ Fee ” or “ Fees ” shall have the meaning set forth in Section 3.01(a).

“ Governmental Authority ” means any transnational, domestic or foreign federal, state, local, provincial, municipal, special purpose, or other governmental or quasi- governmental authority or regulatory body, court, tribunal, arbitrating body, governmental department, commission, board, officer, self-regulating authority, Taxing Authority, bureau or agency, as well as any other instrumentality or entity designated to act for or on behalf of any of the foregoing.

“ IT Systems ” means information and communications technologies, including hardware, software, networks and associated documentation.

“ Liabilities ” shall have the meaning set forth in the Asset Purchase Agreement.

“ Omitted Service ” shall have the meaning set forth in Section 2.08(a).

“ Opt-In Service ” shall have the meaning set forth in Section 2.08(c).

“ Party ” and “ Parties ” shall have the meaning set forth in the preamble hereof.

“ Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.

“ Plan of Reorganization ” shall have the meaning set forth in the Asset Purchase Agreement.

“ Preclosing Restructuring Steps ” shall have the meaning set forth in the recitals hereof.

“ Prime Rate ” means the prime rate of interest (the base rate on corporate loans) as published under “Money Rates” in The Wall Street Journal.

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“ Project Manager ” shall have the meaning set forth in Section 2.08(e).

“ Purchased Assets ” shall have the meaning set forth in the recitals hereof.

“ ReorgCo Transfers ” shall have the meaning set forth in the Asset Purchase Agreement.

“ Restructuring Steps ” shall have the meaning set forth in the Asset Purchase Agreement.

“ Retained Assets ” means the assets to be transferred pursuant to the ReorgCo Transfers.

“ Service ” means any of the CoreCo Provided Services and the ANR Provided Services, as applicable.

“ Service Provider ” means (i) with respect to the CoreCo Provided Services, CoreCo and (ii) with respect to the ANR Provided Services, ANR.

“ Service Recipient ” means (i) with respect to the CoreCo Provided Services, ANR and (ii) with respect to the ANR Provided Services, CoreCo.

“ Services Term ” shall have the meaning set forth in Section 4.01.

“ Subsidiary ” means with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof.

“ Subsidiary Transfers ” shall have the meaning set forth in the recitals hereof.

“ Tax ” means (i) any and all taxes, charges, levies or other similar assessments or liabilities in the nature of a tax, including income, gross receipts, ad valorem, premium, value-added, net worth, capital stock, capital gains, documentary, recapture, alternative or add-on minimum, disability, estimated, registration, recording, excise, real property, personal property, extraction, unmined mineral, sales, use, license, lease, service, service use, transfer, withholding, employment, unemployment, insurance, social security, business license, business organization, environmental, workers compensation, payroll, employer health, profits, severance, stamp, occupation, windfall profits, customs, duties, gift, estate, franchise, production, inventory, unclaimed property, escheat and other taxes of any kind whatsoever imposed by a Governmental Authority, and any interest, fines, penalties, assessments or additions to tax imposed with respect to such items or any contest or dispute thereof or (ii)

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liability for the payment of any amounts of the type described in (i) as a result of being party to any agreement or any express or implied legal or contractual obligation to indemnify or otherwise assume or succeed to the liability of any other Person.

“ Taxing Authority ” means any Governmental Authority having or purporting to exercise jurisdiction with respect to any Tax.

ARTICLE 2
S ERVICES

Section 2.01. Scope of Services .

(a) ANR hereby retains CoreCo to provide, and CoreCo hereby agrees to provide, the CoreCo Provided Services to ANR or any of its Subsidiaries, as designated by ANR.
(b) CoreCo hereby retains ANR to provide, and ANR hereby agrees to provide, the ANR Provided Services to CoreCo or any of its Subsidiaries, as designated by CoreCo.
(c) Notwithstanding anything to the contrary in this Agreement, (i) the CoreCo Provided Services shall be available to ANR or any of its Subsidiaries only for the purposes of conducting the ANR Business substantially in the same manner and places as it was conducted immediately prior to the Closing Date; and (ii) the ANR Provided Services shall be available to CoreCo or any of its Subsidiaries only for the purposes of conducting the CoreCo Business substantially in the same manner and places as it was conducted immediately prior to the Closing Date.
Section 2.02. Provision of Services . The CoreCo Provided Services may be directly provided by CoreCo or may be provided through any of its Affiliates or subcontractors, including, but not limited to, Contura Energy Services, LLC, and the ANR Provided Services may be directly provided by ANR or may be provided through any of its Affiliates or subcontractors, including, but not limited to, Alpha Natural Resources Services, LLC or Maxxim Shared Services, LLC. Any breach by a Party’s Affiliate or subcontractor of the terms or conditions of this Agreement shall be deemed a breach by such Party of such terms or conditions. A Party shall not be excused from its obligation to provide Services due to a failure by its Affiliates or subcontractors to meet their contractual obligations to such Party.

Section 2.03. No Financing to Services Recipient . In no event shall a Service Provider or its Affiliates be required to (i) lend any funds to a Service Recipient or its Affiliates, (ii) expend funds for any additional equipment or material or property (real or personal) on behalf of Service Recipient (other than funds expended in providing the Services), or (iii) make any payments or disbursements on behalf of Service Recipient, except to the extent Service Recipient has previously delivered to Service Provider sufficient funds to make any such expenditures, payment or disbursement.

Section 2.04. No Assumption or Modification of Obligations . Nothing herein shall be deemed to (i) constitute the assumption by Service Provider or any of its Affiliates, or the agreement to assume, any duties, obligations or liabilities of Service Recipient or its Affiliates whatsoever; or (ii) alter, amend or otherwise modify any obligation of Contura Energy, Alpha Natural Resources or ANR under the Asset Purchase Agreement.

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Section 2.05. Application of Resources . Unless otherwise expressly required under the terms of any relevant Schedule hereto or the Asset Purchase Agreement, or otherwise agreed to by the Parties in writing, in providing the Services, Service Provider or its Affiliates shall not be obligated to pay any of Service Recipient’s costs related to its or any of its Affiliates’ receipt of the Services.

Section 2.06. Performance of Services . Subject to the other terms (i) in this Agreement setting forth and circumscribing Service Provider’s performance obligations hereunder (including in Sections 2.01, 2.02, 2.03, 2.05, 2.07, 2.08, 2.09 and Article 6) and (ii) in the relevant Schedules hereto, each Service Provider shall perform the Services required to be provided by it hereunder in a manner specifically described in the relevant Schedules hereto, or, to the extent not so described in such Schedules, in a manner that is substantially the same in nature, accuracy, quality, completeness, timeliness, responsiveness and efficiency with how such relevant Services have been rendered to the ANR Business by Alpha Natural Resources or any of its Subsidiaries prior to the Closing Date, or to the CoreCo Business by ANR or any of its Subsidiaries ( pro forma for the ReorgCo Transfers) prior to the Closing Date.

Section 2.07. Transition Assistance . In connection with the termination of this Agreement and/or any Services and as requested by the Services Recipient during the Service Term, Service Provider shall provide its good faith cooperation and assistance, at Service Recipient’s expense, in transitioning the provision of Services from Service Provider to Service Recipient or to a successor third party provider, as elected by the Service Recipient.

Section 2.08. Omitted Services; Opt-In Services; Additional Services; Extension of Services Terms .

(a) Omitted Services . If, after the Closing Date and prior to 45 days after the Closing Date, a Party identifies a service that the other Party ( pro forma for the ReorgCo Transfers and the transactions contemplated by the Asset Purchase Agreement) previously provided to such Party prior to the Closing Date, but such service was omitted from inclusion in the Services to be received by such first Party under this Agreement (an “ Omitted Service ”), then, upon the prior written consent of the Party that would be Service Provider of such Omitted Service (which consent shall not be unreasonably withheld), such Omitted Service shall be added and considered as part of the Services to be provided by such Service Provider. The Parties shall cooperate and act in good faith to reach agreement on the fees and other specific terms and conditions applicable to such Omitted Service, provided that if such Omitted Service is substantially similar to any other Service provided by Services Provider under this Agreement, such fees and other specific terms and conditions shall be substantially similar to the fees and other specific terms and conditions applicable to such other Services. Upon the Parties’ agreement on the fees and other specific terms and conditions applicable to an Omitted Service, the Parties shall execute an amendment to this Agreement that provides for the addition of the relevant Schedule, or additions of supplements to the relevant Schedule, in order to describe such Omitted Service and the agreement upon the related fees and other specific terms and conditions applicable thereto.
(b) Additional Services; Extension of Services Terms . In the event that the Parties identify and agree upon (i) an additional service to be provided under this Agreement, as well as the related fees and other specific terms and conditions applicable thereto (an “ Additional Service ”), or (ii) an extension of any particular Service Term, as well as the related fees and other

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specific terms and conditions applicable thereto, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Schedule, or additions of supplements to the relevant Schedule, in order to describe such Additional Service or extension, and the agreed upon related fees and other specific terms and conditions applicable thereto.
(c) Opt-In Services . Certain of the Services set forth on the Schedules attached hereto may be designated on such Schedules as “ Opt-In Services .” A Service that is designated as an Opt-In Service shall not be provided by the Service Provider and the Fees associated with such Service shall not be payable by the Service Recipient unless and until the Service Recipient provides written notice to the Service Provider electing that such Opt-In Service be provided. Such notice shall specify the Opt-In Service to be provided and the date on which the provision of such Opt-In Service shall commence. Such written notice shall provide at least 15 days’ notice of such commencement date (unless a shorter notice period is specifically provided for in the applicable Schedule attached hereto with respect to such Opt-In Service). For the avoidance of doubt, the Service Recipient may elect that different Opt-In Services be provided commencing on different dates and through the provision of separate written notices (or notice with respect to multiple Opt-In Services) under the terms of this Section 2.08(c). From and after the date of commencement of an Opt-In Service, such Opt-In Service shall constitute a “Service” for all purposes hereof until the termination of such Service in accordance with Article 4.
(d) Impracticability . Service Provider shall not be required to provide any Service to the extent: (A) that the performance of the Services would (i) require Service Provider or any of its Affiliates to violate any Applicable Law; (ii) result in the breach of any software license, lease, or other Contract; or (iii) require prior approval of a Governmental Authority (except to the extent such approval has already been obtained); or (B) provided under Section 14.16; provided that, in any such event, Service Provider will use reasonable best efforts to make alternative arrangements to provide the relevant Service. For the avoidance of doubt, nothing in this (d) shall limit Service Provider’s obligations under Section 2.09.
(e) Project Managers . Each of CoreCo and ANR shall designate at least one individual to whom all communications may be addressed with respect to the CoreCo Provided Services and the ANR Provided Services and who has authority to act for and bind such Party in all aspects with respect to the CoreCo Provided Services and the ANR Provided Services (the “ CoreCo Project Manager ” and the “ ANR Project Manager ”, respectively, and collectively the “ Project Managers ”). The initial CoreCo Project Manager designated by CoreCo shall be Todd Munsey and the initial ANR Project Manager designated by ANR shall be Troy Nichols. Notwithstanding the foregoing in this Section 2.08, the Parties acknowledge and agree that with respect to ordinary course of business communications between the Parties regarding any relevant Service, such communications shall take place between each Party’s representative (or his or her designee) identified under the caption “CONTACTS” on the Schedules hereto.
(f) Cooperation . In the event that there is nonperformance of any Service as a result of (i) a force majeure event described in Section 14.16, or (ii) impracticability pursuant to Section 2.08(d), the Parties agree to work together in good faith to arrange for an alternative means by which the applicable Service Recipient may obtain, at its sole cost and expense, the Service so affected. The Parties shall cooperate with each other in connection with the performance of the Services, including producing on a timely basis all Contracts, documents and other information that is reasonably requested with respect to the performance of Services; provided, however, that such cooperation shall not unreasonably disrupt the normal operations of the Parties.

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Section 2.09. Third Party Systems . To the extent that the Services are provided by Service Provider through or using third-party intellectual property rights or IT Systems (“ Third Party Systems ”), Service Provider shall use commercially reasonable efforts to (a) obtain any necessary consent from Third Party System providers in order to provide the Third Party Systems (so long as no cost or penalty is imposed on Service Provider in connection with obtaining such consent) or (b) if any such consent is not obtained, provide acceptable alternative arrangements to provide the relevant Service for Service Recipient’s purposes, provided that Service Recipient shall reimburse the costs and expenses of such alternative arrangements to Service Provider.

ARTICLE 3
P RICING
Section 3.01. Fees .

(a) Fees . In consideration of Service Provider’s performance of the relevant Services, Service Recipient shall pay to Service Provider the fees prescribed on the relevant Schedules hereto (individually a “ Fee ” and collectively the “ Fees ”). For the avoidance of doubt, the Fees prescribed on the relevant Schedules hereto shall be payable irrespective of the actual number of hours expended by Service Provider (or its Affiliates or subcontractors) in providing the applicable Service; provided that, in the event that the number of hours required to provide a Service is substantially higher or lower than the number of hours contemplated in the Schedules with respect to such Service, the Parties shall cooperate and act in good faith to renegotiate the fees applicable to such Service to reasonably reflect the actual number of hours required to provide such Service.
(b) Invoices; Payment Procedures . Service Provider shall invoice Service Recipient on a monthly basis for all Fees accrued with respect to the prior month. Fees shall be payable by Service Recipient within thirty (30) days after Service Recipient’s receipt of an invoice (the “ Due Date ”). All amounts (i) payable pursuant to the terms of this Agreement shall be paid to Service Provider as directed by Service Provider, and (ii) due and payable hereunder shall be invoiced and paid in U.S. dollars, except as may be expressly provided in any relevant Schedule hereto. A Service Recipient’s obligation to pay any Fees under this Agreement shall be offset against any Fees payable to such Party in its capacity as Service Provider, in respect of the same period. Within five (5) days after invoicing, the Project Managers shall review the invoices for the prior calendar month and agree as to the net balance between each Service Recipient. Such net balance shall be payable by the applicable Service Recipient by the Due Date.
(c) Interest . In the absence of a timely notice of billing dispute in accordance with the provisions of Section 3.02, amounts not paid on or before the Due Date shall be payable with interest, accrued at the then effective Prime Rate plus 2% (the “ Default Interest Rate ”) (or the maximum legal rate whichever is lower), calculated for the actual number of days elapsed, accrued from the Due Date until the date of the actual receipt of payment.
(d) Taxes . If any Governmental Authority shall impose a tax on the Services rendered to a Service Recipient or its subsidiaries by Service Provider hereunder, Service Recipient agrees to pay, or remit to Service Provider so that Service Provider may pay, the amount of such tax imposed on the Services rendered to Service Recipient or its subsidiaries by Service Provider under this Agreement. Notwithstanding anything to the contrary contained in this Agreement,

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Service Recipient shall have no liability for, and shall not be obligated to pay for, any property taxes of any kind or type applicable to the property of Service Provider or any of its subsidiaries or any income taxes of any kind or type applicable to the income of Service Provider or any of its subsidiaries, except as may be expressly provided in any relevant Schedule hereto.
Section 3.02. Payment Disputes . In the event that Service Recipient disputes any invoice or portion thereof, Service Recipient shall provide Service Provider prior to the Due Date written notice of the disputed amounts, together with a statement of the particulars of the dispute, including the calculations with respect to any errors or inaccuracies claimed. Should Service Recipient fail to provide timely evidence of the invoice errors claimed on or before the Due Date, the disputed amounts shall be owed with interest at the Default Interest Rate from the Due Date until payment is received. Should Service Recipient provide the required information on or before the Due Date, the Parties shall proceed as set forth in Article 11 hereof with respect to such disputed amount. If, as determined in accordance with Article 11 hereof, Service Recipient has (i) underpaid the amount actually due, Service Recipient shall remit any amount due within five (5) Business Days after determination of such underpayment, or (ii) overpaid the amount actually due, Service Provider shall remit to Service Recipient any refund within five (5) Business Days after determination of such overpayment, in each case without interest; provided that if such amount due is not paid within five (5) Business Day after the applicable determination, such amount shall be owed with interest at the Default Interest Rate from the date of such determination until payment is received. Notwithstanding any disputed invoice or portion thereof, Service Recipient shall nevertheless pay when due any undisputed amount of such invoice to Service Provider.

ARTICLE 4
S ERVICES T ERM ; T ERMINATION

Section 4.01. Services Term . The performance of the Services shall commence on the Closing Date and, unless earlier terminated pursuant to Section 4.02 or 4.03, shall terminate on such date as may be expressly provided for in the relevant Schedule hereto (the “ Services Term ”).

Section 4.02. Termination . This Agreement or any specific Services, as specified below in this Section 4.02, may be terminated prior to the expiration of the relevant Services Term only as follows:
(a) With respect to all or any CoreCo Provided Services, by ANR by giving a termination notice to CoreCo, provided that (i) the termination will be effective as of the last day of the calendar month immediately following the calendar month in which CoreCo receives such termination notice, and (ii) ANR shall reimburse CoreCo for any and all costs and expenses incurred by CoreCo or any of its Subsidiaries to the extent (but only to the extent) resulting from such early termination by ANR, including internal demobilization or incremental, unplanned severance costs, and early termination fees and other costs incurred in order to terminate or reduce the level of services provided by third parties under Contracts with CoreCo or any of its Subsidiaries, which services are affected by such early termination, such reimbursement to be due and payable on the Due Date following ANR’s receipt of any invoice from CoreCo with respect to such costs and expenses, or, if there are no more Due Dates, within thirty (30) days of ANR’s receipt of such invoice (if requested, CoreCo will promptly provide to ANR an estimate of any such costs and expenses in advance of ANR delivering any termination notice);

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(b) With respect to all or any ANR Provided Services, by CoreCo by giving a termination notice to ANR, provided that (i) the termination will be effective as of the last day of the calendar month immediately following the calendar month in which ANR receives such termination notice, and (ii) CoreCo shall reimburse ANR for any and all costs and expenses incurred by ANR or any of its Subsidiaries to the extent (but only to the extent) resulting from such early termination by CoreCo, including internal demobilization or incremental, unplanned severance costs, and early termination fees and other costs incurred in order to terminate or reduce the level of services provided by third parties under Contracts with ANR or any of its Subsidiaries, which services are affected by such early termination, such reimbursement to be due and payable on the Due Date following CoreCo’s receipt of any invoice from ANR with respect to such costs and expenses, or, if there are no more Due Dates, within thirty (30) days of CoreCo’s receipt of such invoice (if requested, ANR will promptly provide to CoreCo an estimate of any such costs and expenses in advance of ANR delivering any termination notice);
(c) With respect to all or any Services that are adversely affected by a breach, by the non-breaching Party if the other Party fails to observe or perform in any material respect any term, obligation, or condition of this Agreement and the defaulting Party does not cure such failure within fifteen (15) days after written demand by the first Party, provided that if the defaulting Party begins promptly and diligently to cure such breach in accordance with this provision and such breach is not capable of being cured within such 15-day period, the defaulting Party shall have up to an additional fifteen (15) days to cure such breach if it demonstrates that it is reasonably capable of curing such breach within such additional 15-day period;
(d) With respect to the entire Agreement, by CoreCo or ANR if the other Party makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for reorganization or rearrangement under the Bankruptcy Code, or if a petition in bankruptcy is filed against such other Party and is not dismissed within thirty (30) days after the filing, or if a receiver or trustee is appointed for all or a material portion of the property or assets used by the other Party to perform Services hereunder; provided that, for the avoidance of doubt, the Bankruptcy Case shall not give rise to any right of termination of this Agreement; or
(e) With respect to all or any Services that are adversely affected by a force majeure event as described in Section 14.16, if Service Provider fails to perform in any material respect its obligation to perform any Services as a result of such circumstances of force majeure and such force majeure continues to exist for at least sixty (60) consecutive days.
Section 4.03. Rights and Obligations Upon Termination . Upon expiration of the Services Term or in the event of a termination pursuant to Section 4.02, no Party, nor any of its Affiliates, shall have any liability or further obligation to any other Party or any of its Affiliates pursuant to this Agreement, except: (i) that the provisions of Section 2.07 and Articles 3 (to the extent of amounts accrued thereunder through the date of such expiration or termination), 4, 5, 6, 8, 10, 11, 12, 13 and 14 (as well as in each case associated defined terms) shall survive any such expiration or termination and not be extinguished thereby; and (ii) any Party nevertheless shall be entitled to seek any remedy to which it may be entitled at law or in equity for the violation or breach by the other Party of any agreement, covenant, representation, warranty, or indemnity contained in this Agreement that occurs prior to such expiration or termination.


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ARTICLE 5
R ETURN OF L EASED P ROPERTY OR L ICENSED S OFTWARE

Service Recipient shall be liable for all costs and expenses incurred by Service Provider or any of its subsidiaries resulting from any delay or failure of Service Recipient to return as promptly as practicable to Service Provider or any licensor, as applicable, any leased property or licensed software that is included as part of the Services provided to such Service Recipient upon (i) the termination of the relevant Services as provided herein, or (ii) the expiration of the term of the applicable lease or license, provided that Services Provider has provided Service Recipient with at least sixty (60) days prior written notice of such expiration.

ARTICLE 6
D ISCLAIMER OF R EPRESENTATIONS AND W ARRANTIES

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.06 OR OTHERWISE IN ANY SCHEDULE HERETO, EACH PARTY ACKNOWLEDGES AND AGREES (I) THAT ALL SERVICES ARE PROVIDED BY SERVICE PROVIDER ON AN “AS IS” BASIS, AND (II) THAT NEITHER SERVICE PROVIDER NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, TO SERVICE RECIPIENT OR ANY OF ITS AFFILIATES WITH RESPECT TO THE SERVICES, ANY EQUIPMENT OR MATERIALS PROVIDED UNDER THIS AGREEMENT, OR OTHERWISE HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

ARTICLE 7
I NTERNAL C ONTROLS AND P ROCEDURES

In addition to the record retention requirements of the Asset Purchase Agreement, with respect to the Services for which each Service Provider is responsible, such Service Provider shall maintain and comply with such internal controls and procedures as are agreed by the Parties to be implemented by the Parties to comply with internal controls and procedures or Applicable Law. In the event a Service Recipient requires a change to the internal controls or procedures, or requires the implementation of additional internal controls or procedures, related to the Services required to be provided to such Service Recipient in order for such Service Recipient to comply with changes to Applicable Law, Service Provider shall change or add to such Service Provider’s internal controls or procedures related to such Services as reasonably requested by such Service Recipient; provided, however, in connection with a Service Provider changing or adding to internal controls or procedures as required by the foregoing, Service Recipient shall pay for any and all additional costs and expenses associated with the implementation or maintenance of the applicable change or addition; provided, further , however, that if such change or addition is required for the compliance by both Parties with Applicable Law, the Parties shall negotiate in good faith an equitable sharing of the costs and expenses associated with such change or addition.




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ARTICLE 8
B OOKS AND R ECORDS ; A UDITS

Section 8.01. Books and Records . Each Party shall keep and maintain books, records, accounts and other documents sufficient to reflect accurately and completely the transactions conducted, and all associated costs incurred, pursuant to this Agreement. Such records shall include receipts, invoices, memoranda, vouchers, inventories and accounts pertaining to the Services, as well as complete copies of all contracts, purchase orders, service agreements and other such arrangements entered into in connection therewith. For the avoidance of doubt, this Section 8.01 shall not obligate a Party to maintain books, records, accounts or other documents beyond what such Party customarily maintains in the ordinary course of its business consistent with past practice.

Section 8.02. Audit of Performance . Each Party shall have access to and the right to inspect all records maintained by the other Party directly related to the Services, as is reasonably necessary for the purposes of verifying the other Party’s compliance with this Agreement or any other legitimate purpose, including auditing and verifying costs or expenses claimed to be due and payable hereunder. Such access shall be available at reasonable times on Business Days during business hours and under reasonable conditions with a minimum of at least ten (10) days prior written notice. Each Party shall keep and preserve all such records for a period of at least five (5) year from and after end of the relevant Services Term.

Section 8.03. Audit Assistance . Each Party and its Subsidiaries are or may be subject to audit by Governmental Authorities, such Party’s third party or internal auditor, such Party’s customers, or other Persons that are parties to contracts with such Party, in each case pursuant to Applicable Law, contractual provision, or request of such Party’s board of directors (or its audit committee) (an “ Auditing Entity ”). If an Auditing Entity exercises its right to audit such first Party’s or any of its Subsidiaries’ books, records, documents, accounting practices or procedures, internal controls and procedures, or operational, financial or legal practices and procedures, and such audit relates to the Services required to be provided to, or from, such first Party hereunder, upon written request of such first Party, the other Party shall, within a reasonable period of time, provide, at the sole cost and expense of such first Party, all assistance, records and access reasonably requested by such first Party in responding to such audits (including documents related to testing methodologies, test results, audit reports of significant findings, and remediation plans with respect to any deficiencies with respect to such other Party’s internal controls or procedures, and work papers of such other Party’s third party or internal auditor that relate to the matter being subject of such audit), to the extent that such assistance, records or access is within the reasonable control of such other Party. If an audit report of a Service Recipient’s third party or internal auditor relating to such audit identifies any deficiencies in a Service Provider’s internal controls and procedures directly related to a Service provided to such Service Recipient, such Service Provider shall, at the sole cost and expense of such Service Recipient, implement such reasonable changes to such Service to correct such deficiencies to ensure compliance with Applicable Law in connection with such Service; provided, however, that if such correction is required for the compliance by both Parties with Applicable Law, the Parties shall negotiate in good faith an equitable sharing of the costs and expenses associated with such correction.



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ARTICLE 9
C OMPLIANCE WITH L AWS AND G OVERNMENTAL R EQUIREMENTS .

The Parties shall comply, and shall cause their Affiliates and their respective employees to comply, with all Applicable Laws and all third party intellectual property rights in the performance of this Agreement; provided that, except where compliance is a component of the applicable Services, Service Provider assumes no responsibility for compliance by Service Recipient with any Applicable Law applicable to Service Recipient, and Service Recipient shall be responsible for securing, and monitoring compliance with, any necessary governmental or regulatory permits, consents, or approvals necessary for receiving the Services; provided, further , that Service Recipient assumes no responsibility for compliance by Service Provider with any Applicable Law applicable to Service Provider, and Service Provider shall be responsible for securing, and monitoring compliance with, any necessary governmental or regulatory permits, consents, or approvals necessary for providing the Services.

ARTICLE 10
L IMITATION OF L IABILITY ; I NDEMNITY .

(a) Service Provider’s Limitation of Liability . In no event shall a Service Provider or any of its Affiliates have any liability to a Service Recipient or any of its Affiliates whether under this Agreement or otherwise in connection with performance hereunder, including for any error in judgment or any act or omission, except as a result of the gross negligence or willful misconduct of, or infringement of any third party intellectual property rights by, Service Provider or any of its Affiliates.
(b) Service Recipient Indemnity . Service Recipient hereby agrees to indemnify, defend and hold harmless Service Provider and each of its Affiliates from and against any and all claims, losses, demands, liabilities, costs and expenses (including reasonable attorneys’ fees and costs and expenses related thereto) suffered or incurred by Service Provider or any of its Affiliates as a result of or in connection with any third party claims arising from Service Provider’s or any of its Affiliates’ performance of the Services hereunder, except to the extent such third party claims are based in whole or in part on Service Provider’s or any of its Affiliates’ gross negligence or willful misconduct or infringement of any third-party intellectual property rights in performing the Services.
(c) Service Provider Indemnity . Service Provider hereby agrees to indemnify, defend and hold harmless Service Recipient and each of its Affiliates from and against any and all claims, losses, demands, liabilities, costs and expenses (including reasonable attorney’s fees and costs and expenses related thereto) suffered or incurred by Service Recipient or any of its Affiliates as a result of, or in connection with, any third party claims to the extent caused by the gross negligence or willful misconduct of, or the infringement of any third-party intellectual property rights by, Service Provider or any of its Affiliates in performing the Services.
(d) Waiver of Certain Damages . Neither Party nor any of their respective Affiliates shall be liable for any loss of profits, loss of business, loss of use or of data, interruption of business, or for indirect, special, punitive, exemplary, incidental or consequential damages of any kind whether under this Agreement or otherwise in connection with performance hereunder, even if the other Party has been advised of the possibility of such damages.

13


ARTICLE 11
D ISPUTE R ESOLUTION AND E SCALATION

The Parties agree to undertake reasonable efforts to resolve in good faith any dispute arising out of or relating to this Agreement. Should such a dispute arise, the Parties shall proceed with the following dispute resolution and escalation procedures:

Section 11.01. Project Manager Level . First, the applicable Project Managers will promptly negotiate in good faith to resolve the matter. If these individuals cannot resolve the matter within ten (10) Business Days, or such longer period as the Parties may agree, then the dispute will be subject to Section 11.02.

Section 11.02. Executive Level . In the event a dispute is not resolved by the Project Managers in accordance with Section 11.01, Mark M. Manno, on behalf of CoreCo and Andrew B. McCallister, on behalf of ANR (each, and any replacements of either of them pursuant to the last sentence of this Section 11.02, an “ Executive ”) will communicate in good faith to resolve the issue within ten (10) Business Days of receipt of such escalation. In the event that the issue has not been resolved within such ten (10) Business Day period, or such longer period as the Parties may agree, either Party may pursue whatever legal remedies it may have in accordance with this Agreement. Each Party may designate a different executive of comparable seniority to participate in this resolution process by providing written notice of such designation to the other Party, and shall do so in the event one of the Executives no longer serves in an appropriate capacity at CoreCo or ANR as applicable.

ARTICLE 12
P ROPERTY R IGHTS

Section 12.01. The Parties acknowledge and agree that nothing in this Agreement is intended to transfer any right, title, or interest in or to any tangible, intangible, real or personal property (including any and all intellectual property rights). Notwithstanding any materials, deliverables, or other products that may be created or developed by Service Provider or its Affiliates from the date hereof through the expiration or termination of the Services Term, Service Provider does not convey hereunder, nor does Service Recipient or any of its Affiliates obtain hereunder, any right, title, or interest in or to any of Service Provider’s or any of its Affiliates’ equipment, materials, deliverables, products, or any other rights or property used to provide the Services, except for the limited licenses expressly granted under this Section 12. All customer and personnel data, files and input and output materials and the media upon which they are located that are supplied by Service Recipient or any of its Affiliates in connection with this Agreement shall remain Service Recipient’s or such Affiliate’s property, respectively, and Service Provider shall not have any rights or interests with respect thereto, except for the limited licenses expressly granted under this Section 12.

Section 12.02. Subject to the terms and conditions of this Agreement, Service Provider hereby grants, and shall cause its Affiliates to grant, to Service Recipient and its Subsidiaries, a non-exclusive, non-transferable, non-sublicensable, royalty free, fully paid-up limited license and right, during the Services Term, to use any and all intellectual property rights (other than trademarks, trade names or trade dress) that are owned or licensable (without the consent of or

14

payment to any third party) by Service Provider or its Affiliates, in each case solely to the extent necessary for the receipt, access and use of the applicable Services by Service Recipient and its Subsidiaries (and for no other purpose).

Section 12.03. Subject to the terms and conditions of this Agreement, Service Recipient hereby grants, and shall cause its Subsidiaries to grant, to Service Provider and its Affiliates, a non-exclusive, non-transferable, non-sublicensable, royalty free, fully paid up, limited license, during the Services Term, to use any and all intellectual property rights (other than trademarks, trade names or trade dress) that are owned or licensable (without the consent of or payment to any third party) by Service Recipient or its Subsidiaries, in each case solely to the extent necessary for the provision of the applicable Services by Service Provider and its Affiliates (and for no other purpose).
ARTICLE 13
C ONFIDENTIAL I NFORMATION

Each Party shall maintain the confidentiality of information of the other Party disclosed in connection with the Services in accordance with Section 7.08 of the Purchase Agreement.

ARTICLE 14
MISCELLANEOUS

Section 14.01. Complete Agreement; Construction . This Agreement, including the Schedules attached to the body of this Agreement, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter. In the event of any conflict between the terms and conditions of the body of this Agreement and the terms and conditions of any Schedule hereto, the terms and conditions of such Schedule shall control. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of the Asset Purchase Agreement or any other Transaction Documents, the terms and conditions of the Asset Purchase Agreement shall control in the former case and the terms and conditions of this Agreement shall control in the latter case.

Section 14.02. Counterparts . This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Parties. Until and unless each Party has received a counterpart hereof signed by the other Parties, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

Section 14.03. Expenses . Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.

Section 14.04. Notices . All notices, requests and other communications to any Party shall be in writing (including facsimile transmission) and shall be given,


15

If to CoreCo, to:

Contura Energy, Inc.
P.O. Box 848
Bristol, TN 37621-0848
Attention: Legal Department
Facsimile No.: (276) 628-3116 (until August 30, 2016)
(423) 573-0448 (after August 30, 2016)

with a copy to:

Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: William Taylor
Damian Schaible
Lee Hochbaum
Facsimile No.: (212) 701-5800

If to ANR, to:

ANR, Inc.
300 Running Right Way
P.O. Box 261
Attention: Legal Department
Facsimile No.: (304) 369-8699

with a copy to:

Jones Day
1420 Peachtree Street, N.E., Suite 800
Atlanta, GA 30309-3053
Attention: Jeffrey B. Ellman
Facsimile No.: (404) 581-8330

or such other address or facsimile number as such Party may hereafter specify for the purpose by notice to the other Party. All notices and other communications given in accordance with the provisions of this Agreement shall be deemed to have been given and received when delivered by hand or transmitted by facsimile (with confirmation of transmission), three Business Days after the same are sent by certified or registered mail, postage prepaid, return receipt requested or one Business Day after the same are sent by a reliable overnight courier service, with acknowledgement of receipt.


16

Section 14.05. Amendments and Waivers .

(a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each Party, or in the case of a waiver, by the Party against whom the waiver is to be effective.
(b) No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.
Section 14.06. Successors and Assigns . The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that no Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other Party.

Section 14.07. Subsidiaries . Each of the Parties shall cause to be performed all actions, agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such Party or by any entity that becomes a Subsidiary or Affiliate of such Party (including any entity that becomes a Subsidiary or Affiliate of such Party pursuant to the Restructuring Steps).

Section 14.08. Third Party Beneficiaries . No provision of this Agreement is intended to confer any rights, benefits, remedies, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns

Section 14.09. Title and Headings . Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 14.10. Schedules . The Schedules attached hereto are incorporated herein by reference and shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.

Section 14.11. Governing Law . This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state to the extent such principles or rules would require or permit the application of laws of another jurisdiction.

Section 14.12. Jurisdiction . To the fullest extent permitted by Applicable Law, the Parties (a) agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought (i) in the Bankruptcy Court, if brought prior to the entry of a final decree closing the Bankruptcy Case and (ii) in the Chancery Court of the State of Delaware (or, if the Delaware Chancery Court shall be unavailable, any other court of the State of Delaware or, in the case of claims to which the federal courts have exclusive subject matter jurisdiction, any federal court of the United States sitting in the State of Delaware) (the “ Delaware Courts ”), if brought after entry of such final decree closing the Bankruptcy Case,

17

and shall not be brought, in each case, in any other state or federal court in the United States, (b) agree to submit to the exclusive jurisdiction of the Bankruptcy Court or the Delaware Courts, as applicable, pursuant to the preceding clauses (a) (i) and (a) (ii), for purposes of all suits, actions or proceedings arising out of, or in connection with this Agreement and (c) waive and agree not to assert any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 14.4 shall be deemed effective service of process on such.

Section 14.13. Specific Performance . The Parties acknowledge and agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur if the Parties do not perform any provision of this Agreement in accordance with the terms hereof, or otherwise breach any such provision, and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that (i) there is adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.

Section 14.14. Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 14.15. Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be provided as originally contemplated to the fullest extent possible.

Section 14.16. Force Majeure .

(a) Either Party shall be excused from the performance of its obligations if, and to the extent that, and for the period during which, performance of those obligations is delayed or prevented by force majeure including fires, floods, Acts of God, extremes of weather, earthquakes, tornadoes, or similar occurrences; wrecks or transportation delays; riot, insurrection or other hostilities; embargo; fuel or energy shortage; strikes; or inability to obtain necessary labor,

18

materials or utilities; but not including any interruption of service, delays or failure to perform due to such Party’s failure to implement suitable business continuity plans or a failure of such Party’s IT Systems (other than failures which are themselves caused by force majeure).
(b) Any delays, interruptions or failure to perform caused by the occurrences described in Section 14.16(a) shall not be deemed to be a breach or failure to perform under this Agreement; provided, however , (i) in the event that either Party is unable to perform its obligations under this Agreement as a result of the occurrences described in Section 14.16(a), if reasonably required for the migration of any Services materially affected, the Service Term for such Services will be extended for a period of time commensurate with the duration of such delay, interruption or failure but solely to the extent necessary to migrate such Service and provided that Service Recipient continues to use commercially reasonable efforts to promptly migrate such Service and (ii) no fees (other than third party pass-through costs) shall be payable for any affected Service for the period during which performance of such Service is delayed or prevented.
(c) Each Party shall promptly notify the other, upon learning of the occurrence of any of the events described in Section 14.16(a) and the Party whose performance hereunder is affected shall use its commercially reasonable efforts to mitigate and eliminate the force majeure in order to resume performance as soon as possible.
Section 14.17. References; Other Definitional and Interpretative Provisions . The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person (including, in the case of Alpha Natural Resources, the limited liability company successor resulting from the conversion of Alpha Natural Resources, Inc. to a limited liability company pursuant to the Asset Purchase Agreement). References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law,” “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Laws.

Section 14.18. Status of Service Provider as Independent Contractor . Each Service Recipient expressly acknowledges that each Service Provider, its Affiliates, and each of their respective employees, agents, subcontractors and representatives are “independent contractors,” and nothing in this Agreement is intended and nothing shall be construed to create an employer/employee, partnership, joint venture or other similar relationship between any Service Recipient and Service Provider, its Affiliates, or each of their respective employees, agents, subcontractors and representatives. In addition, each Service Provider shall have the authority and responsibility to elect the means, manner and method of performing the Services required to be provided by it

19

under this Agreement. This Agreement shall not be interpreted or construed to create an association, joint venture, partnership, or agency between the Parties or to impose any partnership or fiduciary obligation or related liability upon any Party.

Section 14.19. Independent Surface Mining and Reclamation Operations . Nothing in this Agreement is intended, and this Agreement shall not be construed, to mean that ANR or CoreCo (i) has the authority, directly or indirectly, to determine the manner in which the other conducts surface mining and reclamation operations or (ii) otherwise owns or controls the other. The Parties acknowledge and agree that the relationship between the ANR and CoreCo established by this Agreement is merely for the temporary exchange of administrative and other similar ministerial services, and temporary ministerial collaboration, in each case solely to the extent necessary to effectuate the Asset Purchase Agreement and the transactions contemplated therein.

[Signature Page Follows]


20

IN WITNESS WHEREOF, the Parties caused this Transition Services Agreement to be duly executed as of the day and year first above written.


CONTURA ENERGY, INC.
By:
/s/ John S. DeGroote
 
Name:   John S. DeGroote
 
Title:   President & Secretary


ALPHA NATURAL RESOURCES, INC.
By:
/s/ Andrew Eidson
 
Name:   Andrew Eidson
 
Title:   Executive Vice President, Chief Financial Officer and Treasurer


ANR, INC.
By:
/s/ David J. Stetson
 
Name:   David J. Stetson
 
Title:   President and Chief Executive Officer




























[Signature Page to Transition Services Agreement]




Schedule I

This Schedule lists Services to be provided by CoreCo (“ Core ”) to ANR (“ Reorg ”)





Service flow:
Core to Reorg
Service number:
1
 
 
Transition service title:
Monthly close support
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Controller
Provider contact name:
Todd Munsey
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Roger Ketron
 
 
Monthly level provided:
370 hours
Level of provider:
L4
Monthly value of service:
$29,031





Service flow:
Core to Reorg
Service number:
2
 
 
Transition service title:
Financial reporting
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Dir. Corporate Accounting & Reporting
Provider contact name:
Cristina Perez
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Dir. Corporate Accounting & Reporting
Receiver contact name:
Megan Meador
 
 
Monthly level provided:
27 hours
Level of provider:
L3
Monthly value of service:
$2,692




Service flow:
Core to Reorg
Service number:
3
 
 
Transition service title:
ARO support
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Dir. General Accounting
Provider contact name:
Kristy Edwards
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Dir. Corporate Accounting & Reporting
Receiver contact name:
Megan Meador
 
 
Monthly level provided:
30 hours
Level of provider:
L4
Monthly value of service:
$2,354




Service flow:
Core to Reorg
Service number:
4
 
 
Transition service title:
Corporate Acctg
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Dir. Corporate Accounting & Reporting
Provider contact name:
Cristina Perez
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Dir. Corporate Accounting & Reporting
Receiver contact name:
Megan Meador
 
 
Monthly level provided:
20 hours
Level of provider:
L4
Monthly value of service:
$1,569




Service flow:
Core to Reorg
Service number:
5
 
 
Transition service title:
Fresh-start Acctg
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Controller
Provider contact name:
Todd Munsey
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Roger Ketron
 
 
Monthly level provided:
167 hours
Level of provider:
L3
Monthly value of service:
$16,827





Service flow:
Core to Reorg
Service number:
6
 
 
Transition service title:
Sales/AR Acctg
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Sr. Manager
Provider contact name:
Randy Philips
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Dir. Revenue and Inventory
Receiver contact name:
Robert Hutton
 
 
Monthly level provided:
20 hours
Level of provider:
L4
Monthly value of service:
$1,569




Service flow:
Core to Reorg
Service number:
7
 
 
Transition service title:
Acquisition Accounting
Service period in days:
90
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
SVP technical accounting
Provider contact name:
Alan Jones
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Roger Ketron
 
 
Monthly level provided:
100 hours
Level of provider:
L3
Monthly value of service:
$10,096




Service flow:
Core to Reorg
Service number:
8
 
 
Transition service title:
Tax Basis/Attribute Refresh
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Controller
Provider contact name:
Todd Munsey
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Roger Ketron
 
 
Monthly level provided:
86 hours
Level of provider:
L3
Monthly value of service:
$8,683




Service flow:
Core to Reorg
Service number:
9
 
 
Transition service title:
Environmental - EPA CD report
Service period in days:
90
 
 
Provider company:
Core
Provider department:
Environmental
Provider contact job title:
VP-Environmental, Environmental Compliance Managers, and GMs
Provider contact name:
John Paul Jones
 
 
Receiver company:
Reorg
Receiver department:
Environmental
Receiver contact job title:
VP-Environmental
Receiver contact name:
Shelley Surles
 
 
Monthly level provided:
8 hours
Level of provider:
L4
Monthly value of service:
$588





Service flow:
Core to Reorg
Service number:
10
 
 
Transition service title:
Environmental - KY operations
Service period in days:
0
 
 
Provider company:
Core
Provider department:
Environmental
Provider contact job title:
VP - Environmental
Provider contact name:
John Paul Jones
 
 
Receiver company:
Reorg
Receiver department:
Environmental
Receiver contact job title:
VP-Environmental
Receiver contact name:
Russ Lambert
 
 
Monthly level provided:
0 hours (inactive)
Level of provider:
L4
Monthly value of service:
$0





Service flow:
Core to Reorg
Service number:
11
 
 
Transition service title:
HR Employee Files
Service period in days:
0
 
 
Provider company:
Core
Provider department:
HR
Provider contact job title:
Manager HR
Provider contact name:
Sherry Bowers
 
 
Receiver company:
Reorg
Receiver department:
HR
Receiver contact job title:
Manager Benefits
Receiver contact name:
Amy Perrigan
 
 
Monthly level provided:
0 hours (inactive)
Level of provider:
L4
Monthly value of service:
$0





Service flow:
Core to Reorg
Service number:
12
 
 
Transition service title:
Bonus Calculation Support/OSEB/Cash Retention/LTIP
Service period in days:
90
 
 
Provider company:
Core
Provider department:
HR
Provider contact job title:
Sr. Dir-HR
Provider contact name:
Logan Bateman
 
 
Receiver company:
Reorg
Receiver department:
HR
Receiver contact job title:
Director HR
Receiver contact name:
Jeff Gillenwater and Judy Hill
 
 
Monthly level provided:
7 hours
Level of provider:
L3
Monthly value of service:
$673





Service flow:
Core to Reorg
Service number:
13
 
 
Transition service title:
Severance & WARN Payments
Service period in days:
30
 
 
Provider company:
Core
Provider department:
HR
Provider contact job title:
Sr. Dir-HR
Provider contact name:
Logan Bateman
 
 
Receiver company:
Reorg
Receiver department:
HR
Receiver contact job title:
Director HR
Receiver contact name:
Jeff Gillenwater and Judy Hill
 
 
Monthly level provided:
5 hours
Level of provider:
L3
Monthly value of service:
$505





Service flow:
Core to Reorg
Service number:
14
 
 
Transition service title:
HR Data Processes
Service period in days:
60
 
 
Provider company:
Core
Provider department:
HR
Provider contact job title:
Manager HR
Provider contact name:
Sherry Bowers
 
 
Receiver company:
Reorg
Receiver department:
HR
Receiver contact job title:
HR Rep
Receiver contact name:
Whitney Cole
 
 
Monthly level provided:
3 hours
Level of provider:
L4
Monthly value of service:
$262





Service flow:
Core to Reorg
Service number:
15
 
 
Transition service title:
Compensation support
Service period in days:
60
 
 
Provider company:
Core
Provider department:
HR
Provider contact job title:
VP HR
Provider contact name:
Burke Vander Lind
 
 
Receiver company:
Reorg
Receiver department:
HR
Receiver contact job title:
VP HR
Receiver contact name:
Judy Hill
 
 
Monthly level provided:
3 hours
Level of provider:
L2
Monthly value of service:
$542





Service flow:
Core to Reorg
Service number:
16
 
 
Transition service title:
HR/federal contractor compliance support
Service period in days:
90
 
 
Provider company:
Core
Provider department:
HR
Provider contact job title:
Sr. Dir-HR
Provider contact name:
Logan Bateman
 
 
Receiver company:
Reorg
Receiver department:
HR
Receiver contact job title:
Director HR
Receiver contact name:
Chris Matras
 
 
Monthly level provided:
5 hours
Level of provider:
L4
Monthly value of service:
$392





Service flow:
Core to Reorg
Service number:
17
 
 
Transition service title:
Payroll support
Service period in days:
60
 
 
Provider company:
Core
Provider department:
HR
Provider contact job title:
Sr. Director Payroll and HRIS
Provider contact name:
Jen Gambill
 
 
Receiver company:
Reorg
Receiver department:
HR
Receiver contact job title:
Director Payroll
Receiver contact name:
Melissa Stanley
 
 
Monthly level provided:
7 hours
Level of provider:
L4
Monthly value of service:
$523





Service flow:
Core to Reorg
Service number:
18
 
 
Transition service title:
General IT Support, Knowledge, and Expertise
Service period in days:
210
 
 
Provider company:
Core
Provider department:
IT
Provider contact job title:
VP IT
Provider contact name:
Becky Price
 
 
Receiver company:
Reorg
Receiver department:
IT
Receiver contact job title:
Sr. Director IT
Receiver contact name:
Jeff Bauserman
 
 
Monthly level provided:
5 hours
Level of provider:
L2
Monthly value of service:
$813




Service flow:
Core to Reorg
Service number:
19
 
 
Transition service title:
Disaster Recovery Support Knowledge, and Expertise
Service period in days:
210
 
 
Provider company:
Core
Provider department:
IT
Provider contact job title:
Director of IT support
Provider contact name:
Jeff Cochrane
 
 
Receiver company:
Reorg
Receiver department:
IT
Receiver contact job title:
Sr. Director IT
Receiver contact name:
Johnathan Hall
 
 
Monthly level provided:
12 hours
Level of provider:
L3
Monthly value of service:
$1,212




Service flow:
Core to Reorg
Service number:
20
 
 
Transition service title:
Infrastructure Support
Service period in days:
150
 
 
Provider company:
Core
Provider department:
IT
Provider contact job title:
VP IT
Provider contact name:
Becky Price
 
 
Receiver company:
Reorg
Receiver department:
IT
Receiver contact job title:
Sr. Director IT
Receiver contact name:
Jeff Bauserman
 
 
Monthly level provided:
160 hours
Level of provider:
L4
Monthly value of service:
$12,554




Service flow:
Core to Reorg
Service number:
21
 
 
Transition service title:
Client Services Support
Service period in days:
60
 
 
Provider company:
Core
Provider department:
IT
Provider contact job title:
VP IT
Provider contact name:
Becky Price
 
 
Receiver company:
Reorg
Receiver department:
IT
Receiver contact job title:
Sr. Director IT
Receiver contact name:
Jeff Bauserman
 
 
Monthly level provided:
50 hours
Level of provider:
L4
Monthly value of service:
$3,923




Service flow:
Core to Reorg
Service number:
22
 
 
Transition service title:
IT Policy Updates
Service period in days:
60
 
 
Provider company:
Core
Provider department:
IT
Provider contact job title:
Manager IT risk and administration
Provider contact name:
Suzanne Owens
 
 
Receiver company:
Reorg
Receiver department:
IT
Receiver contact job title:
Sr. Director IT
Receiver contact name:
Jeff Bauserman
 
 
Monthly level provided:
30 hours
Level of provider:
L4
Monthly value of service:
$2,354





Service flow:
Core to Reorg
Service number:
23
 
 
Transition service title:
IT Audit Support
Service period in days:
0
 
 
Provider company:
Core
Provider department:
IT
Provider contact job title:
Manager IT risk and administration
Provider contact name:
Suzanne Owens
 
 
Receiver company:
Reorg
Receiver department:
IT
Receiver contact job title:
Sr. Director IT
Receiver contact name:
Jeff Bauserman
 
 
Monthly level provided:
0 hours (inactive)
Level of provider:
L4
Monthly value of service:
$0




Service flow:
Core to Reorg
Service number:
24
 
 
Transition service title:
Delta and Oracle Support
Service period in days:
210
 
 
Provider company:
Core
Provider department:
IT
Provider contact job title:
Director of IT applications
Provider contact name:
Brad Bateman
 
 
Receiver company:
Reorg
Receiver department:
IT
Receiver contact job title:
Director of IT applications
Receiver contact name:
John Talbert
 
 
Monthly level provided:
15 hours
Level of provider:
L3
Monthly value of service:
$1,514





Service flow:
Core to Reorg
Service number:
25
 
 
Transition service title:
Trax knowledge and data access - Knowledge sharing around information in Tracts, contractual data, lease agreements
Service period in days:
180
 
 
Provider company:
Core
Provider department:
Land
Provider contact job title:
Manager
Provider contact name:
Vicki Duffy
 
 
Receiver company:
Reorg
Receiver department:
Land
Receiver contact job title:
Manager
Receiver contact name:
Michael Blackburn
 
 
Monthly level provided:
22 hours
Level of provider:
L4
Monthly value of service:
$1,687




Service flow:
Core to Reorg
Service number:
26
 
 
Transition service title:
General land support - Includes support from Core Land management to Reorg Land management (including Enterprise)
Service period in days:
180
 
 
Provider company:
Core
Provider department:
Land
Provider contact job title:
SVP Land
Provider contact name:
Scott Kreutzer
 
 
Receiver company:
Reorg
Receiver department:
Land
Receiver contact job title:
Manager
Receiver contact name:
Michael Blackburn
 
 
Monthly level provided:
34 hours
Level of provider:
L3
Monthly value of service:
$3,473





Service flow:
Core to Reorg
Service number:
27
 
 
Transition service title:
Mapping support and data
Service period in days:
180
 
 
Provider company:
Core
Provider department:
Land
Provider contact job title:
Coordinator
Provider contact name:
Spencer Young
 
 
Receiver company:
Reorg
Receiver department:
Land
Receiver contact job title:
Manager
Receiver contact name:
Michael Blackburn
 
 
Monthly level provided:
13 hours
Level of provider:
L5+
Monthly value of service:
$714




Service flow:
Core to Reorg
Service number:
28
 
 
Transition service title:
Training and support for New River Energy
Service period in days:
180
 
 
Provider company:
Core
Provider department:
Land
Provider contact job title:
Manager
Provider contact name:
Jim Cappucci
 
 
Receiver company:
Reorg
Receiver department:
Land
Receiver contact job title:
Manager
Receiver contact name:
Michael Blackburn
 
 
Monthly level provided:
13 hours
Level of provider:
L4
Monthly value of service:
$1,012




Service flow:
Core to Reorg
Service number:
29
 
 
Transition service title:
Assist and train the ReorgCo Legal Department in providing assistance and advice to the ReorgCo Land Department/Operations/Sourcing regarding the formation and administration of legal instruments related to land, coal reserves and other real property interests as well as the procurement of goods and services
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Frank Harrington
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Attorney
Receiver contact name:
Phil Monroe
 
 
Monthly level provided:
10 hours
Level of provider:
L2
Monthly value of service:
$1,627




Service flow:
Core to Reorg
Service number:
30
 
 
Transition service title:
Assist and train the ReorgCo Legal Department in providing assistance and advice to the Benefits Committee and the Benefits Department in designing and administering employee benefit plans (including the 3 defined benefit pension plans)
Service period in days:
90
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Suzan Moore
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Attorney
Receiver contact name:
Phil Monroe
 
 
Monthly level provided:
10 hours
Level of provider:
L2
Monthly value of service:
$1,627




Service flow:
Core to Reorg
Service number:
31
 
 
Transition service title:
Assist and train the ReorgCo Legal Department in performing the Corporate secretarial function
Service period in days:
90
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Mark Manno & Will Phillips
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Attorney
Receiver contact name:
Drew McCallister
 
 
Monthly level provided:
4 hours
Level of provider:
L2
Monthly value of service:
$651




Service flow:
Core to Reorg
Service number:
32
 
 
Transition service title:
Assist and train the ReorgCo Legal Department in providing assistance and advice to company departments with regard to internal company policies and procedures
Service period in days:
0
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Will Phillips & Suzan Moore
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Attorney
Receiver contact name:
Drew McCallister & Phil Monroe
 
 
Monthly level provided:
0 hours (inactive)
Level of provider:
L2
Monthly value of service:
$0




Service flow:
Core to Reorg
Service number:
33
 
 
Transition service title:
Assist and train the ReorgCo Legal Department to support the Corporate Secretary Functions and Activities - Board of Directors/Managers/Trustees
Service period in days:
90
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Assist. To Corp. Sec.
Provider contact name:
Jessica Clevinger
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Paralegal
Receiver contact name:
Kacee Hodge
 
 
Monthly level provided:
10 hours
Level of provider:
L5+
Monthly value of service:
$554




Service flow:
Core to Reorg
Service number:
34
 
 
Transition service title:
Assist and train the CoreCo Legal Department to provide Legal-Assistant/Paralegal Support Functions and Activities, Especially File and Systems Mgmt.
Service period in days:
0
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Attorney/Legal Assistant
Provider contact name:
Will Phillips & Lisa Cook
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Paralegal
Receiver contact name:
Kacee Hodge
 
 
Monthly level provided:
0 hours (inactive)
Level of provider:
L5+
Monthly value of service:
$0




Service flow:
Core to Reorg
Service number:
35
 
 
Transition service title:
Assist and train the ReorgCo Legal Department in addressing intellectual property matters.
Service period in days:
0
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Will Phillips
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Attorney
Receiver contact name:
Drew McCallister
 
 
Monthly level provided:
0 hours (inactive)
Level of provider:
L2
Monthly value of service:
$0




Service flow:
Core to Reorg
Service number:
36
 
 
Transition service title:
Assistance for the transition of litigation matters
Service period in days:
90
 
 
Provider company:
Core
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Frank Harrington
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Attorney
Receiver contact name:
Phil Monroe
 
 
Monthly level provided:
7 hours
Level of provider:
L2
Monthly value of service:
$1,085




Service flow:
Core to Reorg
Service number:
37
 
 
Transition service title:
AMP Support - Oracle Related Expertise
Service period in days:
180
 
 
Provider company:
Core
Provider department:
Other
Provider contact job title:
Director Maintenane
Provider contact name:
Cullen Medley
 
 
Receiver company:
Reorg
Receiver department:
Other
Receiver contact job title:
VP - Maintenance
Receiver contact name:
TBD
 
 
Monthly level provided:
10 hours
Level of provider:
L4
Monthly value of service:
$785




Service flow:
Core to Reorg
Service number:
38
 
 
Transition service title:
Sourcing ERP Support
Service period in days:
90
 
 
Provider company:
Core
Provider department:
Sourcing
Provider contact job title:
Director- Sourcing Admin
Provider contact name:
Allen Peppler
 
 
Receiver company:
Reorg
Receiver department:
Sourcing
Receiver contact job title:
Manager-Contract Admin
Receiver contact name:
Donald Robinson
 
 
Monthly level provided:
44 hours
Level of provider:
L3
Monthly value of service:
$4,442




Service flow:
Core to Reorg
Service number:
39
 
 
Transition service title:
Strategic Sourcing Knowledge
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Sourcing
Provider contact job title:
Director-Strategic Sourcing
Provider contact name:
Danny Hinkle
 
 
Receiver company:
Reorg
Receiver department:
Sourcing
Receiver contact job title:
SVP-Strategic Sourcing
Receiver contact name:
Macs Hall
 
 
Monthly level provided:
44 hours
Level of provider:
L3
Monthly value of service:
$4,442





Service flow:
Core to Reorg
Service number:
40
 
 
Transition service title:
WY Gross Products Return Support
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Accounting (including BP&A)
Provider contact job title:
Regional Controller
Provider contact name:
Tammy Okray
 
 
Receiver company:
Reorg
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Roger Ketron
 
 
Monthly level provided:
20 hours
Level of provider:
L3
Monthly value of service:
$2,019




Service flow:
Core to Reorg
Service number:
41
 
 
Transition service title:
PAC closure with FEC
Service period in days:
0
 
 
Provider company:
Core
Provider department:
Communications
Provider contact job title:
Manager – Corporate Communications & PAC Admin.
Provider contact name:
Teresa Anderson
 
 
Receiver company:
Reorg
Receiver department:
Legal
Receiver contact job title:
Paralegal
Receiver contact name:
Kacee Hodge
 
 
Monthly level provided:
0 hours (inactive)
Level of provider:
L4
Monthly value of service:
$0




Service flow:
Core to Reorg
Service number:
42
 
 
Transition service title:
Finalize, wind down, and delivery of Bristol office building
Service period in days:
60
 
 
Provider company:
Core
Provider department:
Land
Provider contact job title:
SVP Land
Provider contact name:
Scott Kreutzer
 
 
Receiver company:
Reorg
Receiver department:
N/A (landlord)
Receiver contact job title:
N/A (landlord)
Receiver contact name:
N/A (landlord)
 
 
Monthly level provided:
0 hours (no charge)
Level of provider:
L4
Monthly value of service:
$0




Schedule II

This Schedule lists Services to be provided by ANR (“ Reorg ”) to CoreCo (“ Core ”).






Service flow:
Reorg to Core
Service number:
1

Transition service title:
Income Tax Preparation
Service period in days:
90

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Sr. Manager
Provider contact name:
Amy McKinney

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Sr. Manager
Receiver contact name:
Anita Fore

Monthly level provided:
80 hours
Level of provider:
L3
Monthly value of service:
$8,077




Service flow:
Reorg to Core
Service number:
2

Transition service title:
Field AP and accounting support
Service period in days:
30

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Manager
Provider contact name:
Kahla McClure

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Tammy Okray/Dean Swaney

Monthly level provided:
320 hours
Level of provider:
L4
Monthly value of service:
$25,108





Service flow:
Reorg to Core
Service number:
3

Transition service title:
Sales & Property Tax
Service period in days:
90

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Sr. Accountant
Provider contact name:
Pam Foleno

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Todd Munsey

Monthly level provided:
20 hours
Level of provider:
L4
Monthly value of service:
$1,569





Service flow:
Reorg to Core
Service number:
4

Transition service title:
Monthly close support
Service period in days:
60

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Monthly close support
Provider contact name:
Roger Ketron

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Todd Munsey

Monthly level provided:
144 hours
Level of provider:
L4
Monthly value of service:
$11,298





Service flow:
Reorg to Core
Service number:
5

Transition service title:
Freight/Inventory Acctg
Service period in days:
60

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Dir. Revenue and Inventory
Provider contact name:
Robert Hutton

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Dir. General Accounting
Receiver contact name:
Kristy Edwards

Monthly level provided:
20 hours
Level of provider:
L4
Monthly value of service:
$1,569





Service flow:
Reorg to Core
Service number:
6

Transition service title:
A/P and A/R Support
Service period in days:
60

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Dir. General Accounting
Provider contact name:
Eddie Guy

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Dir. General Accounting
Receiver contact name:
Kristy Edwards

Monthly level provided:
57 hours
Level of provider:
L4
Monthly value of service:
$4,446






Service flow:
Reorg to Core
Service number:
7

Transition service title:
A/P Support (paying and getting reimbursed for invoices)
Service period in days:
30

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Manager
Provider contact name:
Kahla McClure

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Dir. General Accounting
Receiver contact name:
Kristy Edwards

Monthly level provided:
24 hours
Level of provider:
L4
Monthly value of service:
$1,883





Service flow:
Reorg to Core
Service number:
8

Transition service title:
Tax Basis/Attribute Refresh
Service period in days:
60

Provider company:
Reorg
Provider department:
Accounting (including BP&A)
Provider contact job title:
Controller
Provider contact name:
Roger Ketron

Receiver company:
Core
Receiver department:
Accounting (including BP&A)
Receiver contact job title:
Controller
Receiver contact name:
Todd Munsey

Monthly level provided:
86 hours
Level of provider:
L3
Monthly value of service:
$8,683





Service flow:
Reorg to Core
Service number:
9

Transition service title:
Media Relations / PIER
Service period in days:
90

Provider company:
Reorg
Provider department:
Communications
Provider contact job title:
Director, Media Relations
Provider contact name:
Steve Hawkins

Receiver company:
Core
Receiver department:
Communications
Receiver contact job title:
VP, Communications & Government Affairs
Receiver contact name:
Rick Axthelm

Monthly level provided:
43 hours
Level of provider:
L3
Monthly value of service:
$4,341





Service flow:
Reorg to Core
Service number:
10

Transition service title:
Environmental ‐ integration of Delta
Service period in days:
120

Provider company:
Reorg
Provider department:
Environmental
Provider contact job title:
VP ‐ Environmental and ECM
Provider contact name:
Shelley Surles and Claire Vaught

Receiver company:
Core
Receiver department:
Environmental
Receiver contact job title:
VP‐Environmental
Receiver contact name:
John Paul Jones

Monthly level provided:
10 hours
Level of provider:
L4
Monthly value of service:
$785





Service flow:
Reorg to Core
Service number:
11

Transition service title:
Environmental ‐ control file updates
Service period in days:
365

Provider company:
Reorg
Provider department:
Environmental
Provider contact job title:
VP‐Environmental
Provider contact name:
Russ Lambert

Receiver company:
Core
Receiver department:
Environmental
Receiver contact job title:
VP‐Environmental
Receiver contact name:
John Paul Jones

Monthly level provided:
3 hours
Level of provider:
L4
Monthly value of service:
$196





Service flow:
Reorg to Core
Service number:
12

Transition service title:
Environmental ‐ permit transfers
Service period in days:
365

Provider company:
Reorg
Provider department:
Environmental
Provider contact job title:
VP ‐ Environmental and ECMs
Provider contact name:
Russ Lambert

Receiver company:
Core
Receiver department:
Environmental
Receiver contact job title:
VP‐Environmental
Receiver contact name:
John Paul Jones

Monthly level provided:
5 hours
Level of provider:
L4
Monthly value of service:
$392





Service flow:
Reorg to Core
Service number:
13

Transition service title:
Environmental ‐ management system implementation
Service period in days:
180

Provider company:
Reorg
Provider department:
Environmental
Provider contact job title:
VP ‐ Environmental
Provider contact name:
Shelley Surles

Receiver company:
Core
Receiver department:
Environmental
Receiver contact job title:
VP‐Environmental
Receiver contact name:
John Paul Jones

Monthly level provided:
3 hours
Level of provider:
L4
Monthly value of service:
$262





Service flow:
Reorg to Core
Service number:
14

Transition service title:
Health and welfare/retirement support including document requests
Service period in days:
210

Provider company:
Reorg
Provider department:
HR
Provider contact job title:
VP HR
Provider contact name:
Judy Hill

Receiver company:
Core
Receiver department:
HR
Receiver contact job title:
Director Benefits
Receiver contact name:
Kristie Kestner

Monthly level provided:
24 hours
Level of provider:
L2
Monthly value of service:
$3,835





Service flow:
Reorg to Core
Service number:
15

Transition service title:
Payroll/tax support
Service period in days:
180

Provider company:
Reorg
Provider department:
HR
Provider contact job title:
Director Payroll
Provider contact name:
Melissa Stanley

Receiver company:
Core
Receiver department:
HR
Receiver contact job title:
Analyst Payroll
Receiver contact name:
Kristy Lawson

Monthly level provided:
5 hours
Level of provider:
L3
Monthly value of service:
$538





Service flow:
Reorg to Core
Service number:
16

Transition service title:
Mail forwarding services
Service period in days:
180

Provider company:
Reorg
Provider department:
HR
Provider contact job title:
Receptionist
Provider contact name:
Melanie Hutton

Receiver company:
Core
Receiver department:
HR
Receiver contact job title:
Mail expeditor
Receiver contact name:
Ernie Ramsey

Monthly level provided:
22 hours
Level of provider:
L5+
Monthly value of service:
$1,901





Service flow:
Reorg to Core
Service number:
17

Transition service title:
Telecommunication Services (phone, data, internet, wireless, etc.) – based on a 50/50 split of estimated billing
Service period in days:
90

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
$150,000
Level of provider:
N/A
Monthly value of service:
$150,000





Service flow:
Reorg to Core
Service number:
18

Transition service title:
Wireless
Service period in days:
30

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
$35,000
Level of provider:
N/A
Monthly value of service:
$35,000





Service flow:
Reorg to Core
Service number:
19

Transition service title:
File Access
Service period in days:
180

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
0 hours(no charge)
Level of provider:
N/A
Monthly value of service:
$0





Service flow:
Reorg to Core
Service number:
20

Transition service title:
Email Forwarding
Service period in days:
30

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
24 hours
Level of provider:
L5+
Monthly value of service:
$1,329





Service flow:
Reorg to Core
Service number:
21

Transition service title:
Software Application Licensing
Service period in days:
210

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
0 hours (no charge)
Level of provider:
N/A
Monthly value of service:
$0





Service flow:
Reorg to Core
Service number:
22

Transition service title:
Software Support
Service period in days:
210

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
120 hours
Level of provider:
L5+
Monthly value of service:
$6,646





Service flow:
Reorg to Core
Service number:
23

Transition service title:
Infrastructure Support
Service period in days:
180

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
80 hours
Level of provider:
L4
Monthly value of service:
$6,277





Service flow:
Reorg to Core
Service number:
24

Transition service title:
Client Services Support
Service period in days:
90

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price

Monthly level provided:
25 hours
Level of provider:
L5+
Monthly value of service:
$1,385





Service flow:
Reorg to Core
Service number:
25

Transition service title:
Trax knowledge and data access ‐ Knowledge sharing around information in Tracts, contractual data, lease agreements
Service period in days:
60

Provider company:
Reorg
Provider department:
Land
Provider contact job title:
Manager
Provider contact name:
Michael Blackburn

Receiver company:
Core
Receiver department:
Land
Receiver contact job title:
SVP Land
Receiver contact name:
Scott Kreutzer

Monthly level provided:
9 hours
Level of provider:
L4
Monthly value of service:
$675





Service flow:
Reorg to Core
Service number:
26

Transition service title:
General land support ‐ Includes support from Reorg Land management to Core Land management
Service period in days:
90

Provider company:
Reorg
Provider department:
Land
Provider contact job title:
Manager
Provider contact name:
Michael Blackburn

Receiver company:
Core
Receiver department:
Land
Receiver contact job title:
SVP Land
Receiver contact name:
Scott Kreutzer

Monthly level provided:
9 hours
Level of provider:
L4
Monthly value of service:
$675





Service flow:
Reorg to Core
Service number:
27

Transition service title:
Mapping data ‐ Mapping data as needed
Service period in days:
180

Provider company:
Reorg
Provider department:
Land
Provider contact job title:
Manager
Provider contact name:
Michael Blackburn

Receiver company:
Core
Receiver department:
Land
Receiver contact job title:
Coordinator
Receiver contact name:
Spencer Young

Monthly level provided:
4 hours
Level of provider:
L4
Monthly value of service:
$337





Service flow:
Reorg to Core
Service number:
28

Transition service title:
Assist and train the NewCo Legal Department in providing assistance and advice to Operations management and the Environmental Department in achieving Environmental regulatory compliance, particularly in regard to the EPA Consent Decree
Service period in days:
180

Provider company:
Reorg
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Drew McCallister

Receiver company:
Core
Receiver department:
Legal
Receiver contact job title:
Attorney
Receiver contact name:
Suzan Moore

Monthly level provided:
10 hours
Level of provider:
L2
Monthly value of service:
$1,627





Service flow:
Reorg to Core
Service number:
29

Transition service title:
Assist and train the CoreCo Legal Department to provide Other Paralegal Functions, Especially Litigation Support and Reporting
Service period in days:
180

Provider company:
Reorg
Provider department:
Legal
Provider contact job title:
Paralegal
Provider contact name:
Kacee Hodge

Receiver company:
Core
Receiver department:
Legal
Receiver contact job title:
Assist. To Corp. Sec./Legal Assistant
Receiver contact name:
Jessica Clevinger & Lisa Cook

Monthly level provided:
10 hours
Level of provider:
L5+
Monthly value of service:
$554





Service flow:
Reorg to Core
Service number:
30

Transition service title:
DrillBase Software Support
Service period in days:
180

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
Other
Receiver contact job title:
Director Geology
Receiver contact name:
Scott Peterson

Monthly level provided:
10 hours
Level of provider:
L5+
Monthly value of service:
$554





Service flow:
Reorg to Core
Service number:
31

Transition service title:
Pi support to prep plants
Service period in days:
365

Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman

Receiver company:
Core
Receiver department:
Operations
Receiver contact job title:
Director Plants
Receiver contact name:
Van Davis

Monthly level provided:
10 hours
Level of provider:
L4
Monthly value of service:
$785





Service flow:
Reorg to Core
Service number:
32

Transition service title:
Temporally storing Surface Equipment / Assets
Service period in days:
365

Provider company:
Reorg
Provider department:
Operations
Provider contact job title:
VP ‐ Maintenance
Provider contact name:
Jimbo Nagy

Receiver company:
Core
Receiver department:
Other
Receiver contact job title:
VP ‐ Tech Services
Receiver contact name:
Philip Saunders

Monthly level provided:
7 hours
Level of provider:
L5+
Monthly value of service:
$369





Service flow:
Reorg to Core
Service number:
33

Transition service title:
Assessment processing
Service period in days:
180

Provider company:
ReOrg
Provider department:
Other
Provider contact job title:
Administrative Asst
Provider contact name:
Donna Moore

Receiver company:
Core
Receiver department:
Other
Receiver contact job title:
Safety Clerk
Receiver contact name:
Nate Clark

Monthly level provided:
22 hours
Level of provider:
L5+
Monthly value of service:
$1,191





Service flow:
Reorg to Core
Service number:
34

Transition service title:
Respirable Dust Rule Expertise
Service period in days:
180

Provider company:
ReOrg
Provider department:
Other
Provider contact job title:
Director
Provider contact name:
Vernon Johnson

Receiver company:
Core
Receiver department:
Other
Receiver contact job title:
VP Safety
Receiver contact name:
Allen Dupree

Monthly level provided:
17 hours
Level of provider:
L3
Monthly value of service:
$1,737





Service flow:
Reorg to Core
Service number:
35

Transition service title:
Office space in Chapmanville (3 offices plus conference room) and Beckley (2 offices plus conference room)
Service period in days:
180

Provider company:
ReOrg
Provider department:
Other
Provider contact job title:
TBD
Provider contact name:
TBD

Receiver company:
Core
Receiver department:
Other
Receiver contact job title:
VP ‐ Tech Services
Receiver contact name:
Philip Saunders

Monthly level provided:
$1,000
Level of provider:
N/A
Monthly value of service:
$1,000





Service flow:
Reorg to Core
Service number:
36

Transition service title:
Julian security monitoring support to RRLA
Service period in days:
90

Provider company:
ReOrg
Provider department:
Operations
Provider contact job title:
TBD
Provider contact name:
TBD

Receiver company:
Core
Receiver department:
Operations
Receiver contact job title:
TBD
Receiver contact name:
TBD

Monthly level provided:
$500
Level of provider:
N/A
Monthly value of service:
$500





Service flow:
Reorg to Core
Service number:
37

Transition service title:
Strategic Sourcing Knowledge
Service period in days:
120

Provider company:
Reorg
Provider department:
Sourcing
Provider contact job title:
SVP‐Strategic Sourcing
Provider contact name:
Macs Hall

Receiver company:
Core
Receiver department:
Sourcing
Receiver contact job title:
Director‐Strategic Sourcing
Receiver contact name:
Danny Hinkle

Monthly level provided:
44 hours
Level of provider:
L3
Monthly value of service:
$4,442





Service flow:
Reorg to Core
Service number:
38

Transition service title:
Materials Management Knowledge (Warehousing)
Service period in days:
120

Provider company:
Reorg
Provider department:
Sourcing
Provider contact job title:
Sr. Director‐Sourcing Support
Provider contact name:
Ed Green

Receiver company:
Core
Receiver department:
Sourcing
Receiver contact job title:
Director‐Strategic Sourcing
Receiver contact name:
Danny Hinkle

Monthly level provided:
44 hours
Level of provider:
L3
Monthly value of service:
$4,442





Service flow:
Reorg to Core
Service number:
39

Transition service title:
Contract Administration and Maintenance (Corporate & Regional Agreements)
Service period in days:
90

Provider company:
Reorg
Provider department:
Sourcing
Provider contact job title:
Manager‐Contract Admin
Provider contact name:
Donald Robinson

Receiver company:
Core
Receiver department:
Sourcing
Receiver contact job title:
Director‐Sourcing Admin
Receiver contact name:
Allen Peppler

Monthly level provided:
44 hours
Level of provider:
L3
Monthly value of service:
$4,442





Service flow:
Reorg to Core
Service number:
40

Transition service title:
Bristol office space
Service period in days:
60

Provider company:
Reorg
Provider department:
HR
Provider contact job title:
VP HR
Provider contact name:
Judy Hill

Receiver company:
Core
Receiver department:
Land
Receiver contact job title:
SVP Land
Receiver contact name:
Scott Kreutzer

Monthly level provided:
0 hours (no charge)
Level of provider:
N/A
Monthly value of service:
$0





Service flow:
Reorg to Core
Service number:
41

Transition service title:
Julian office space
Service period in days:
90

Provider company:
Reorg
Provider department:
Legal
Provider contact job title:
Attorney
Provider contact name:
Drew McCallister

Receiver company:
Core
Receiver department:
Operations
Receiver contact job title:
VP – Tech Services
Receiver contact name:
Philip Saunders

Monthly level provided:
$200
Level of provider:
N/A
Monthly value of service:
$200





Schedule III




Core to Reorg
Service Detail


Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
1
Monthly close support
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
370
Monthly
370
Labor hours
L4
$
29,030.77

 
 
 
 
2
Financial reporting
60
2
Core
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Cristina Perez
Reorg
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Megan Meador
27
Monthly
27
Labor hours
L3
$
2,692.31

 
 
 
 
3
ARO support
60
2
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
Reorg
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Megan Meador
30
Monthly
30
Labor hours
L4
$
2,353.85

 
 
 
 
4
Corporate Acctg
60
2
Core
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Cristina Perez
Reorg
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Megan Meador
20
Monthly
20
Labor hours
L4
$
1,569.23

 
 
 
 
5
Fresh-start Acctg
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
167
Monthly
167
Labor hours
L3
$
16,826.92

 
 
 
 
6
Sales/AR Acctg
60
2
Core
Accounting (including BP&A)
Sr. Manager
Randy Philips
Reorg
Accounting (including BP&A)
Dir. Revenue and Inventory
Robert Hutton
20
Monthly
20
Labor hours
L4
$
1,569.23

 
 
 
 
7
Acquisition Accounting
90
3
Core
Accounting (including BP&A)
SVP Technical Accounting
Alan Jones
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
100
Monthly
100
Labor hours
L3
$
10,096.15

 
 
 
 
8
Tax Basis/Attribute Refresh
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
20
Weekly
86
Labor hours
L3
$
8,682.69

 
 
 
 
9
Environmental - EPA CD report
90
3
Core
Environmental
VP-Environmental, Environmental Compliance Managers, and GMs
John Paul Jones
Reorg
Environmental
VP-Environmental
Shelley Surles
22.5
quarterly
8
Labor hours
L4
$
588.46

Successful submission of EPA CD Report with all required information in October 2016
Shelley Surles
One-time Item
All required signatures, data and information shall be provided no later than 10/15/2016. All other questions and request for information shall be answered within 24 hours.
10
Environmental - KY operations
0
0
Core
Environmental
VP - Environmental
John Paul Jones
Reorg
Environmental
VP-Environmental
Russ Lambert
0
Weekly
0
Labor hours
L4
$
—

Successful transfer of information and knowledge regarding Kentucky operations and regulations
Russ Lambert
Training of Russ Lambert to assume responsibility for corportate environmental support for the operations in Kentucky
Response to availability within one business day
11
HR Employee Files
0
0
Core
HR
Manager HR
Sherry Bowers
Reorg
HR
Manager Benefits
Amy Perrigan
0
quarterly
0
Labor hours
L4
$
—

 
Logan Bateman
Handle the conversion of employee files
Will provide data transfer points within 48 hours of a request
12
Bonus Calculation Support/OSEB/Cash Retention/LTIP
90
3
Core
HR
Sr. Dir-HR
Logan Bateman
Reorg
HR
Director HR
Judy Hill and Jeff Gillenwater
20
quarterly
7
Labor hours
L3
$
673.08

 
Chris Matras
Understand and administer bonus plans and design going forward
Recipient requests help in writing and provider responds within 48 hours with availability to help
13
Severance & WARN Payments
30
1
Core
HR
Sr. Dir-HR
Logan Bateman
Reorg
HR
Director HR
Judy Hill and Jeff Gillenwater
15
quarterly
5
Labor hours
L3
$
504.81

 
Chris Matras
Understand and implement Severance calculations and WARN notices
Recipient requests help in writing and provider responds within 48 hours with availability to help
14
HR Data Processes
60
2
Core
HR
Manager HR
Sherry Bowers
Reorg
HR
HR Rep
Whitney Cole
10
quarterly
3
Labor hours
L4
$
261.54

 
Whitney Cole
Celine to assist with Oracle data issues that arise in the system throughout Oracle's life
Recipient requests help in writing and provider responds within 48 hours with availability to help
15
Compensation support
60
2
Core
HR
VP HR
Burke Vander Lind
Reorg
HR
VP HR
Judy Hill
10
quarterly
3
Labor hours
L2
$
542.31

 
Judy Hill
 
Recipient requests help in writing and provider responds within 48 hours with availability to help




Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
16
HR/federal contractor compliance support
90
3
Core
HR
Sr. Dir-HR
Logan Bateman
Reorg
HR
Director HR
Chris Matras
15
quarterly
5
Labor hours
L4
$
392.31

 
Chris Matras
 
Recipient requests help in writing and provider responds within 48 hours with availability to help
17
Payroll support
60
2
Core
HR
Sr. Director Payroll and HRIS
Jen Gambill
Reorg
HR
Director Payroll
Melissa Stanley
20
quarterly
7
Labor hours
L4
$
523.08

 
Melissa Stanley
 
Recipient requests help in writing and provider responds within 48 hours with availability to help
18
General IT Support, Knowledge, and Expertise
210
7
Core
IT
VP IT
Becky Price
Reorg
IT
Sr. Director IT
Jeff Bauserman
5
monthly
5
Labor hours
L2
$
813.46

 
 
 
 
19
Disaster Recovery Support Knowledge, and Expertise
210
7
Core
IT
Director of IT support
Jeff Cochrane
Reorg
IT
Sr. Director IT
Johnathan Hall
12
monthly
12
Labor hours
L3
$
1,211.54

 
 
 
 
20
Infrastructure Support
150
5
Core
IT
VP IT
Becky Price
Reorg
IT
Sr. Director IT
Jeff Bauserman
160
Monthly
160
Labor hours
L4
$
12,553.85

 
 
 
 
21
Client Services Support
60
2
Core
IT
VP IT
Becky Price
Reorg
IT
Sr. Director IT
Jeff Bauserman
50
Monthly
50
Labor hours
L4
$
3,923.08

 
 
 
 
22
IT Policy Updates
60
2
Core
IT
Manager IT risk and administration
Suzanne Owens
Reorg
IT
Sr. Director IT
Jeff Bauserman
30
Monthly
30
Labor hours
L4
$
2,353.85

 
 
 
 
23
IT Audit Support
0
0
Core
IT
Manager IT risk and administration
Suzanne Owens
Reorg
IT
Sr. Director IT
Jeff Bauserman
0
Monthly
0
Labor hours
L4
$
—

 
 
 
 
24
Delta and Oracle Support
210
7
Core
IT
Director of IT applications
Brad Bateman
Reorg
IT
Director of IT applications
John Talbert
15
Monthly
15
Labor hours
L3
$
1,514.42

 
 
 
As necessary, Reorg personnel may request background knowledge and/or expertise from employees of NewCo.
25
Trax knowledge and data access - Knowledge sharing around information in Tracts, contractual data, lease agreements
180
6
Core
Land
Manager
Vicki Duffy
Reorg
Land
Manager
Michael Blackburn
5
Weekly
22
Labor hours
L4
$
1,686.92

Making ReorgCo & CoreCo self-sufficient
Recipient Contact Person
 
Recipient requests help in writing/phone call and provider responds within one business day with availability to help
26
General land support - Includes support from Core Land management to Reorg Land management (including Enterprise)
180
6
Core
Land
SVP Land
Scott Kreutzer
Reorg
Land
Manager
Michael Blackburn
8
Weekly
34
Labor hours
L3
$
3,473.08

 
 
 
 
27
Mapping support and data
180
6
Core
Land
Coordinator
Spencer Young
Reorg
Land
Manager
Michael Blackburn
3
Weekly
13
Labor hours
L5+
$
714.46

 
 
 
 
28
Training and support for New River Energy
180
6
Core
Land
Manager
Jim Cappucci
Reorg
Land
Manager
Michael Blackburn
3
Weekly
13
Labor hours
L4
$
1,012.15

 
 
 
 




Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
29
Assist and train the ReorgCo Legal Department in providing assistance and advice to the ReorgCo Land Department/Operations/Sourcing regarding the formation and administration of legal instruments related to land, coal reserves and other real property interests as well as the procurement of goods and services
60
2
Core
Legal
Attorney
Frank Harrington
Reorg
Legal
Attorney
Phil Monroe
10
monthly
10
Labor hours
L2
$
1,626.92

Reorg Legal fully trained to provide support of Reorg Land
Phil Monroe
Fully utilize this transition service; Work with Land Dept to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help.
30
Assist and train the ReorgCo Legal Department in providing assistance and advice to the Benefits Committee and the Benefits Department in designing and administering employee benefit plans (including the 3 defined benefit pension plans)
90
3
Core
Legal
Attorney
Suzan Moore
Reorg
Legal
Attorney
Phil Monroe
10
monthly
10
Labor hours
L2
$
1,626.92

Reorg Legal fully trained to provide support of Reorg Benefits Dept
Phil Monroe
Fully utilize this transition service; Work with Benefits Dept to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help.
31
Assist and train the ReorgCo Legal Department in performing the Corporate secretarial function
90
3
Core
Legal
Attorney
Mark Manno & Will Phillips
Reorg
Legal
Attorney
Drew McCallister
4
monthly
4
Labor hours
L2
$
650.77

Reorg Legal fully trained to perform Corporate Secretary function for Reorg
Drew McCallister
Fully utilize this transition service; Work with Reorg Board to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help.
32
Assist and train the ReorgCo Legal Department in providing assistance and advice to company departments with regard to internal company policies and procedures
0
0
Core
Legal
Attorney
Will Phillips & Suzan Moore
Reorg
Legal
Attorney
Drew McCallister & Phil Monroe
0
monthly
0
Labor hours
L2
$
—

Reorg Legal fully trained to provide support of Reorg management and Board policy administration
Drew McCallister & Phil Monroe
Fully utilize this transition service; Work with Reorg management and Board to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help.
33
Assist and train the ReorgCo Legal Department to support the Corporate Secretary Functions and Activities - Board of Directors/Managers/Trustees
90
3
Core
Legal
Assist. To Corp. Sec.
Jessica Clevinger
Reorg
Legal
Paralegal
Kacee Hodge
10
monthly
10
Labor hours
L5+
$
553.85

Reorg Legal fully trained to provide support of Reorg Corporate Secretary functions and Board meetings and actions; Reorg Paralegal able to successfully perform functions described in columns S through W
Drew McCallister & Kacee Hodge
Fully utilize this transition service; Work with Reorg Corporate Secretary and Board to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help. Recipient also spends at least 3 days per month for the first 3 months shadowing Provider




Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
34
Assist and train the CoreCo Legal Department to provide Legal-Assistant/Paralegal Support Functions and Activities, Especially File and Systems Mgmt.
0
0
Core
Legal
Attorney/Legal Assistant
Will Phillips & Lisa Cook
Reorg
Legal
Paralegal
Kacee Hodge
0
monthly
0
Labor hours
L5+
$
—

Reorg Legal fully trained to provide Paralegal/Legal Assistant Support to Reorg Legal Dept, especially file and systems management; Reorg Paralegal able to successfully perform functions described in columns S through V
Phil Monroe & Kacee Hodge
Fully utilize this transition service; Work with Core Legal Dept Attorneys to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help. Recipient also spends at least 3 days per month for the first 3 months shadowing Provider
35
Assist and train the ReorgCo Legal Department in addressing intellectual property matters.
0
0
Core
Legal
Attorney
Will Phillips
Reorg
Legal
Attorney
Drew McCallister
0
semiannually
0
Labor hours
L2
$
—

Reorg Legal fully trained to handle Reorg IP issues
Drew McCallister
Fully utilize this transition service; Work with outside counsel to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help.
36
Assistance for the transition of litigation matters
90
3
Core
Legal
Attorney
Frank Harrington
Reorg
Legal
Attorney
Phil Monroe
7
Monthly
7
Labor hours
L2
$
1,084.62

 
 
 
 
37
AMP Support - Oracle Related Expertise
180
6
Core
Other
Director Maintenane
Cullen Medley
Reorg
Other
VP - Maintenance
TBD
10
monthly
10
Labor hours
L4
$
784.62

hours needed per month
Jimbo Nagy
build skill level of internal party
 
38
Sourcing ERP Support
90
3
Core
Sourcing
Director- Sourcing Admin
Allen Peppler
Reorg
Sourcing
Manager-Contract Admin
Donald Robinson
2
daily
44
Labor hours
L3
$
4,442.31

Use first 2 weeks of requests for baseline and measure reductions in assistance requests. Measure variance of number of reduction in requests for improvement
SVP-Strategic Sourcing
Documentation of shared information.
Help requests are documented via email with responder reply within 24 hour period of submission.
39
Strategic Sourcing Knowledge
60
2
Core
Sourcing
Director-Strategic Sourcing
Danny Hinkle
Reorg
Sourcing
SVP-Strategic Sourcing
Macs Hall
2
daily
44
Labor hours
L3
$
4,442.31

Use first 2 weeks of requests for baseline and measure reductions in assistance requests. Measure variance of number of reduction in requests for improvement
SVP-Strategic Sourcing
Documentation of shared information.
Help requests are documented via email with responder reply within 24 hour period of submission.
40
WY Gross Products Return Support
60
2
Core
Accounting (including BP&A)
Regional Controller
Tammy Okray
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
20
Monthly
20
Labor hours
L3
$
2,019.23

 
 
 
 
41
PAC closure with FEC
0
0
Core
Communications
Manager – Corporate Communications & PAC Admin.
Teresa Anderson
Reorg
Legal
Paralegal
Kacee Hodge
0
Monthly
0
Labor hours
L4
$
—

 
 
 
 
42
Finalize, wind down, and delivery of Bristol office building
60
2
Core
Land
SVP Land
Scott Kreutzer
Reorg
N/A
N/A
N/A
0
Monthly
0
Labor hours
L2
 
 
 
 
 




Reorg to Core
Service Detail

Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
1
Income Tax Preparation
90
3
Reorg
Accounting (including BP&A)
Sr. Manager
Amy McKinney
Core
Accounting (including BP&A)
Sr. Manager
Anita Fore
80
Monthly
80
Labor hours
L3
$
8,076.92

 
 
 
 
2
Field AP and accounting support
30
1
Reorg
Accounting (including BP&A)
Manager
Kahla McClure
Core
Accounting (including BP&A)
Controller
Tammy Okray/Dean Swaney
320
Monthly
320
Labor hours
L4
$
25,107.69

 
 
 
 
3
Sales & Property Tax
90
3
Reorg
Accounting (including BP&A)
Sr. Accountant
Pam Foleno
Core
Accounting (including BP&A)
Controller
Todd Munsey
20
Monthly
20
Labor hours
L4
$
1,569.23

 
 
 
 
4
Monthly close support
60
2
Reorg
Accounting (including BP&A)
Monthly close support
Roger Ketron
Core
Accounting (including BP&A)
Controller
Todd Munsey
144
Monthly
144
Labor hours
L4
$
11,298.46

 
 
 
 
5
Freight/Inventory Acctg
60
2
Reorg
Accounting (including BP&A)
Dir. Revenue and Inventory
Robert Hutton
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
20
Monthly
20
Labor hours
L4
$
1,569.23

 
 
 
 
6
A/P and A/R Support
60
2
Reorg
Accounting (including BP&A)
Dir. General Accounting
Eddie Guy
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
57
Monthly
57
Labor hours
L4
$
4,446.15

 
 
 
 
7
A/P Support (paying and getting reimbursed for invoices)
30
1
Reorg
Accounting (including BP&A)
Manager
Kahla McClure
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
24
Monthly
24
Labor hours
L4
$
1,883.08

 
 
Bank accounts for Core opened by emergence
 
8
Tax Basis/Attribute Refresh
60
2
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
Core
Accounting (including BP&A)
Controller
Todd Munsey
20
Weekly
86
Labor hours
L3
$
8,682.69

 
 
 
 
9
Media Relations / PIER
90
3
Reorg
Communications
Director, Media Relations
Steve Hawkins
Core
Communications
VP, Communications & Government Affairs
Rick Axthelm
10
weekly
43
Labor hours
L3
$
4,341.35

Successful transition/duplication of local, regional, and national media relationships to communications team at NewCo; transfer of knowledge (and training where necessary) for comms professionals at NewCo regarding media relations history of core assets, key data on target media markets, and any needed support duties; and the set-up of a functional PIER system for NewCo and training support.
Rick Axthelm will track and assess service performance.
Knowledge transfer and as-needed training will begin on day one of the TSA; NewCo comms professionals will handle actual media interactions for NewCo and, over the term of the TSA, will work to do so with reducing support from ReorgCo under the TSA; and PIER training will occur concurrently with setting up the new PIER system.
Time allotments for knowledge transfer and training will be pre-set and agreed upon by both parties of the TSA on a weekly basis. Additional media support will be requested on a needs-basis when issues arise where consultation with ReorgCo professional is necessary, but such interactions will be tracked and documented. Setting up the PIER system for NewCo, and associated system training, will be front-loaded and more time intensive during the first 30-60 days of the TSA term. Again, specific time allotments will be discussed in advance on a weekly basis and tracked.
10
Environmental - integration of Delta
120
4
Reorg
Environmental
VP - Environmental and ECM
Shelley Surles and Claire Vaught
Core
Environmental
VP-Environmental
John Paul Jones
2
Weekly
10
Labor hours
L4
$
784.62

Successful integration and use of the Delta Environmental database to manage data and generate reports
John Paul Jones
Training of John Paul Jones and staff to run reports without assistance from Reorg.
Response to availability within one business day
11
Environmental - control file updates
365
12
Reorg
Environmental
VP-Environmental
Russ Lambert
Core
Environmental
VP-Environmental
John Paul Jones
2.5
Monthly
3
Labor hours
L4
$
196.15

Assistance with respect to ownership and control file updates for Core, leading to successful permit transfers
John Paul Jones
Short term support service that will be replaced by Core team once Core is set up in all states
Response to availability within one business day




Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
12
Environmental - permit transfers
365
12
Reorg
Environmental
VP - Environmental and ECMs
Russ Lambert
Core
Environmental
VP-Environmental
John Paul Jones
5
Monthly
5
Labor hours
L4
$
392.31

Successful transfer of permits to Core from Reorg
John Paul Jones
Short term support service that may be addressed in a Permit Transfer Agreement as well
Response to availability within one business day
13
Environmental - management system implementation
180
6
Reorg
Environmental
VP - Environmental
Shelley Surles
Core
Environmental
VP-Environmental
John Paul Jones
1
Weekly
3
Labor hours
L4
$
261.54

Development and implementation of an Environmental Management System
John Paul Jones
Surles to provide resource to Jones in development and adaptation of existing ANR EMS to Core. Upon completion, no further development services will be needed.
Response to availability within one business day
14
Health and welfare/retirement support including document requests
210
7
Reorg
HR
VP HR
Judy Hill
Core
HR
Director Benefits
Kristie Kestner
24
monthly
24
Labor hours
L2
$
3,834.89

 
Kristie Kestner
 
Recipient requests help in writing and provider responds within 48 hours with availability to help
15
Payroll/tax support
180
6
Reorg
HR
Director Payroll
Melissa Stanley
Core
HR
Analyst Payroll
Kristy Lawson
16
quarterly
5
Labor hours
L3
$
538.46

 
Kristy Lawson
 
Recipient requests help in writing and provider responds within 48 hours with availability to help
16
Mail forwarding services
180
6
Reorg
HR
Receptionist
Melanie Hutton
Core
HR
Mail expeditor
Ernie Ramsey
5
weekly
22
Labor hours
L5+
$
1,190.77

 
 
 
 
17
Telecommunication Services (phone, data, internet, wireless, etc.) – based on a 50/50 split of estimated billing
90
3
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
 $ 150,000
monthly
$150,000
Non-personnel dollars
 
$
—

 
 
Within 60 days all relative telecommunication services will be transferred to new NewCo accounts. Adding one additional month to allow for catch up in billing.
Provider wil actively work on transitioning accounts, keeping Recipient involved as appropriate.
18
Wireless
30
1
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
 $ 35,000
monthly
$35,000
Non-personnel dollars
 
$
—

 
 
Within 60 days all remaining Wireless accounts will be tranferred to the appropriate NewCo accounts.
Provider wil actively work on transitioning accounts, keeping Recipient involved as appropriate.
19
File Access
180
6
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
0
Monthly
0
Labor hours
L4
$
—

 
 
As a one-time event, IT will make available copies of all NewCo employee Y drive and Exchange data.
For a period of 180 days post-close, if a Reorg employee is hired by NewCo, NewCo can submit a written request to the General Counsel of Reorg asking to receive an electronic copy of the former employee's electronic data (Y drive, Exchange).
20
Email Forwarding
30
1
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
24
Monthly
24
Labor hours
L5+
$
1,329.23

 
 
N/A
For a period of 30 days, Reorg IT will forward email received by NewCo employees to their new conturaenergy.com email address.




Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
21
Software Application Licensing
210
7
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
0
Monthly
0
Non-personnel dollars
L4
$
—

 
 
 
Reorg will provide various temporary software access to NewCo, including but not limited to:
- Read/Report access to Oracle EBS R12
- Microsoft Windows/Office licensing
- OSISoft licensing (prep plant monitoring)
22
Software Support
210
7
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
120
Monthly
120
Labor hours
L5+
$
6,646.15

 
 
 
To the extent necessary, Reorg will provide NewCo software support for any transition software application.
23
Infrastructure Support
180
6
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
80
Monthly
80
Labor hours
L4
$
6,276.92

 
 
New Infrastructure employees will become familiar with the NewCo footprint during the TSA period.
As required, NewCo may request Infrastructure support (generally historical knowledge or expertise) of reorg by emailing support@alphanr.com.
24
Client Services Support
90
3
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
25
Monthly
25
Labor hours
L5+
$
1,384.62

 
 
New Client Services employees will become familiar with the NewCo footprint during the TSA period.
As required, NewCo may request Client Services support (generally historical knowledge and/or expertise) of reorg by emailing support@alphanr.com.
25
Trax knowledge and data access - Knowledge sharing around information in Tracts, contractual data, lease agreements
60
2
Reorg
Land
Manager
Michael Blackburn
Core
Land
SVP Land
Scott Kreutzer
2
Weekly
9
Labor hours
L4
$
674.77

 
 
 
 
26
General land support - Includes support from Reorg Land management to Core Land management
90
3
Reorg
Land
Manager
Michael Blackburn
Core
Land
SVP Land
Scott Kreutzer
2
Weekly
9
Labor hours
L4
$
674.77

 
 
 
 
27
Mapping data - Mapping data as needed
180
6
Reorg
Land
Manager
Michael Blackburn
Core
Land
Coordinator
Spencer Young
1
Weekly
4
Labor hours
L4
$
337.38

 
 
 
 




Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
28
Assist and train the NewCo Legal Department in providing assistance and advice to Operations management and the Environmental Department in achieving Environmental regulatory compliance, particularly in regard to the EPA Consent Decree
180
6
Reorg
Legal
Attorney
Drew McCallister
Core
Legal
Attorney
Suzan Moore
10
monthly
10
Labor hours
L2
$
1,626.92

Core Legal fullty trained to provide support of Core Environmental and Ops
Suzan Moore
Fully utilize this transition service; Work with Environmental and Ops Depts to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help.
29
Assist and train the CoreCo Legal Department to provide Other Paralegal Functions, Especially Litigation Support and Reporting
180
6
Reorg
Legal
Paralegal
Kacee Hodge
Core
Legal
Assist. To Corp. Sec./Legal Assistant
Jessica Clevinger & Lisa Cook
10
monthly
10
Labor hours
L5+
$
553.85

Core Legal fully trained to provide Paralegal/Legal Assistant Support to Core Legal Dept, especially Litigation Support and Reporting; Core Assist. To Corp. Sec./Legal Assistant able to successfully perform functions described in columns S through V
Jessica Clevinger & Lisa Cook
Fully utilize this transition service; Work with Core Legal Dept Attorneys to gain necessary expertise
Recipient requests help via email or phone call. Provider responds within two business days with availability to help. Recipient also spends at least 3 days per month for the first 3 months shadowing Provider
30
DrillBase Software Support
180
6
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
Other
Director Geology
Scott Peterson
10
monthly
10
Labor hours
L5+
$
553.85

hours needed per month
Scott Peterson
new IT on Core side to have full access and understanding
 
31
Pi support to prep plants
365
12
Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
Operations
Director Plants
Van Davis
10
monthly
10
Labor hours
L4
$
784.62

hours needed per month
Van Davis
Find internal or train internal / low cost vendor
 
32
Temporally storing Surface Equipment / Assets
365
12
Reorg
Operations
VP - Maintenance
Jimbo Nagy
Core
Other
VP - Tech Services
Philip Saunders
20
quarterly
7
Labor hours
L5+
$
369.23

Hours per quarter needed to comply
Cullen Medley
Move equipment as needed, or sell back to Non-Core or outside party
 
33
Assessment processing
180
6
ReOrg
Other
Administrative Asst
Donna Moore
Core
Other
Safety Clerk
Nate Clark
5
weekly
22
Labor hours
L5+
$
1,190.77

Zero Delinquent Notices
Dupree
Install Assessment Processing system in Core
Core monitors paid and contested assessments weekly and coordinates with ReOrg to rectify any discrepancies
34
Respirable Dust Rule Expertise
180
6
ReOrg
Other
Director
Vernon Johnson
Core
Other
VP Safety
Allen Dupree
4
weekly
17
Labor hours
L3
$
1,736.54

resp. dust citations/issues
Dupree
Train new subject matter experts
Core monitors resp. dust citations, issues/ etc
35
Office space in Chapmanville (3 offices plus conference room) and Beckley (2 offices plus conference room)
180
6
ReOrg
Other
VP-Tech Services
Joe Pugh
Core
Other
VP - Tech Services
Philip Saunders
 $ 1,000
monthly
$1,000
Non-personnel dollars
 
$
—

 
 
 
 
36
Julian security monitoring support to RRLA
90
3
ReOrg
Operations
Sourcing Manager
Macs Hall
Core
Operations
RRLA Director
Gary Frampton
 $ 500
Monthly
$500
Non-personnel dollars
 
$
—

 
 
 
 




Service
number
1)
Transition
service title
2)
Service
Period
(in days)
Number
of
months
3A)
Provider
- Company
3B)
Provider
- Department
3C)
Provider
- Contact
job title
3D)
Provider
- Contact
name
4A)
Recipient
- Company
4B)
Recipient
- Department
4C)
Recipient
- Contact
job title
4D)
Recipient
- Contact
name
5A)
Service level
- Amount
or quantity
(in hours unless
otherwise noted)
5B)
Service level
- Frequency
(ex. weekly,
monthly,
quarterly)
Monthly
level
provided
Type
"L"
level
 Monthly
value of
service
6)
Measure
of
success/KPIs
7)
Who will assess service performance, e.g., recipient contact person
8)
Planned actions
by recipient to
build internal
capabilities/knowledge,
e.g., train new subject
matter experts (SMEs)
9)
Guidelines for
go-forward working
relationships,
e.g., recipient requests
help in writing and
provider responds
within one business
day with availability
to help
37
Strategic Sourcing Knowledge
120
4
Reorg
Sourcing
SVP-Strategic Sourcing
Macs Hall
Core
Sourcing
Director-Strategic Sourcing
Danny Hinkle
2
daily
44
Labor hours
L3
$
4,442.31

Use first 2 weeks of requests for baseline and measure reductions in assistance requests. Measure variance of number of reduction in requests for improvement
Director-Strategic Sourcing
Documentation of shared information.
Help requests are documented via email with responder reply within 24 hour period of submission.
38
Materials Management Knowledge (Warehousing)
120
4
Reorg
Sourcing
Sr. Director-Sourcing Support
Ed Green
Core
Sourcing
Director-Strategic Sourcing
Danny Hinkle
2
daily
44
Labor hours
L3
$
4,442.31

Use first 2 weeks of requests for baseline and measure reductions in assistance requests. Measure variance of number of reduction in requests for improvement
Director-Strategic Sourcing
Documentation of shared information.
Help requests are documented via email with responder reply within 24 hour period of submission.
39
Contract Administration and Maintenance (Corporate & Regional Agreements)
90
3
Reorg
Sourcing
Manager-Contract Admin
Donald Robinson
Core
Sourcing
Director-Sourcing Admin
Allen Peppler
2
daily
44
Labor hours
L3
$
4,442.31

Use first 2 weeks of requests for baseline and measure reductions in assistance requests. Measure variance of number of reduction in requests for improvement
Director-Strategic Sourcing
Documentation of shared information.
Help requests are documented via email with responder reply within 24 hour period of submission.
40
Bristol office space
60
2
Reorg
HR
VP HR
Judy Hill
Core
Land
SVP Land
Scott Kreutzer
0
Monthly
0
Non-personnel dollars
 
$
—

 
 
 
 
41
Julian office space
90
3
Reorg
Legal
Attorney
Drew McCallister
Core
Operations
VP - Tech Services
Philip Saunders
 $ 200
Monthly
$200
Non-personnel dollars
 
$
—

 
 
 
 




Exhibit 10.31
EXECUTION VERSION

FIRST AMENDMENT TO
TRANSITION SERVICES AGREEMENT

THIS FIRST AMENDMENT TO TRANSITION SERVICES AGREEMENT (this “ First Amendment ”) is entered into on August 26, 2016, but effective as of July 26, 2016, by and among Contura Energy, Inc., a Delaware corporation (“ Contura Energy ”), Old ANR, LLC (formerly Alpha Natural Resources, Inc.) (“ Alpha Natural Resources ”), and ANR, Inc., a Delaware corporation (“ ANR ”) (each a “ Party ” and together, the “ Parties .”)
RECITALS:
WHEREAS, the Parties entered into that certain Transition Services Agreement dated as of July 26, 2016 (the “ TSA ”) (any undefined capitalized term used herein shall have the meaning ascribed to it in the TSA);
WHEREAS, the Parties have agreed to amend the TSA as set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1.
The Parties have mutually agreed that one of the ANR Provided Services as specified in Schedule II to the TSA, specifically Service Number 16 (as referenced in Appendix 1 attached hereto), should be revised, including to delete any provision for compensation with respect to such service. As such, Service Number 16 shall be and hereby is modified as set forth in Appendix 1 attached hereto, which shall replace and supersede the description of Service Number 16 as originally set forth in Schedule II to the TSA. Service Number 16 shall be and hereby is deleted from Schedule III to the TSA and the payment provisions of the TSA, including as provided for under Schedule III to the TSA, shall be and hereby are adjusted accordingly, i.e. , to delete the charges to have been paid by Contura Energy to ANR as consideration for said Service Number 16.
2.
Certain mailing addresses and post office boxes in the name of ANR are expected to be receiving mail that either is addressed to or is properly forwarded to ANR and its Subsidiaries or to Contura Energy and its Subsidiaries, as the case may be, based on the connection of the mail (or the lack thereof) to the Purchased Assets and/or the Assumed Liabilities, including specifically in the case of the following addresses/post-office boxes: P.O. Box 2345, Abingdon, VA 24212; P.O. Box 16429, Bristol, VA 24209; One Alpha Place, Bristol, VA 24202; and 201 Resting Tree Dr., Bristol, VA 24202. In the circumstances, the Parties have agreed, and Contura Energy and its Subsidiaries hereby consent, to having employees of ANR and its Subsidiaries receive and sort all such incoming mail (including as the same may be forwarded to or otherwise received at Kingsport, TN addresses now used by ANR and its Subsidiaries), including to sign for and accept certified and

1


registered mail, and with respect to mail directed to Contura Energy and its Subsidiaries, or to ANR and its Subsidiaries, which pertains to the Purchased Assets and Assumed Liabilities, to forward such mail reasonably promptly to Contura Energy or one of its Subsidiaries, and the Parties agree that mail forwarded within seven (7) Business Days will be deemed to be reasonably prompt. This additional ANR Provided Service is identified in Appendix 2 attached hereto and designated as Service Number 42. Schedule II to the TSA shall be and hereby is amended to add the aforesaid Service Number 42. Both Parties agree to exercise commercially reasonable efforts to provide senders of mail with up-to-date address information such that the mailing addresses and post office boxes may be fully transitioned to Contura Energy and its Subsidiaries and such that incoming mail which should be directed to Contura Energy and its Subsidiaries will, as and to the extent practicable and as soon as possible, cease to be mailed to said ANR mailing addresses and post office boxes.
3.
Certain of the Purchased Assets and Assumed Liabilities have mailing addresses and post office boxes associated with them which are now being used by both ANR and its Subsidiaries and by Contura Energy and its Subsidiaries, including specifically in the case of mine office and regional office mailing addresses and post office boxes associated with the following Mining Complexes: the Alpha Coal West Complex, the Cumberland Complex, the Emerald Complex, the McClure Complex, and the Toms Creek Complex. In the circumstances, the Parties have agreed, and ANR and its Subsidiaries hereby consent, to having employees of Contura Energy and its Subsidiaries receive and sort all such incoming mail, including to sign for and accept certified and registered mail, and with respect to mail directed to ANR and its Subsidiaries which does not pertain to the Purchased Assets and Assumed Liabilities, to forward such mail reasonably promptly to ANR or one of its Subsidiaries, and the Parties agree that mail forwarded within seven (7) Business Days will be deemed to be reasonably prompt. This additional CoreCo Provided Service is identified in Appendix 3 attached hereto and designated as Service Number 43. Schedule II to the TSA shall be and hereby is amended to add the aforesaid Service Number 43. Both Parties agree to exercise commercially reasonable efforts to provide senders of mail with up-to-date address information such that the mailing addresses and post office boxes may be fully transitioned to Contura Energy and its Subsidiaries and such that incoming mail which should be directed to ANR and its Subsidiaries will, as and to the extent practicable and as soon as possible, cease to be mailed to said Contura mailing addresses and post office boxes.
4.
Further, the Parties have mutually agreed to add one additional ANR Provided Service as specified in Schedule II to the TSA, specifically a new Service Number 43, as set forth in Appendix 4 attached hereto. Schedule II to the TSA shall be and hereby is amended to add the aforesaid Service Number 43.

2


5.
Also, the Parties have mutually agreed to add one additional CoreCo Provided Service as specified in Schedule I to the TSA, specifically a new Service Number 44, as set forth in Appendix 5 attached hereto. Schedule I to the TSA shall be and hereby is amended to add the aforesaid Service Number 44.
6.
There shall be no cost or charge for the aforementioned additional services provided for in paragraphs 2, 3, 4, and 5, above, such that the payment provisions of the TSA, including as provided for under Schedule III to the TSA, shall remain unchanged despite the addition of these services.
7.
A revised version of Schedule III to the TSA which incorporates the changes provided for herein is appended hereto as Appendix 6 , and an electronic version of the revised Schedule III is being circulated among the Parties hereto contemporaneously with the execution of this First Amendment.
8.
Miscellaneous .
a.
Except as specifically amended by this First Amendment, the TSA shall remain in full force and effect and is hereby ratified and confirmed.
b.
This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment electronically (either by facsimile transmission or by e-mail delivery of a photocopy of the original) shall be equally as effective as delivery of an original executed counterpart of this First Amendment.
c.
Following execution of this First Amendment, each reference in the TSA to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the TSA shall mean and be a reference to the TSA as amended by this First Amendment.
d.
This First Amendment constitutes the entire agreement and understanding between the Parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter hereof.
e.
All Parties have participated, or had the opportunity to participate, in the drafting of this First Amendment, and no Party shall be deemed to be the drafter hereof. The words of all parts of this First Amendment and of the TSA as hereby amended shall in all cases be construed as a whole, according to their fair meaning, and not strictly for or against any of the Parties, notwithstanding any statutory or common law provisions which would suggest otherwise.

[ remainder of page intentionally left blank ]

3


IN WITNESS WHEREOF, the Parties caused this First Amendment to Transition Services Agreement to be duly executed as of the day and year first above written.

CONTURA ENERGY, INC.
 
 
By:
/s/ Mark M. Manno
 
Name: Mark M. Manno
 
Title: EVP, General Counsel, Secretary & CPO


OLD ANR, LLC (formerly ALPHA NATURAL RESOURCES, INC.)
 
 
By:
/s/ Andrew B. McCallister
 
Name: Andrew B. McCallister
 
Title: Vice President and Secretary
 
 
ANR, INC.  
 
 
By:
/s/ Andrew B. McCallister
 
Name: Andrew B. McCallister
 
Title: SVP, General Counsel and Secretary


4



Appendix 1

Revised ANR Provided Service
Service flow:
Reorg to Core
Service number:
16
Transition service title:
Mail forwarding services
Service period in days:
360
Provider company:
Reorg
Provider department:
Various
Provider contact job title:
Various
Provider contact name:
Various
Receiver company:
Core
Receiver department:
Various
Receiver contact job title:
Various
Receiver contact name:
Various
Monthly level provided:
N/A
Level of provider:
N/A
Monthly value of service:
N/A








Appendix 2

Additional ANR Provided Service
Service flow:
Reorg to Core
Service number:
42
 
 
Transition service title:
Mail forwarding services
Service period in days:
360
 
 
Provider company:
Reorg
Provider department:
Various
Provider contact job title:
Various
Provider contact name:
Various
 
 
Receiver company:
Core
Receiver department:
Various
Receiver contact job title:
Various
Receiver contact name:
Various
 
 
Monthly level provided:
N/A
Level of provider:
N/A
Monthly value of service:
N/A







Appendix 3

Additional CoreCo Provided Service
Service flow:
Core to Reorg
Service number:
43
 
 
Transition service title:
Mail forwarding services
Service period in days:
360
 
 
Provider company:
Core
Provider department:
Various
Provider contact job title:
Various
Provider contact name:
Various
 
 
Receiver company:
Reorg
Receiver department:
Various
Receiver contact job title:
Various
Receiver contact name:
Various
 
 
Monthly level provided:
N/A
Level of provider:
N/A
Monthly value of service:
N/A







Appendix 4
Additional ANR Provided Service
Service flow:
Reorg to Core
Service number:
43
 
 
Transition service title:
Use of Alpha European Sales bank account in Lugano, Switzerland
Service period in days:
180
 
 
Provider company:
Reorg
Provider department:
Treasury
Provider contact job title:
General Counsel
Provider contact name:
Drew McCallister
 
 
Receiver company:
Core
Receiver department:
Treasury / Coal Sales
Receiver contact job title:
General Counsel
Receiver contact name:
Jill Harrison
 
 
Monthly level provided:
N/A
Level of provider:
N/A
Monthly value of service:
N/A







Appendix 5
Additional CoreCo Provided Service
Service flow:
Core to Reorg
Service number:
44
 
 
Transition service title:
Closure of Alpha European Sales bank account and corporate registrations in Lugano, Switzerland
Service period in days:
180
 
 
Provider company:
Core
Provider department:
Coal Sales
Provider contact job title:
General Counsel
Provider contact name:
Jill Harrison
 
 
Receiver company:
Reorg
Receiver department:
Coal Sales
Receiver contact job title:
Vice President
Receiver contact name:
Drew McCallister
 
 
Monthly level provided:
N/A
Level of provider:
N/A
Monthly value of service:
N/A












Appendix 6
Revised Version of Schedule III







Core to Reorg
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Month
 
 
 
 
 
 
 
 
 
 
 
 
Core
1

2

3

4

5

6

7

8

9

10

11

12

Total

Labor hours
1369

1364

478

284

284

124

32

0

0

0

0

0

3,934

Labor dollars
$
122,795

$
122,290

$
43,873

$
23,765

$
23,765

$
11,211

$
3,539

$
—

$
—

$
—

$
—

$
—

$
351,237

Non-personnel dollars
$
—

$
—

$
—

$
—

$
—

$
—

$
—

$
—

$
—

$
—

$
—

$
—

$
—

Total
$
122,795

$
122,290

$
43,873

$
23,765

$
23,765

$
11,211

$
3,539

$
—

$
—

$
—

$
—

$
—

$
351,237

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Reorg to Core
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Month
 
 
 
 
 
 
 
 
 
 
 
 
Reorg
1

2

3

4

5

6

7

8

9

10

11

12

Total

Labor hours
1331

963

648

427

329

329

168

24

24

24

24

24

4,317

Labor dollars
$
110,449

$
82,129

$
55,458

$
34,969

$
25,300

$
25,300

$
12,223

$
1,742

$
1,742

$
1,742

$
1,742

$
1,742

$
354,540

Non-personnel dollars
$
186,700

$
151,700

$
151,700

$
1,000

$
1,000

$
1,000

$
—

$
—

$
—

$
—

$
—

$
—

$
493,100

Total
$
297,149

$
233,829

$
207,158

$
35,969

$
26,300

$
26,300

$
12,223

$
1,742

$
1,742

$
1,742

$
1,742

$
1,742

$
847,640

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Net
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Month
 
 
 
 
 
 
 
 
 
 
 
 
 
1

2

3

4

5

6

7

8

9

10

11

12

Total

Hours
38

401

-170

-144

-46

-206

-136

-24

-24

-24

-24

-24

-383

Labor dollars
$
12,346

$
40,161

$
(11,575
)
$
(11,204
)
$
(1,535
)
$
(14,089
)
$
(8,684
)
$
(1,742
)
$
(1,742
)
$
(1,742
)
$
(1,742
)
$
(1,742
)
$
(3,302
)
Non-personnel dollars
$
(186,700
)
(151700

$
(151,700
)
$
(1,000
)
$
(1,000
)
$
(1,000
)
$
—

$
—

$
—

$
—

$
—

$
—

$
(493,100
)
Total
$
(174,354
)
$
(111,539
)
$
(163,285
)
$
(12,204
)
$
(2,535
)
$
(15,089
)
$
(8,684
)
$
(1,742
)
$
(1,742
)
$
(1,742
)
$
(1,742
)
$
(1,742
)
$
(496,402
)
Negative means Reorg is providing more services (cash is flowing from Core to Reorg)
 
 
 
 
 
 
 
 
Positive means Core is providing more services (cash if flowing from Reorg to Core)
 
 
 
 
 
 
 
 

















Service Detail
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Service number
1) Transition service title
2) Service Period (in days)
Number of months
3A) Provider - Company
3B) Provider - Department
3C) Provider - Contact job title
3D) Provider - Contact name
4A) Recipient - Company
4B) Recipient - Department
4C) Recipient - Contact job title
4D) Recipient - Contact name
5A) Service level - Amount or quantity (in hours unless otherwise noted)
5B) Service level - Frequency (ex. weekly, monthly, quarterly)
Monthly level provided
Type
"L" level
Monthly value of service
1

Monthly close support
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
370
Monthly
370
Labor hours
L4
0
2

Financial reporting
60
2
Core
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Cristina Perez
Reorg
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Megan Meador
27
Monthly
27
Labor hours
L3
0
3

ARO support
60
2
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
Reorg
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Megan Meador
30
Monthly
30
Labor hours
L4
0
4

Corporate Acctg
60
2
Core
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Cristina Perez
Reorg
Accounting (including BP&A)
Dir. Corporate Accounting & Reporting
Megan Meador
20
Monthly
20
Labor hours
L4
0
5

Fresh-start Acctg
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
167
Monthly
167
Labor hours
L3
0
6

Sales/AR Acctg
60
2
Core
Accounting (including BP&A)
Sr. Manager
Randy Philips
Reorg
Accounting (including BP&A)
Dir. Revenue and Inventory
Robert Hutton
20
Monthly
20
Labor hours
L4
0
7

Acquisition Accounting
90
3
Core
Accounting (including BP&A)
SVP Technical Accounting
Alan Jones
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
100
Monthly
100
Labor hours
L3
0
8

Tax Basis/Attribute Refresh
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
20
Weekly
86
Labor hours
L3
0
9

Environmental - EPA CD report
90
3
Core
Environmental
VP-Environmental, Environmental Compliance Managers, and GMs
John Paul Jones
Reorg
Environmental
VP-Environmental
Shelley Surles
23
quarterly
8
Labor hours
L4
0
10

Environmental - KY operations
0
0
Core
Environmental
VP - Environmental
John Paul Jones
Reorg
Environmental
VP-Environmental
Russ Lambert
0
Weekly
0
Labor hours
L4
0
11

HR Employee Files
0
0
Core
HR
Manager HR
Sherry Bowers
Reorg
HR
Manager Benefits
Amy Perrigan
0
quarterly
0
Labor hours
L4
0
12

Bonus Calculation Support/OSEB/Cash Retention/LTIP
90
3
Core
HR
Sr. Dir-HR
Logan Bateman
Reorg
HR
Director HR
Judy Hill and Jeff Gillenwater
20
quarterly
7
Labor hours
L3
0
13

Severance & WARN Payments
30
1
Core
HR
Sr. Dir-HR
Logan Bateman
Reorg
HR
Director HR
Judy Hill and Jeff Gillenwater
15
quarterly
5
Labor hours
L3
0
14

HR Data Processes
60
2
Core
HR
Manager HR
Sherry Bowers
Reorg
HR
HR Rep
Whitney Cole
10
quarterly
3
Labor hours
L4
0
15

Compensation support
60
2
Core
HR
VP HR
Burke Vander Lind
Reorg
HR
VP HR
Judy Hill
10
quarterly
3
Labor hours
L2
0
16

HR/federal contractor compliance support
90
3
Core
HR
Sr. Dir-HR
Logan Bateman
Reorg
HR
Director HR
Chris Matras
15
quarterly
5
Labor hours
L4
0
17

Payroll support
60
2
Core
HR
Sr. Director Payroll and HRIS
Jen Gambill
Reorg
HR
Director Payroll
Melissa Stanley
20
quarterly
7
Labor hours
L4
0
18

General IT Support, Knowledge, and Expertise
210
7
Core
IT
VP IT
Becky Price
Reorg
IT
Sr. Director IT
Jeff Bauserman
5
monthly
5
Labor hours
L2
0
19

Disaster Recovery Support Knowledge, and Expertise
210
7
Core
IT
Director of IT support
Jeff Cochrane
Reorg
IT
Sr. Director IT
Johnathan Hall
12
monthly
12
Labor hours
L3
0




Service Detail
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Service number
1) Transition service title
2) Service Period (in days)
Number of months
3A) Provider - Company
3B) Provider - Department
3C) Provider - Contact job title
3D) Provider - Contact name
4A) Recipient - Company
4B) Recipient - Department
4C) Recipient - Contact job title
4D) Recipient - Contact name
5A) Service level - Amount or quantity (in hours unless otherwise noted)
5B) Service level - Frequency (ex. weekly, monthly, quarterly)
Monthly level provided
Type
"L" level
Monthly value of service
1

Monthly close support
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
370
Monthly
370
Labor hours
L4
0
20

Infrastructure Support
150
5
Core
IT
VP IT
Becky Price
Reorg
IT
Sr. Director IT
Jeff Bauserman
160
Monthly
160
Labor hours
L4
0
21

Client Services Support
60
2
Core
IT
VP IT
Becky Price
Reorg
IT
Sr. Director IT
Jeff Bauserman
50
Monthly
50
Labor hours
L4
0
22

IT Policy Updates
60
2
Core
IT
Manager IT risk and administration
Suzanne Owens
Reorg
IT
Sr. Director IT
Jeff Bauserman
30
Monthly
30
Labor hours
L4
0
23

IT Audit Support
0
0
Core
IT
Manager IT risk and administration
Suzanne Owens
Reorg
IT
Sr. Director IT
Jeff Bauserman
0
Monthly
0
Labor hours
L4
0
24

Delta and Oracle Support
210
7
Core
IT
Director of IT applications
Brad Bateman
Reorg
IT
Director of IT applications
John Talbert
15
Monthly
15
Labor hours
L3
0
25

Trax knowledge and data access - Knowledge sharing around information in Tracts, contractual data, lease agreements
180
6
Core
Land
Manager
Vicki Duffy
Reorg
Land
Manager
Michael Blackburn
5
Weekly
22
Labor hours
L4
0
26

General land support - Includes support from Core Land management to Reorg Land management (including Enterprise)
180
6
Core
Land
SVP Land
Scott Kreutzer
Reorg
Land
Manager
Michael Blackburn
8
Weekly
34
Labor hours
L3
0
27

Mapping support and data
180
6
Core
Land
Coordinator
Spencer Young
Reorg
Land
Manager
Michael Blackburn
3
Weekly
13
Labor hours
L5+
0
28

Training and support for New River Energy
180
6
Core
Land
Manager
Jim Cappucci
Reorg
Land
Manager
Michael Blackburn
3
Weekly
13
Labor hours
L4
0
29

Assist and train the ReorgCo Legal Department in providing assistance and advice to the ReorgCo Land Department/Operations/Sourcing regarding the formation and administration of legal instruments related to land, coal reserves and other real property interests as well as the procurement of goods and services
60
2
Core
Legal
Attorney
Frank Harrington
Reorg
Legal
Attorney
Phil Monroe
10
monthly
10
Labor hours
L2
0
30

Assist and train the ReorgCo Legal Department in providing assistance and advice to the Benefits Committee and the Benefits Department in designing and administering employee benefit plans (including the 3 defined benefit pension plans)
90
3
Core
Legal
Attorney
Suzan Moore
Reorg
Legal
Attorney
Phil Monroe
10
monthly
10
Labor hours
L2
0




Service Detail
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Service number
1) Transition service title
2) Service Period (in days)
Number of months
3A) Provider - Company
3B) Provider - Department
3C) Provider - Contact job title
3D) Provider - Contact name
4A) Recipient - Company
4B) Recipient - Department
4C) Recipient - Contact job title
4D) Recipient - Contact name
5A) Service level - Amount or quantity (in hours unless otherwise noted)
5B) Service level - Frequency (ex. weekly, monthly, quarterly)
Monthly level provided
Type
"L" level
Monthly value of service
1

Monthly close support
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
370
Monthly
370
Labor hours
L4
0
31

Assist and train the ReorgCo Legal Department in performing the Corporate secretarial function
90
3
Core
Legal
Attorney
Mark Manno & Will Phillips
Reorg
Legal
Attorney
Drew McCallister
4
monthly
4
Labor hours
L2
0
32

Assist and train the ReorgCo Legal Department in providing assistance and advice to company departments with regard to internal company policies and procedures
0
0
Core
Legal
Attorney
Will Phillips & Suzan Moore
Reorg
Legal
Attorney
Drew McCallister & Phil Monroe
0
monthly
0
Labor hours
L2
0
33

Assist and train the ReorgCo Legal Department to support the Corporate Secretary Functions and Activities - Board of Directors/Managers/Trustees
90
3
Core
Legal
Assist. To Corp. Sec.
Jessica Clevinger
Reorg
Legal
Paralegal
Kacee Hodge
10
monthly
10
Labor hours
L5+
0
34

Assist and train the CoreCo Legal Department to provide Legal-Assistant/Paralegal Support Functions and Activities, Especially File and Systems Mgmt.
0
0
Core
Legal
Attorney/Legal Assistant
Will Phillips & Lisa Cook
Reorg
Legal
Paralegal
Kacee Hodge
0
monthly
0
Labor hours
L5+
0
35

Assist and train the ReorgCo Legal Department in addressing intellectual property matters.
0
0
Core
Legal
Attorney
Will Phillips
Reorg
Legal
Attorney
Drew McCallister
0
semiannually
0
Labor hours
L2
0
36

Assistance for the transition of litigation matters
90
3
Core
Legal
Attorney
Frank Harrington
Reorg
Legal
Attorney
Phil Monroe
7
Monthly
7
Labor hours
L2
0
37

AMP Support - Oracle Related Expertise
180
6
Core
Other
Director Maintenane
Cullen Medley
Reorg
Other
VP - Maintenance
TBD
10
monthly
10
Labor hours
L4
0
38

Sourcing ERP Support
90
3
Core
Sourcing
Director- Sourcing Admin
Allen Peppler
Reorg
Sourcing
Manager-Contract Admin
Donald Robinson
2
daily
44
Labor hours
L3
0
39

Strategic Sourcing Knowledge
60
2
Core
Sourcing
Director-Strategic Sourcing
Danny Hinkle
Reorg
Sourcing
SVP-Strategic Sourcing
Macs Hall
2
daily
44
Labor hours
L3
0
40

WY Gross Products Return Support
60
2
Core
Accounting (including BP&A)
Regional Controller
Tammy Okray
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
20
Monthly
20
Labor hours
L3
0
41

PAC closure with FEC
0
0
Core
Communications
Manager – Corporate Communications & PAC Admin.
Teresa Anderson
Reorg
Legal
Paralegal
Kacee Hodge
0
Monthly
0
Labor hours
L4
0
42

Finalize, wind down, and delivery of Bristol office building
60
2
Core
Land
SVP Land
Scott Kreutzer
Reorg
N/A
N/A
N/A
0
Monthly
0
Labor hours
L2
0
43

Mail forwarding services
360
12
Core
Other
Various
Various
Reorg
Other
Various
Various
0
Monthly
0
Labor hours
 
0




Service Detail
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Service number
1) Transition service title
2) Service Period (in days)
Number of months
3A) Provider - Company
3B) Provider - Department
3C) Provider - Contact job title
3D) Provider - Contact name
4A) Recipient - Company
4B) Recipient - Department
4C) Recipient - Contact job title
4D) Recipient - Contact name
5A) Service level - Amount or quantity (in hours unless otherwise noted)
5B) Service level - Frequency (ex. weekly, monthly, quarterly)
Monthly level provided
Type
"L" level
Monthly value of service
1

Monthly close support
60
2
Core
Accounting (including BP&A)
Controller
Todd Munsey
Reorg
Accounting (including BP&A)
Controller
Roger Ketron
370
Monthly
370
Labor hours
L4
0
44

Closure of Alpha European Sales bank account and corporate registrations in Lugano, Switzerland
180
6
Core
Sales
General Counsel
Jill Harrison
Reorg
Sales
Vice President
Drew McCallister
0
Monthly
0
Labor hours
 
0




Service Detail
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Service number
1) Transition service title
2) Service Period (in days)
Number of months
3A) Provider - Company
3B) Provider - Department
3C) Provider - Contact job title
3D) Provider - Contact name
4A) Recipient - Company
4B) Recipient - Department
4C) Recipient - Contact job title
4D) Recipient - Contact name
5A) Service level - Amount or quantity (in hours unless otherwise noted)
5B) Service level - Frequency (ex. weekly, monthly, quarterly)
Monthly level provided
Type
"L" level
 Monthly value of service
1

Income Tax Preparation
90

3

Reorg
Accounting (including BP&A)
Sr. Manager
Amy McKinney
Core
Accounting (including BP&A)
Sr. Manager
Anita Fore
80

Monthly
80

Labor hours
L3
—

2

Field AP and accounting support
30

1

Reorg
Accounting (including BP&A)
Manager
Kahla McClure
Core
Accounting (including BP&A)
Controller
Tammy Okray/Dean Swaney
320

Monthly
320

Labor hours
L4
—

3

Sales & Property Tax
90

3

Reorg
Accounting (including BP&A)
Sr. Accountant
Pam Foleno
Core
Accounting (including BP&A)
Controller
Todd Munsey
20

Monthly
20

Labor hours
L4
—

4

Monthly close support
60

2

Reorg
Accounting (including BP&A)
Monthly close support
Roger Ketron
Core
Accounting (including BP&A)
Controller
Todd Munsey
144

Monthly
144

Labor hours
L4
—

5

Freight/Inventory Acctg
60

2

Reorg
Accounting (including BP&A)
Dir. Revenue and Inventory
Robert Hutton
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
20

Monthly
20

Labor hours
L4
—

6

A/P and A/R Support
60

2

Reorg
Accounting (including BP&A)
Dir. General Accounting
Eddie Guy
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
57

Monthly
57

Labor hours
L4
—

7

A/P Support (paying and getting reimbursed for invoices)
30

1

Reorg
Accounting (including BP&A)
Manager
Kahla McClure
Core
Accounting (including BP&A)
Dir. General Accounting
Kristy Edwards
24

Monthly
24

Labor hours
L4
—

8

Tax Basis/Attribute Refresh
60

2

Reorg
Accounting (including BP&A)
Controller
Roger Ketron
Core
Accounting (including BP&A)
Controller
Todd Munsey
20

Weekly
86

Labor hours
L3
—

9

Media Relations / PIER
90

3

Reorg
Communications
Director, Media Relations
Steve Hawkins
Core
Communications
VP, Communications & Government Affairs
Rick Axthelm
10

weekly
43

Labor hours
L3
—

10

Environmental - integration of Delta
120

4

Reorg
Environmental
VP - Environmental and ECM
Shelley Surles and Claire Vaught
Core
Environmental
VP-Environmental
John Paul Jones
2

Weekly
10

Labor hours
L4
—

11

Environmental - control file updates
365

12

Reorg
Environmental
VP-Environmental
Russ Lambert
Core
Environmental
VP-Environmental
John Paul Jones
2.5

Monthly
3

Labor hours
L4
—

12

Environmental - permit transfers
365

12

Reorg
Environmental
VP - Environmental and ECMs
Russ Lambert
Core
Environmental
VP-Environmental
John Paul Jones
5

Monthly
5

Labor hours
L4
—

13

Environmental - management system implementation
180

6

Reorg
Environmental
VP - Environmental
Shelley Surles
Core
Environmental
VP-Environmental
John Paul Jones
1

Weekly
3

Labor hours
L4
—

14

Health and welfare/retirement support including document requests
210

7

Reorg
HR
VP HR
Judy Hill
Core
HR
Director Benefits
Kristie Kestner
24

monthly
24

Labor hours
L2
—

15

Payroll/tax support
180

6

Reorg
HR
Director Payroll
Melissa Stanley
Core
HR
Analyst Payroll
Kristy Lawson
16

quarterly
5

Labor hours
L3
—

16

Mail forwarding services
360

12

Reorg
Other
Various
Various
Core
Other
Various
Various
—

weekly
—

Labor hours
 
—

17

Telecommunication Services (phone, data, internet, wireless, etc.) – based on a 50/50 split of estimated billing
90

3

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
$
150,000

monthly
$
150,000

Non-personnel dollars
 
—





Service Detail
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Service number
1) Transition service title
2) Service Period (in days)
Number of months
3A) Provider - Company
3B) Provider - Department
3C) Provider - Contact job title
3D) Provider - Contact name
4A) Recipient - Company
4B) Recipient - Department
4C) Recipient - Contact job title
4D) Recipient - Contact name
5A) Service level - Amount or quantity (in hours unless otherwise noted)
5B) Service level - Frequency (ex. weekly, monthly, quarterly)
Monthly level provided
Type
"L" level
 Monthly value of service
1

Income Tax Preparation
90

3

Reorg
Accounting (including BP&A)
Sr. Manager
Amy McKinney
Core
Accounting (including BP&A)
Sr. Manager
Anita Fore
80

Monthly
80

Labor hours
L3
—

18

Wireless
30

1

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
$
35,000

monthly
$
35,000

Non-personnel dollars
 
—

19

File Access
180

6

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
—

Monthly
—

Labor hours
L4
—

20

Email Forwarding
30

1

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
24

Monthly
24

Labor hours
L5+
—

21

Software Application Licensing
210

7

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
—

Monthly
—

Non-personnel dollars
L4
—

22

Software Support
210

7

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
120

Monthly
120

Labor hours
L5+
—

23

Infrastructure Support
180

6

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
80

Monthly
80

Labor hours
L4
—

24

Client Services Support
90

3

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
IT
VP IT
Becky Price
25

Monthly
25

Labor hours
L5+
—

25

Trax knowledge and data access - Knowledge sharing around information in Tracts, contractual data, lease agreements
60

2

Reorg
Land
Manager
Michael Blackburn
Core
Land
SVP Land
Scott Kreutzer
2

Weekly
9

Labor hours
L4
—

26

General land support - Includes support from Reorg Land management to Core Land management
90

3

Reorg
Land
Manager
Michael Blackburn
Core
Land
SVP Land
Scott Kreutzer
2

Weekly
9

Labor hours
L4
—

27

Mapping data - Mapping data as needed
180

6

Reorg
Land
Manager
Michael Blackburn
Core
Land
Coordinator
Spencer Young
1

Weekly
4

Labor hours
L4
—

28

Assist and train the NewCo Legal Department in providing assistance and advice to Operations management and the Environmental Department in achieving Environmental regulatory compliance, particularly in regard to the EPA Consent Decree
180

6

Reorg
Legal
Attorney
Drew McCallister
Core
Legal
Attorney
Suzan Moore
10

monthly
10

Labor hours
L2
—

29

Assist and train the CoreCo Legal Department to provide Other Paralegal Functions, Especially Litigation Support and Reporting
180

6

Reorg
Legal
Paralegal
Kacee Hodge
Core
Legal
Assist. To Corp. Sec./Legal Assistant
Jessica Clevinger & Lisa Cook
10

monthly
10

Labor hours
L5+
—

30

DrillBase Software Support
180

6

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
Other
Director Geology
Scott Peterson
10

monthly
10

Labor hours
L5+
—

31

Pi support to prep plants
365

12

Reorg
IT
Sr. Director IT
Jeff Bauserman
Core
Operations
Director Plants
Van Davis
10

monthly
10

Labor hours
L4
—

32

Temporally storing Surface Equipment / Assets
365

12

Reorg
Operations
VP - Maintenance
Jimbo Nagy
Core
Other
VP - Tech Services
Philip Saunders
20

quarterly
7

Labor hours
L5+
—

33

Assessment processing
180

6

ReOrg
Other
Administrative Asst
Donna Moore
Core
Other
Safety Clerk
Nate Clark
5

weekly
22

Labor hours
L5+
—





Service Detail
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Service number
1) Transition service title
2) Service Period (in days)
Number of months
3A) Provider - Company
3B) Provider - Department
3C) Provider - Contact job title
3D) Provider - Contact name
4A) Recipient - Company
4B) Recipient - Department
4C) Recipient - Contact job title
4D) Recipient - Contact name
5A) Service level - Amount or quantity (in hours unless otherwise noted)
5B) Service level - Frequency (ex. weekly, monthly, quarterly)
Monthly level provided
Type
"L" level
 Monthly value of service
1

Income Tax Preparation
90

3

Reorg
Accounting (including BP&A)
Sr. Manager
Amy McKinney
Core
Accounting (including BP&A)
Sr. Manager
Anita Fore
80

Monthly
80

Labor hours
L3
—

34

Respirable Dust Rule Expertise
180

6

ReOrg
Other
Director
Vernon Johnson
Core
Other
VP Safety
Allen Dupree
4

weekly
17

Labor hours
L3
—

35

Office space in Chapmanville (3 offices plus conference room) and Beckley (2 offices plus conference room)
180

6

ReOrg
Other
VP-Tech Services
Joe Pugh
Core
Other
VP - Tech Services
Philip Saunders
$
1,000

monthly
$
1,000

Non-personnel dollars
 
—

36

Julian security monitoring support to RRLA
90

3

ReOrg
Operations
Sourcing Manager
Macs Hall
Core
Operations
RRLA Director
Gary Frampton
$
500

Monthly
$
500

Non-personnel dollars
 
—

37

Strategic Sourcing Knowledge
120

4

Reorg
Sourcing
SVP-Strategic Sourcing
Macs Hall
Core
Sourcing
Director-Strategic Sourcing
Danny Hinkle
2

daily
44

Labor hours
L3
—

38

Materials Management Knowledge (Warehousing)
120

4

Reorg
Sourcing
Sr. Director-Sourcing Support
Ed Green
Core
Sourcing
Director-Strategic Sourcing
Danny Hinkle
2

daily
44

Labor hours
L3
—

39

Contract Administration and Maintenance (Corporate & Regional Agreements)
90

3

Reorg
Sourcing
Manager-Contract Admin
Donald Robinson
Core
Sourcing
Director-Sourcing Admin
Allen Peppler
2

daily
44

Labor hours
L3
—

40

Bristol office space
60

2

Reorg
HR
VP HR
Judy Hill
Core
Land
SVP Land
Scott Kreutzer
—

Monthly
—

Non-personnel dollars
 
—

41

Julian office space
90

3

Reorg
Legal
Attorney
Drew McCallister
Core
Operations
VP - Tech Services
Philip Saunders
$
200

Monthly
$
200

Non-personnel dollars
 
—

42

Mail forwarding services
360

12

Reorg
Other
Various
Various
Core
Other
Various
Various
—

weekly
—

Labor hours
 
—

43

Use of Alpha European Sales bank account in Lugano, Switzerland
180

6

Reorg
Treasury
General Counsel
Drew McCallister
Core
Treasury/Coal Sales
General Counsel
Jill Harrison
—

Monthly
—

Labor hours
 
—




Exhibit 10.32
EXECUTION VERSION

SECOND AMENDMENT TO
TRANSITION SERVICES AGREEMENT
THIS SECOND AMENDMENT TO TRANSITION SERVICES AGREEMENT (this “ Amendment ”) is entered into effective as of October 20, 2016, by and among Contura Energy, Inc., a Delaware corporation (“ Contura Energy ”), Old ANR, LLC (formerly Alpha Natural Resources, Inc.) (“ Alpha Natural Resources ”), and ANR, Inc., a Delaware corporation (“ ANR ”) (each a “ Party ” and together, the “ Parties .”)
RECITALS:
WHEREAS, the Parties entered into that certain Transition Services Agreement dated as of July 26, 2016 (as heretofore amended, the “ TSA ”) (any undefined capitalized term used herein shall have the meaning ascribed to it in the TSA);
WHEREAS, the Parties have agreed to further amend the TSA pursuant to Section 2.08(b) thereof as set forth herein;
WHEREAS, Section 2.08(b) of the TSA provides, in pertinent part, as follows:
Additional Services; Extension of Services Terms . In the event that the Parties identify and agree upon . . . an extension of any particular Service Term, as well as the related fees and other specific terms and conditions applicable thereto, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Schedule, or additions of supplements to the relevant Schedule, in order to describe such . . . extension, and the agreed upon related fees and other specific terms and conditions applicable thereto.
WHEREAS, included in the ANR Provided Services as specified in Schedule II to the TSA, specifically under Service Number 17, were certain telecommunications services to be provided for a period of 90 days; and
WHEREAS, due to certain unforeseen difficulties in migration of the subject telecommunications services into the name(s) of Contura Energy and its Subsidiaries, Contura Energy has requested that Alpha Natural Resources and ANR amend the TSA by agreeing to extend the period of this ANR Provided Service by 30 days
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1.
30-Day Extension of Service Number 17 : The Parties have mutually agreed that the subject ANR Provided Service as specified as Service Number 17 in Schedule II to

1


the TSA should be revised, extended and supplemented as provided for in Appendix 1 attached hereto, which is entitled Service Number 17-A.
2.
Change in Fees : The payment provisions of the TSA, including as provided for under Schedule III to the TSA, shall be and hereby are adjusted accordingly, i.e. , to increase the amount of the Fees to be invoiced for the ANR Provided Services for the 30-day period starting October 24, 2016, to include the $30,000 in additional charges as provided for in the attached Appendix 1 describing Service Number 17-A.
3.
Miscellaneous :
a.
Except as specifically amended by this Amendment, the TSA shall remain in full force and effect and is hereby ratified and confirmed.
b.
This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment electronically (either by facsimile transmission or by e-mail delivery of a photocopy of the original) shall be equally as effective as delivery of an original executed counterpart of this Amendment.
c.
Following execution of this Amendment, each reference in the TSA to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the TSA shall mean and be a reference to the TSA as amended by this Amendment.
d.
This Amendment constitutes the entire agreement and understanding between the Parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter hereof.
e.
All Parties have participated, or had the opportunity to participate, in the drafting of this Amendment, and no Party shall be deemed to be the drafter hereof. The words of all parts of this Amendment and of the TSA as hereby amended shall in all cases be construed as a whole, according to their fair meaning, and not strictly for or against any of the Parties, notwithstanding any statutory or common law provisions which would suggest otherwise.
[ remainder of page intentionally left blank ]

2


IN WITNESS WHEREOF, the Parties caused this Second Amendment to Transition Services Agreement to be duly executed as of the day and year first above written.

CONTURA ENERGY, INC.
 
 
By:
/s/ Mark M. Manno
 
Name: Mark M. Manno
 
Title: EVP, General Counsel, Secretary & CPO


OLD ANR, LLC (formerly ALPHA NATURAL RESOURCES, INC.)
 
 
By:
/s/ Andrew B. McCallister
 
Name: Andrew B. McCallister
 
Title: Vice President and Secretary
 
 
ANR, INC.  
 
 
By:
/s/ Andrew B. McCallister
 
Name: Andrew B. McCallister
 
Title: SVP, General Counsel and Secretary



3



Appendix 1

Revised ANR Provided Service
Service flow:
Reorg to Core
Service number:
17-A (Schedule Supplement)
 
 
Transition service title:
Telecommunication Services (phone, data, internet, wireless, etc.) – based on split of estimated billing
Service period in days:
Additional 30 days starting October 24, 2016
 
 
Provider company:
Reorg
Provider department:
IT
Provider contact job title:
Sr. Director IT
Provider contact name:
Jeff Bauserman
 
 
Receiver company:
Core
Receiver department:
IT
Receiver contact job title:
VP IT
Receiver contact name:
Becky Price
 
 
Monthly level provided:
$30,000 for the 30-day period starting October 24, 2016
Level of provider:
N/A
Monthly value of service:
$30,000 for the 30-day period starting October 24, 2016


Exhibit 10.33

THIRD AMENDMENT TO
TRANSITION SERVICES AGREEMENT

THIS THIRD AMENDMENT TO TRANSITION SERVICES AGREEMENT (this “ Amendment ”) is entered into effective as of February 22, 2017, by and among Contura Energy, Inc., a Delaware corporation (“ Contura Energy ”), Old ANR, LLC (formerly Alpha Natural Resources, Inc.) (“ Alpha Natural Resources ”), and ANR, Inc., a Delaware corporation (“ ANR ”) (each a “ Party ” and together, the “ Parties .”)
RECITALS:
WHEREAS, the Parties entered into that certain Transition Services Agreement dated as of July 26, 2016 (as heretofore amended, the “ TSA ”) (any undefined capitalized term used herein shall have the meaning ascribed to it in the TSA);
WHEREAS, the Parties have agreed to further amend the TSA pursuant to Section 2.08(b) thereof as set forth herein;
WHEREAS, Section 2.08(b) of the TSA provides, in pertinent part, as follows:
Additional Services; Extension of Services Terms . In the event that the Parties identify and agree upon . . . an extension of any particular Service Term, as well as the related fees and other specific terms and conditions applicable thereto, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Schedule, or additions of supplements to the relevant Schedule, in order to describe such . . . extension, and the agreed upon related fees and other specific terms and conditions applicable thereto.
WHEREAS, included in the ANR Provided Services as specified in Schedule II to the TSA, specifically under Service Number 21, were certain software and data access services 1 to be provided for a period of 210 days; and
WHEREAS, due to the continuing need of Contura Energy and its Subsidiaries for this service to utilize certain software and access, inspect and copy certain data, information, books and records that Contura Energy and its Subsidiaries have lawful and legitimate needs to access, inspect and copy for purposes of conducting various accounting, tax, audit and similar business functions and activities, including specifically data, information, books and records Contura Energy and its Subsidiaries are entitled to access under the Asset Purchase Agreement ( see , e.g. , Sections 5.05 and 8.01(a)), Contura Energy has requested that Alpha Natural Resources and
1 See below for additional service details regarding Service Number 21 of the ANR Provided Services, as set forth in Schedule III to the original TSA:

“Reorg will provide various temporary software access to NewCo, including but not limited to: -Read/Report access to Oracle EBS R12, -Microsoft Windows/Office licensing, and -OSISoft licensing (prep plant monitoring).”

1


ANR amend the TSA by agreeing to extend the period of this ANR Provided Service by three hundred and twelve (312) days until December 31, 2017 (the “ Extension Period ”).
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1.
Extension of Service Number 21 : The Parties have mutually agreed that the subject ANR Provided Service as specified as Service Number 21 in Schedule II to the TSA should be revised, extended and supplemented as provided for in Appendix 1 attached hereto, which is entitled Service Number 21-A.
2.
Change in Fees : The payment provisions of the TSA, including as provided for under Schedule III to the TSA, shall be and hereby are adjusted accordingly, i.e. , to increase the amount of the Fees to be invoiced for the ANR Provided Services for the period starting February 22, 2017, and continuing for the duration of the Extension Period, to include Four Thousand Dollars (US $4,000) per month in additional charges as provided for in the attached Appendix 1 describing Service Number 21-A (the charge for February 2017 is prorated to $1,000). The Parties hereby acknowledge that ANR has terminated or will terminate software maintenance and support agreements related to certain “add-on” applications associated with Oracle EBS R12 and that some or all of these add-on applications, including but not limited to GL Wand, Noetix, Kbace, and Livelink, may not be functional during the entirety of the Extension Period.  Should a Contura-related issue arise requiring the add-on application vendor’s assistance, the cost of addressing the issue will be passed along without markup to Contura Energy.  ANR will not enter into any such license fee, new contract or other arrangements for which Contura Energy will bear responsibility for the cost hereunder without the express written approval of Contura Energy. If ANR elects to terminate any of the aforesaid “add-on” applications or take other action that would impact the continued access to and use thereof by Contura Energy and its Subsidiaries during the Extension Period as permitted hereunder, ANR will give Contura Energy no less than thirty (30) days’ prior written notice of the same so that Contura Energy will have sufficient time and opportunity to make alternate arrangements.
3.
Access Limitations : In utilizing this ANR Provided Service and thereby utilizing certain software and accessing, inspecting and copying certain data, information, books and records, Contura Energy and its Subsidiaries shall limit themselves to accessing, inspecting and copying such data, information, books and records they have lawful and legitimate needs to access, inspect and copy for purposes of conducting various accounting, tax, audit and similar lawful and legitimate business functions and activities not inconsistent with the terms and provisions of the Asset Purchase Agreement ( see , e.g. , Sections 5.05 and 8.01(a)). If, in utilizing this ANR Provided Service, Contura Energy and its Subsidiaries willfully access, inspect or

2


copy data, information, books and records for which they have no lawful and legitimate reason to access, inspect or copy (a “Willful Data Infraction”), Alpha Natural Resources and ANR shall give Contura Energy written notice of such Willful Data Infraction and Contura Energy will then have the opportunity within the ensuing 15-day period to demonstrate that the alleged Willful Data Infraction was the result of an inadvertent or innocent mistake or that Contura Energy and its Subsidiaries believed in good faith had a lawful and legitimate reason to access, inspect or copy the subject data, information, books and records, and that such action was not inconsistent with the terms and provisions of the Asset Purchase Agreement, in which case the claim of a Willful Data Infraction will be withdrawn. If there is clear and convincing evidence of a Willful Data Infraction, then Alpha Natural Resources and ANR shall have the right to terminate this ANR Provided Service by giving Contura Energy written notice thereof. Notwithstanding the Parties’ entry into this Amendment or any termination of this ANR Provided Service, the rights and obligations of the parties under the Asset Purchase Agreement with respect to accessing, inspecting or copying data, information, books and records, including but not limited under Sections 5.05 and 8.01(a) thereof, shall be unaffected.
4.
Miscellaneous :
a.
Except as specifically amended by this Amendment, the TSA shall remain in full force and effect and is hereby ratified and confirmed.
b.
This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment electronically (either by facsimile transmission or by e-mail delivery of a photocopy of the original) shall be equally as effective as delivery of an original executed counterpart of this Amendment.
c.
Following execution of this Amendment, each reference in the TSA to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the TSA shall mean and be a reference to the TSA as amended by this Amendment.
d.
This Amendment constitutes the entire agreement and understanding between the Parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter hereof.
e.
All Parties have participated, or had the opportunity to participate, in the drafting of this Amendment, and no Party shall be deemed to be the drafter hereof. The words of all parts of this Amendment and of the TSA as hereby amended shall in all cases be construed as a whole, according to their fair meaning, and not strictly for or against any of the Parties, notwithstanding any statutory or common law provisions which would suggest otherwise.

[ remainder of page intentionally left blank ]

3


IN WITNESS WHEREOF, the Parties caused this Third Amendment to Transition Services Agreement to be duly executed as of the day and year first above written.

CONTURA ENERGY, INC.
 
 
By:
/s/ Mark M. Manno
 
Name: Mark M. Manno
 
Title: EVP, General Counsel, Secretary & CPO
 


OLD ANR, LLC (formerly ALPHA NATURAL RESOURCES, INC.)
 
 
By:
/s/ Andrew B. McCallister
 
Name: Andrew B. McCallister
 
Title: Vice President & Secretary
 
 
ANR, INC.  
 
 
By:
/s/ Andrew B. McCallister
 
Name: Andrew B. McCallister
 
Title: SVP, General Counsel & Secretary
 



4



Appendix 1
Revised ANR Provided Service
Service flow:
Reorg (ANR) to Core (Contura)
Service number:
21-A
Transition service title:
Software Application Licensing
Service period in days:
312 (Feb. 22 – December 31, 2017)
Provider company:
Reorg (ANR)
Provider department:
IT
Provider contact job title:
VP – Information Systems & Technology
Provider contact name:
Jeff Bauserman
Receiver company:
Core (Contura)
Receiver department:
IT
Receiver contact job title:
SVP – Information Systems & Technology
Receiver contact name:
Becky Price
Monthly level provided:
0 hours
Level of provider:
N/A
Monthly value of service:
$4,000.00

Additional details on Service No. 21-A
Reorg (ANR) will provide temporary software and data access to CoreCo (Contura), including the following:
1.
Oracle EBS R12 Access for twenty concurrent users. The user IDs shall be defined as Contura01 through Contura20. Access shall be set up as follows:
A.
Nineteen (19) user IDs shall be granted the following responsibilities:
i.
ANR INV Supply Chain Inquiry
ii.
ANR AP Corporate Inquiry
iii.
ANR GL Inquiry
iv.
ANR AR Inquiry
v.
ANR FA Inquiry
vi.
ANR INV Cost Management – SLA Inquiry
vii.
ANR PA Project Inquiry
B.
One (1) user ID shall be granted the following responsibilities:
i.
ANR PAY Payroll Reconciliation View Only
2.
GL Wand Access and associated Licenses (19 concurrent users)
3.
Noetix Access and associated Licenses (20 concurrent users)
4.
K-Bace Access and associated Licenses (1 concurrent user)

Appendix 1 – Page 1


5.
LiveLink Access and associated Licenses (19 concurrent users) such that the Contura users can access invoice images.
6.
Necessary Active Directory access, licenses, and privileges to access and use the applications listed above.

Any assistance to be provided by Reorg (ANR) will be limited to system administration and client services support. Functional support for the use of the applications is not included or considered as a part of this Amendment.

Appendix 1 – Page 2
Exhibit 10.34
EXECUTED VERSION

FOURTH AMENDMENT TO
TRANSITION SERVICES AGREEMENT
THIS FOURTH AMENDMENT TO TRANSITION SERVICES AGREEMENT (this “ Amendment ” or “ Fourth Amendment ”) is entered into on December 19, 2017, to be effective as of January 1, 2018, by and among Contura Energy, Inc., a Delaware corporation (“ Contura Energy ”), Old ANR, LLC (formerly Alpha Natural Resources, Inc.) (“ Alpha Natural Resources ”), and ANR, Inc., a Delaware corporation (“ ANR ”) (each a “ Party ” and together, the “ Parties .”)
RECITALS:
WHEREAS, the Parties entered into that certain Transition Services Agreement dated as of July 26, 2016 (as heretofore amended, the “ TSA ”) (any undefined capitalized term used herein shall have the meaning ascribed to it in the TSA);
WHEREAS, the Parties have agreed to further amend the TSA pursuant to Section 2.08(b) thereof as set forth herein;
WHEREAS, Section 2.08(b) of the TSA provides, in pertinent part, as follows:
Additional Services; Extension of Services Terms . In the event that the Parties identify and agree upon . . . an extension of any particular Service Term, as well as the related fees and other specific terms and conditions applicable thereto, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Schedule, or additions of supplements to the relevant Schedule, in order to describe such . . . extension, and the agreed upon related fees and other specific terms and conditions applicable thereto.
WHEREAS, included in the ANR Provided Services as specified in Schedule II to the TSA, specifically under Service Number 21, were certain software and data access services 1 to be provided for an initial period of 210 days;
WHEREAS, due to the continuing need of Contura Energy and its Subsidiaries for this service to utilize certain software and access, inspect and copy certain data, information, books and records that Contura Energy and its Subsidiaries have lawful and legitimate needs to access, inspect and copy for purposes of conducting various accounting, tax, audit and similar business functions and activities, including specifically data, information, books and records Contura Energy and its Subsidiaries are entitled to access under the Asset Purchase Agreement ( see , e.g. ,
1 See below for additional service details regarding Service Number 21 of the ANR Provided Services, as set forth in Schedule III to the original TSA:
“Reorg will provide various temporary software access to NewCo, including but not limited to: -Read/Report access to Oracle EBS R12, -Microsoft Windows/Office licensing, and -OSISoft licensing (prep plant monitoring).”

1


Sections 5.05 and 8.01(a)), Contura Energy requested, and Alpha Natural Resources and ANR agreed, to amend the TSA by agreeing to extend the period of this ANR Provided Service by three hundred and twelve (312) days until December 31, 2017, which was memorialized in that certain Third Amendment to Transition Services Agreement entered into effective as of February 22, 2017, by and among the Parties (the “ Third Amendment ”).
WHEREAS, the aforesaid need is continuing such that Contura Energy has requested that Alpha Natural Resources and ANR agree to amend the TSA by agreeing to extend the “Extension Period” (as defined in the Third Amendment) for an additional period of four (4) calendar years from January l, 2018 through December 31, 2021, inclusive, such that the period of this ANR Provided Service shall continue until December 31, 2021 (the “ Second Extension Period ”).
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1.
Extension of Service Number 21 : The Parties have mutually agreed that the subject ANR Provided Service as specified as Service Number 21 in Schedule II to the TSA should be revised, extended and supplemented as provided for in Appendix 1 attached hereto, which is entitled Service Number 21-A (Second Extension). The monthly fee shall be four thousand dollars ($4000.00) for the first 24 months of this Second Extension (i.e., January 1, 2018 through December 31, 2019). No later than September 30, 2019, for the 2020 service year, or September 30, 2020, for the 2021 service year, ANR shall notify Contura of its desire to reopen the monthly fee due to a material change in ANR’s costs to maintain Service Number 21-A. If ANR elects to exercise this right, it shall provide sufficient detail to Contura to demonstrate the increased costs are material compared to the costs projected at the time of this Fourth Amendment and such increased costs shall be split evenly between ANR and Contura; provided that, if Contura does not agree that the increased costs are material, then Contura may exercise the dispute resolution provision of the TSA or terminate Service Number 21-A as of December 31, 2019 or December 31, 2020, as the case may be, with no penalty.
2.
Adoption of Other Terms : All other provisions of the Third Amendment, including specifically numbered paragraphs 2 and 3, shall be and hereby are incorporated by reference into this Amendment as if set forth in full herein, it being the intent and agreement of the Parties to extend the Extension Period (as defined in the Third Amendment) for the 4-year duration of the Second Extension Period (as defined above).
3.
Miscellaneous :
a.
Except as specifically amended by this Amendment, the TSA shall remain in full force and effect and is hereby ratified and confirmed.

2


b.
This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment electronically (either by facsimile transmission or by e-mail delivery of a photocopy of the original) shall be equally as effective as delivery of an original executed counterpart of this Amendment.
c.
Following execution of this Amendment, each reference in the TSA to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the TSA shall mean and be a reference to the TSA as amended by this Amendment.
d.
This Amendment constitutes the entire agreement and understanding between the Parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter hereof.
e.
All Parties have participated, or had the opportunity to participate, in the drafting of this Amendment, and no Party shall be deemed to be the drafter hereof. The words of all parts of this Amendment and of the TSA as hereby amended shall in all cases be construed as a whole, according to their fair meaning, and not strictly for or against any of the Parties, notwithstanding any statutory or common law provisions which would suggest otherwise.
[ remainder of page intentionally left blank ]

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IN WITNESS WHEREOF, the Parties caused this Fourth Amendment to Transition Services Agreement to be duly executed as of the day and year first above written.
CONTURA ENERGY, INC.
 
 
By:
/s/ Mark M. Manno
 
Name:  Mark M. Manno
 
Title:    EVP, General Counsel,
Secretary & CPO
 
 
OLD ANR, LLC (formerly ALPHA NATURAL RESOURCES, INC.)
 
 
By:
/s/ Andrew B. McCallister
 
Name:  Andrew B. McCallister
 
Title:    Secretary, SVP & General
Counsel
 
 
ANR, INC.
 
 
By:
/s/ Andrew B. McCallister
 
Name:  Andrew B. McCallister
 
Title:    Secretary & General Counsel

4


Appendix 1
Revised ANR Provided Service
Service flow:
Reorg (ANR) to Core (Contura)
Service number:
21-A (Second Extension)
Transition service title:
Software Application Licensing
Service period in days:
1461 (January 1, 2018 – December 31, 2021)
Provider company:
Reord (ANR)
Provider department:
IT
Provider contact job title:
VP – Information Systems & Technology
Provider contact name:
Jeff Bauserman
Receiver company:
Core (Contura)
Receiver department:
IT
Receiver contact job title:
SVP – Information Systems & Technology
Receiver contact name:
Becky Price
Monthly level provided:
0 hours
Level of provider:
N/A
Monthly value of service:
$4,000.00 except as modified pursuant to Paragraph 1 of Amendment No. 4.
Additional details on Service No. 21-A (Second Extension)
A. Reorg (ANR) will provide temporary software and data access to CoreCo (Contura), including the following:
1.
Oracle EBS R12 Access for twenty concurrent users. The user IDs shall be defined as Contura01 through Contura20. Access shall be set up as follows:
A.
Nineteen (19) user IDs shall be granted the following responsibilities:
i.
ANR INV Supply Chain Inquiry
ii.
ANR AP Corporate Inquiry
iii.
ANR GL Inquiry
iv.
ANR AR Inquiry
v.
ANR FA Inquiry
vi.
ANR INV Cost Management – SLA Inquiry
vii.
ANR PA Project Inquiry
B.
One (1) user ID shall be granted the following responsibilities:
i.
ANR PAY Payroll Reconciliation View Only

Appendix 1 – Page 1


2.
GL Wand Access and associated Licenses (19 concurrent users)
3.
Noetix Access and associated Licenses (20 concurrent users)
4.
K-Bace Access and associated Licenses (1 concurrent user)
5.
LiveLink Access and associated Licenses (19 concurrent users) such that the Contura users can access invoice images.
6.
Necessary Active Directory access, licenses, and privileges to access and use the applications listed above.
Any assistance to be provided by Reorg (ANR) will be limited to system administration and client services support. Functional support for the use of the applications is not included or considered as a part of this Amendment.

Appendix 1 – Page 2

Exhibit 10.35

EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”), dated this 26 th day of July, 2016 (the “Effective Date”), is entered into by and between Contura Energy, Inc., on behalf of itself and its parent entities, subsidiaries and affiliates as may employ Employee from time to time (collectively, “Employer”), and Kevin S. Crutchfield (the “Employee”). Defined terms used herein are set forth in Section 7.13.
WITNESSETH:
WHEREAS, Employee was previously employed by Alpha Natural Resources Services, LLC pursuant to a certain Employment Agreement dated as of March 22, 2006, as amended and restated on February 26, 2007, November 17, 2008 and July 31, 2009, between Employee and Alpha Natural Resources Services, LLC (the “Third Amended and Restated Agreement”), Employee agrees that the Third Amended and Restated Agreement shall terminate immediately prior to the Effective Date and that Employee will be employed by Employer on and after the Effective Date pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained herein, Employer and Employee agree as follows:
Article 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be employed by Employer, beginning as of the Effective Date and continuing through December 31, 2017 (the “Term”), subject to the terms and conditions of this Agreement. The Term shall be automatically extended for successive 12-month periods unless either party provides written notice to the other at least 90 days prior to the end of the then current Term of such party’s election not to extend the Term.
1.2 Beginning as of the Effective Date, Employee shall continue to be employed by Employer as Chief Executive Officer (the “CEO”) of Employer, and shall be nominated for election to the Board of Directors (the “Board of Directors”) of Employer. Employee shall report to the Board of Directors of Employer. Employee shall serve in the assigned positions or in such other executive capacities as may be agreed to, from time to time, between Employee and the Employer, the Board of Directors, and/or the Employer Entities (as defined below). Employee agrees to perform diligently and to the best of Employee’s abilities, and in a trustworthy, businesslike and efficient manner, the duties and services pertaining to such positions as reasonably determined by the Employer and the Board of Directors, as well as such additional or different duties and services appropriate to such positions which Employee from time to time may be reasonably directed to perform by the Board of Directors and/or Employer.
1.3 Employee shall at all times comply in all material respects with, and be subject to, such policies and procedures as Employer and/or the Employer Entities may establish from time to time, including, without limitation, Employer’s Code of Business Ethics (the “Code of Ethics”).

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1.4 Except as expressly approved by the Board of Directors, Employee shall, during the period of Employee’s employment by Employer, devote Employee’s full business time, energy, and best efforts to the business and affairs of Employer and the Employer Entities. Employee may not engage, directly or indirectly, in any other business, investment, or activity that interferes with Employee’s performance of Employee’s duties hereunder, is contrary to the interest of Employer or any of its parent entities, affiliated subsidiaries and divisions (each an “Employer Entity,” or collectively, the “Employer Entities”) or requires any significant portion of Employee’s business time. The foregoing notwithstanding, the parties recognize and agree that Employee may engage in passive personal investments and other business activities which do not conflict with the business and affairs of the Employer Entities or interfere with Employee’s performance of his duties hereunder. Employee may not serve on the board of directors of any entity (other than an Employer Entity, related industry trade association, public institution, government appointed public or quasi-public body, or not-for-profit charitable organization so long as such activities do not materially interfere with Employee’s performance of his duties hereunder) during the Term without prior approval, which will not be unreasonably withheld, by the Board of Directors. Employee shall be permitted to retain any compensation received for approved service on any unaffiliated corporation’s board of directors.
1.5 Employee acknowledges and agrees that Employee owes a fiduciary duty of loyalty, fidelity, and allegiance to act at all times in the best interests of the Employer and the other Employer Entities and to do no material act which would, directly or indirectly, injure any such entity’s business, interests, or reputation. It is agreed that any direct or indirect interest in, connection with, or benefit from any outside activities, particularly commercial activities, which interest would materially and adversely affect Employer, or any Employer Entity, involves a possible conflict of interest. In keeping with Employee’s fiduciary duties to Employer and the Employer Entities, Employee agrees that Employee shall not knowingly become involved in a conflict of interest with Employer or any Employer Entity, or upon discovery thereof, allow such a conflict to continue.
1.6 Nothing contained in this Agreement shall be construed to preclude the transfer of Employee’s employment to another Employer Entity (“Subsequent Employer”) as of, or at any time after, the Effective Date and no such transfer shall be deemed to be a termination of employment for purposes of Article 3 hereof; provided, however, that, effective with such transfer, all of Employer’s obligations hereunder shall be assumed by and be binding upon, and all of Employer’s rights hereunder shall be assigned to, such Subsequent Employer and the defined term “Employer” as used herein and any other terms referring and/or relating to Employer shall thereafter be deemed amended to mean and refer to such Subsequent Employer. Except as otherwise provided above, all of the terms and conditions of this Agreement, including without limitation, Employee’s rights, compensation, benefits and obligations, shall remain in all material respects and taken as a whole, no less favorable to Employee following such transfer of employment.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee’s base salary during the Term shall be one million forty‑five thousand dollars ($1,045,000) per annum which shall be paid in accordance with Employer’s standard payroll practice. Employee’s base salary shall be reviewed and approved annually by

2


the Compensation Committee of the Board of Directors (the “Compensation Committee”) and then recommended by the Compensation Committee to the Board of Directors for its approval and may be increased, in the Board of Directors’ sole discretion, from time to time. Such increased base salary shall become the minimum base salary under this Agreement and may not be decreased thereafter without the written consent of Employee unless otherwise permitted by this Agreement.
2.2 For each calendar year during the Term, Employee shall be paid an annual cash performance bonus (an “Annual Bonus”), to the extent earned based on performance against objective, reasonably attainable performance criteria. The performance criteria for any particular calendar year shall be determined in good faith by the Board (or a sub-committee thereof), after consultation with Employee, no later than sixty (60) days after the commencement of the relevant bonus period. Employee’s annual bonus opportunity for a calendar year shall equal 125% of Employee’s Base Salary for that year if target levels of performance for that year are achieved (the “Target Bonus”), and shall be 62.5% of Employee’s Base Salary if 90% of the applicable threshold performance criteria are achieved and 250% of Employee’s Base Salary if 110% of the applicable maximum performance criteria are achieved (with Employee’s Annual Bonus being determined using straight line interpolation for performance between any two such amounts). Employee’s Annual Bonus for a bonus period shall be determined by the Board after the end of the applicable bonus period and shall be paid to Employee when annual bonuses for that year are paid to other senior executives of Employer generally, but in no event later than March 15 of the year following the year to which such Annual Bonus relates. In carrying out its functions under this Section 2.2, the Board shall at all times act reasonably and in good faith.
2.3 During the Term, Employee shall participate in Employer’s long-term management incentive plans, including its equity incentive plans, on the terms established from time to time by the Compensation Committee.
2.4 Promptly after the Effective Date, Employer shall grant Employee, under the Company’s Management Incentive Plan (the “Emergence Awards”), (i) 150,150 fully-vested shares of the Company’s common stock, par value $0.01 (“Shares”), and (ii) options covering 75,075 Shares and 75,075 Shares, each in accordance with the Emergence Award Grant Agreements attached hereto as Annex B and Annex C , respectively (the “Grant Agreements”).
2.5 Employee shall be entitled to at least four (4) weeks paid vacation in each calendar year, or such greater amount of vacation as may be determined in accordance with Employer’s vacation policy as in effect from time to time. Employee shall also be entitled to all paid holidays given by Employer to its executives.
2.6 During the Term, Employer shall pay or reimburse Employee for all actual, reasonable and customary expenses incurred by Employee in the course of his employment; provided that such expenses are incurred and accounted for in accordance with Employer’s applicable policies and procedures. In addition, Employer shall reimburse Employee, in an amount not to exceed $50,000, for reasonable, documented legal fees and expenses (including, without limitation, attorneys’ fees) incurred by Employee in the preparation, negotiation and execution of this Agreement and the Grant Agreements.

3


2.7 While employed by Employer, Employee shall be allowed to participate, on the same basis generally as other employees of Employer, in all general employee benefit plans and programs, including improvements or modifications of the same, which on the Effective Date or thereafter are made available by Employer and/or the Employer Entities to all or substantially all of Employer’s similarly situated employees. Such benefits, plans, and programs may include, without limitation, medical, health, and dental care, life insurance, disability protection, qualified and non-qualified retirement plans, retiree medical plans and stock option and stock grant programs, if any. Except as specifically provided in this Agreement, nothing in this Agreement is to be construed or interpreted to increase or alter in any way the rights, participation, coverage, or benefits under such benefit plans or programs than provided to similarly situated employees pursuant to the terms and conditions of such benefit plans and programs.
2.8 Notwithstanding anything to the contrary in this Agreement, it is specifically understood and agreed that Employer and the Employer Entities shall not be obligated to institute, maintain, or refrain from changing, amending, or discontinuing any incentive, employee benefit or stock or stock option program or plan, so long as such actions are similarly applicable to covered employees generally.
2.9 Employer shall withhold from any compensation, benefits, or amounts payable under this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.
ARTICLE 3: TERMINATION OF EMPLOYMENT AND EFFECTS OF SUCH TERMINATION
3.1 Employee’s employment with Employer shall be terminated prior to the end of the Term: (i) upon the death of Employee, (ii) upon Employee’s Retirement (as defined below), (iii) upon Employee’s Permanent Disability (as defined below), (iv) at any time by Employer upon written notice to Employee, or (v) by Employee upon 90 days prior written notice to Employer. Employee agrees and confirms that any termination of Employee’s employment pursuant to this ‎Article 3 shall constitute, with no further action required, Employee’s resignation from any position that Employee holds on the Board and as an employee of, or member of the board of directors of, any of Employer’s subsidiaries or affiliates, each such resignation to be effective on the date of the termination of the Employee’s employment hereunder.
3.2 If Employee’s employment is terminated by reason of any of the following circumstances ‎(i), ‎(ii), ‎(iii) or ‎(iv), Employee shall be entitled to receive only the benefits set forth in Section 3.3 below:
(i) Termination due to Employee’s Retirement . “Retirement” shall mean Employee’s retirement at or after normal retirement age (either voluntarily or pursuant to Employer’s retirement policy).
(ii) Termination by Employer for Employer Cause . Termination of Employee’s employment for “Employer Cause” shall mean termination of Employee’s

4


employment by Employer for any of the following: (a) Employee’s gross negligence or willful misconduct in the performance of the duties and services required of Employee pursuant to this Agreement, (b) Employee’s final conviction of, or plea of guilty or nolo contendere to, a felony or Employee engaging in fraudulent or criminal activity relating to the scope of Employee’s employment (whether or not prosecuted), (c) a material violation of Employer’s Code of Ethics, (d) Employee’s material breach of any material provision of this Agreement, provided that Employee has received written notice from the Employer and been afforded a reasonable opportunity (not to exceed 30 days) to cure such breach, (e) any continuing or repeated failure to perform the duties as requested in writing by the Employee’s supervisor(s) or the Board of Directors after Employee has been afforded a reasonable opportunity (not to exceed 30 days) to cure such breach, (f) the conviction of a felony or crime involving moral turpitude, or (g) conduct which brings Employer and/or the Employer Entities into public disgrace or disrepute in any material respect. Determination as to whether or not Employer Cause exists for termination of Employee’s employment will be made by the Board of Directors.
(iii) Termination by Employee by Resignation (Other Than for Good Reason) . Employee’s resignation, other than for Good Reason (as defined below), shall mean termination of Employee’s employment by Employee’s resignation of employment with Employer and any Employer Entity, but not including any termination of employment by Employee for Good Reason as described in Section ‎3.4(i) or a Termination In Connection With A Change in Control (as defined below) by Employee described in Section ‎3.7.
(iv) Election Not to Renew Term by Employee . Employee elects not to renew the Term pursuant to Section ‎1.1 of this Agreement.
3.3 If Employee’s employment is terminated by reason of Section ‎3.2 ‎(i), ‎(ii), ‎(iii), or ‎(iv), Employee shall be entitled to each of the following:
(i) Except as provided in Section ‎3.3(iii) below, Employee shall be entitled to: (a) any base salary earned, accrued or owing to Employee through the effective date of termination of employment, (b) reimbursement for all reasonable and customary expenses incurred by Employee in performing services for the Employer and/or Employer Entities prior to the effective date of termination of employment, (c) payment of vested amounts under the Employer’s Deferred Compensation Plan (as amended, the “Deferred Compensation Plan”), if any, (d) payment equal to the amount of any accrued, but unused, vacation time, and (e) any individual bonuses or individual incentive compensation not yet paid, but due and payable under Employer’s and/or Employer Entities’ plans for years prior to the year of Employee’s termination of employment; provided that, Employee shall not be entitled to: (1) any bonus or incentive compensation for the year in which he terminates employment unless specifically granted by the Compensation Committee or Board of Directors, or (2) any other payments or benefits by or on behalf of Employer and/or the Employer Entities except for those which may be payable pursuant to the terms of Employer’s and/or Employer Entities’ employee benefit plans, stock, option, or other equity plans or the applicable agreements underlying such plans. All payments shall be paid no later than 60 days after the effective date of termination of employment, provided, however, that all payments under clause (c) shall be paid in accordance with such plan’s terms and all payments under clause (e) shall be paid no later than the time that

5


such amounts are paid to similarly situated employees in accordance with the applicable plan terms.
(ii) Except for ‎(i) above, it is specifically understood that all future compensation to which Employee is entitled and all future benefits for which Employee is eligible, shall cease and terminate as of the effective date of termination of employment except, if applicable, retiree medical benefits under Employer’s Retiree Medical Benefit Plan (including any successors thereto, the “Retiree Medical Benefit Plan”).
(iii) If Employee terminates employment with Employer pursuant to Section ‎3.2(iii) or Section 3.2(iv), the non-competition and non-solicitation provisions of Article 5 herein shall only apply if the Employer, at its sole option, invokes such provisions by written notice to Employee and pays the Employee the following: (a) two and one-half (2 1/2) times Employee’s base salary in effect as of the effective date of termination of employment plus (b) two and one-half (2 1/2) times Employee’s Target Bonus for the year in which the effective date of termination of employment occurs, which shall be paid to Employee in accordance with the following payment schedule: (1) one-half of such compensation shall be paid to Employee on the six (6) month anniversary of the effective date of termination of employment (“Six Month Payment Date”) and (2) the remaining balance of such compensation shall be paid to Employee in equal installments in accordance with Employer’s customary payroll practices commencing the first pay period after the Six Month Payment Date and ending on the earlier to occur of (A) the 12-month anniversary of the effective date of such termination of employment or (B) the date Employee violates any of the covenants set forth in ‎Article 4 and ‎Article 5 hereof.
3.4 If Employee’s employment is terminated by reason of (i), (ii), (iii), or (iv) below, and, in the case of (i) and (ii), other than a Termination In Connection With A Change in Control, as otherwise provided in Section 3.7, Employee shall be entitled to receive the benefits set forth in Section ‎3.5 or Section ‎3.6, as applicable.
(i) Termination by Employee for Good Reason (Other Than A Termination In Connection With A Change in Control) . “Good Reason” shall mean a termination of Employee’s employment by Employee with the Employer and any Employer Entity as a result of the occurrence, without Employee’s written consent, of one of the following events: (a) a material reduction in Employee’s (1) annual base salary or (2) Target Bonus opportunity (unless such reduction in (1) and/or (2) relates to an across-the-board reduction similarly affecting Employee and all or substantially all other executives of Employer and the Employee Entities); (b) a failure to provide Employee with the opportunity to materially participate in any material equity-based plans of Employer and/or the Employer Entities on a similar basis to those of other similarly situated executives of Employer and/or the Employer Entities; (c) Employer makes or causes to be made a material adverse change in Employee’s position, authority, duties or responsibilities which results in a significant diminution in Employee’s position, authority, duties or responsibilities, including, without limitation, Employee being required to report to any person other than the Board of Directors, except in connection with a termination of Employee’s employment with Employer for Permanent Disability, Employer Cause, death, or temporarily as a result of Employee’s incapacity or other absence for an extended period; (d) a relocation of Employer’s principal place of business, or of Employee’s own office as assigned to Employee by Employer, to a location that increases

6


Employee’s normal work commute by more than 50 miles; or (e) Employer or the Board of Directors engages in any illegal activity or material violation of governmental laws, rules or regulations in connection with the Employer and/or the Employer Entities; provided, that such illegal activity or material violation has a material adverse effect on Employer and the Employer Entities, taken as a whole, thereby causing a material adverse change in the conditions under which Employee services are to be performed. In order for Employee to terminate for Good Reason, (a) Employer must be notified by Employee in writing within 90 days of the event constituting Good Reason, (b) the event must remain uncorrected by Employer for 30 days following such notice (the “Notice Period”), and (c) such termination must occur within 60 days after the expiration of the Notice Period.
(ii) Employer Termination Without Employer Cause (Other Than A Termination In Connection With A Change in Control) . Termination of Employee’s employment by Employer for any reason other than for Employer Cause including, without limitation, termination due to Employer’s election not to renew the Term pursuant to Section ‎1.1, but not including a Termination In Connection With A Change in Control by Employer described in Section ‎3.7.
(iii) Death . Termination due to the death of Employee.
(iv) Termination due to Employee’s Permanent Disability . “Permanent Disability” shall mean Employee’s physical or mental incapacity to perform his usual duties with such condition likely to remain continuously and permanently as determined by Employer.
3.5 Subject to the provisions of Section ‎3.7, Section ‎3.8, and Section ‎3.9, if Employee’s employment is terminated by Employee under Section ‎3.4(i) or by Employer under Section ‎3.4(ii), Employee shall be entitled to each of the following:
(i) Employer shall pay to Employee an amount equal to the sum of: (a) two (2) times Employee’s base salary in effect as of the effective date of termination of employment plus (b) two (2) times Employee’s Target Bonus for the year in which the effective date of termination of employment occurs. Except as otherwise provided herein, such compensation shall be paid to Employee in accordance with the following payment schedule: (a) an amount equal to the maximum amount eligible to be paid under Treas. Reg. §1.409A-1(b)(9)(iii) shall be paid to Employee no later than 60 days after the effective date of termination of employment; and (b) the remaining balance of such compensation shall be paid to Employee in equal installments in accordance with Employer’s customary payroll practices commencing the first pay period after the Six Month Payment Date and ending on the earlier to occur of (1) the 12-month anniversary of the effective date of such termination of employment, or (2) the date Employee violates any of the covenants set forth in ‎Article 4 or ‎Article 5 hereof.
(ii) Reserved.
(iii) Employee shall be entitled to: (a) any base salary earned, accrued or owing to him under this Agreement through the effective date of termination of employment, (b) any individual bonuses or individual incentive compensation not yet paid, but due and payable under Employer’s and/or Employer Entities’ plans for years prior to the year of Employee’s

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termination of employment, (c) reimbursement for all reasonable and customary expenses incurred by Employee in performing services for the Employer and/or the Employer Entities prior to the effective date of termination of employment, (d) payment of vested amounts under the Deferred Compensation Plan, if any, and (e) payment equal to the amount of accrued, but unused, vacation time. All payments shall be paid no later than 60 days after the effective date of termination of employment; provided, however, that all payments under clause (b) of this Section ‎3.5(iii) shall be paid no later than the time that such amounts are paid to similarly situated employees in accordance with the applicable plan terms and all payments under clause (d) of this Section ‎3.5(iii) shall be paid in accordance with such plan’s terms.
(iv) To the extent permitted by applicable law and the insurance and benefits policies to which Employee is entitled to participate (collectively, “Benefit Plans”), Employer shall maintain Employee’s paid coverage for health and dental insurance (through the payment of Employee’s COBRA premiums) and life insurance benefits (through the reimbursement of Employee’s premiums upon conversion to individual policy) for the earliest to occur of: (a) Employee obtaining the age of 65, (b) the date Employee is provided by another employer benefits substantially comparable to the benefits provided by the above-referenced Benefit Plans (which Employee must provide prompt notice with respect thereto to the Employer), or (c) the expiration of the COBRA Continuation Period (as defined below). During the applicable period of coverage described in the foregoing sentence, Employee shall be entitled to benefits, on substantially the same basis as would have otherwise been provided had Employee not been terminated and Employer will have no obligation to pay any benefits to, or premiums on behalf of, Employee after such period ends. To the extent that such benefits are available under the above-referenced Benefit Plans and Employee had such coverage immediately prior to termination of employment, such continuation of benefits for Employee shall also cover Employee’s dependents for so long as Employee is receiving benefits under this paragraph ‎(iv). The COBRA Continuation Period for medical and dental insurance under this paragraph (iv) shall be deemed to run concurrent with the continuation period federally mandated by COBRA (generally 18 months), or any other legally mandated and applicable federal, state, or local coverage period for benefits provided to terminated employees under the health care plan. For purposes of this Agreement, (a) “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and (b) “COBRA Continuation Period” shall mean the continuation period for medical and dental insurance to be provided under the terms of this Agreement which shall commence on the first day of the calendar month following the month in which the date of termination falls and generally shall continue for an 18 month period. Employee shall be entitled to reimbursement of life insurance premiums as provided in this Section ‎3.5(iv) to the extent such expense is actually incurred for such calendar year and reasonably substantiated. Any such reimbursement shall be made no later than the end of the calendar year following the calendar year in which such expense is incurred by Employee; provided, however, that any life insurance premiums incurred prior to the Six Month Payment Date shall not be reimbursed prior to such Six Month Payment Date. Notwithstanding the foregoing, no reimbursement provided for any expense incurred in one taxable year will affect the amount available in another taxable year, and the right to this reimbursement is not subject to liquidation or exchange for another benefit.
3.6 If Employee’s employment is terminated by reason of Section ‎3.4(iii) or ‎(iv), Employee’s estate, in the case of death, or Employee (or his legal guardian), in the case of

8


Permanent Disability, shall be entitled to payment of: (a) any base salary earned, accrued or owing to Employee’s estate or Employee (or his legal guardian), as applicable, through the effective date of termination of employment, (b) any individual bonuses or individual incentive compensation not yet paid but due and payable under Employer’s and/or Employer Entities’ plans for years prior to the year of Employee’s termination of employment, (c) a pro rata share of any individual bonuses or individual non‑equity based incentive compensation, based on the target levels set for such bonuses, under Employer’s and/or Employer Entities’ plans for the year of Employee’s termination of employment based on the portion of such year that Employee was employed by Employer, (d) all reasonable and customary expenses incurred by Employee in performing services for the Employer and/or Employer Entities prior to the effective date of termination of employment, (e) vested amounts under the Deferred Compensation Plan, if any (f) the amount of accrued, but unused, vacation time, and (g) participation in the Retiree Medical Benefit Plan, if applicable, and in the event of Employee’s death, Employee’s spouse shall be entitled to any benefits which she is eligible to receive under such plan. All payments shall be paid no later than 60 days after the effective date of termination of employment; provided, however, that all payments under clause (b) shall be paid no later than the time that such amounts are paid to similarly situated employees in accordance with the applicable plan terms and all payments under clause (e) shall be paid in accordance with such plan’s terms.
3.7 Involuntary Termination In Connection with a Change in Control . In the event the Employee’s employment is terminated during the 90-day period immediately preceding a Change in Control, or on or within the one-year period immediately following a Change in Control (a “Termination In Connection With A Change In Control”) by: (i) the Employee for Good Reason or (ii) the Employer other than (a) for Employer Cause, (b) due to the Employee’s death or (c) due to Permanent Disability, the Employee shall be entitled to receive the benefits set forth in Section ‎3.8. For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the date of this Agreement: (a) any merger, consolidation or business combination in which the stockholders of Employer immediately prior to the merger, consolidation or business combination do not own at least a majority of the outstanding equity interests of the surviving parent entity, (b) the sale of all or substantially all of Employer’s assets in a single transaction or a series of related transactions, (c) the acquisition of beneficial ownership or control of (including, without limitation, power to vote) a majority of the outstanding common stock of Employer by any person or entity (including a “group” as defined by or under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), (d) the stockholders of Employer approve any plan for the dissolution or liquidation of Employer, or (e) a contested election of directors, as a result of which or in connection with which the persons who were directors of Employer before such election or their nominees cease to constitute a majority of Employer’s Board of Directors.
3.8 Subject to the provisions of Section ‎3.9, if Employee’s employment is terminated pursuant to Section ‎3.7, Employee shall be entitled to each of the following:
(i) Employer shall pay to Employee a lump sum cash payment equal to (a) two and one-half (2.5) times Employee’s base salary in effect as of the effective date of termination, plus (b) two and one-half (2.5) times Employee’s Target Bonus for the year in which the effective date of the termination occurs. Except as otherwise provided herein, such compensation shall be paid to Employee in accordance with the following payment schedule: (a)

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an amount equal to the maximum amount eligible to be paid under Treas. Reg. §1.409A-1(b)(9)(iii) shall be paid to Employee no later than 60 days after the effective date of termination of employment; and (b) the remaining balance of such compensation shall be paid to Employee in equal installments in accordance with Employer’s customary payroll practices commencing the first pay period after the Six Month Payment Date and ending on the earlier to occur of (1) the 12-month anniversary of the effective date of such termination of employment, or (2) the date Employee violates any of the covenants set forth in ‎Article 4 or ‎Article 5 hereof.
(ii) Employee shall be entitled to a pro rata share of any individual annual cash incentive bonuses or individual annual cash incentive compensation, based on the target levels set for such bonuses, under Employer’s and/or Employer Entities’ plans for the year of Employee’s termination of employment based on the portion of such year that Employee was employed by Employer. Payment shall be made, in lump sum, no later than 60 days after effective date of termination of employment.
(iii) Employee shall be entitled to: (a) any base salary earned, accrued or owing to him under this Agreement through the effective date of termination of employment, (b) any individual bonuses or individual incentive compensation not yet paid, but due and payable under Employer’s and/or Employer Entities’ plans for years prior to the year of Employee’s termination of employment, (c) reimbursement for all reasonable and customary expenses incurred by Employee in performing services for the Employer and/or the Employer Entities prior to the effective date of termination of employment, (d) payment of vested amounts under the Deferred Compensation Plan, if any and (e) payment equal to the amount of accrued, but unused, vacation time. All payments shall be paid no later than 60 days after the effective date of termination of employment; provided, however, that all payments under clause (b) shall be paid no later than the time that such amounts are paid to similarly situated employees in accordance with the applicable plan terms and all payments under clause (d) shall be paid in accordance with such plan’s terms.
(iv) To the extent permitted by applicable law and the Benefit Plans, Employer shall maintain Employee’s paid coverage for health insurance (through the payment of Employee’s COBRA premiums) and other dental and life insurance benefits (through the reimbursement of Employee’s premiums upon conversion to individual policy) until the earlier to occur of: (a) Employee obtaining the age of 65, (b) the date Employee is provided by another employer benefits substantially comparable to the benefits provided by the above-referenced Benefit Plans (which Employee must provide prompt notice with respect thereto to the Employer), or (c) the expiration of the COBRA Continuation Period. During the applicable period of coverage described in the foregoing sentence, Employee shall be entitled to benefits on substantially the same basis as would have otherwise been provided had Employee not been terminated and Employer will have no obligation to pay any benefits to, or premiums on behalf of, Employee after such period ends. To the extent that such benefits are available under the above-referenced Benefit Plans and Employee had such coverage immediately prior to termination of employment, such continuation of benefits for Employee shall also cover Employee’s dependents for so long as Employee is receiving benefits under this paragraph (iv). The COBRA Continuation Period for medical and dental insurance under this paragraph (iv) shall be deemed to run concurrent with the continuation period federally mandated by COBRA (generally 18 months), or any other legally mandated and applicable federal, state, or local

10


coverage period for benefits provided to terminated employees under the health care plan. Employee shall be entitled to reimbursement of life insurance premiums as provided in this Section ‎3.8(iv) to the extent such expense is actually incurred for such calendar year and reasonably substantiated. Any such reimbursement shall be made no later than the end of the calendar year following the calendar year in which such expense is incurred by Employee; provided, however, that any life insurance premiums incurred prior to the Six Month Payment Date shall not be reimbursed prior to such Six Month Payment Date. Notwithstanding the foregoing, no reimbursement provided for any expense incurred in one taxable year will affect the amount available in another taxable year, and the right to this reimbursement is not subject to liquidation or exchange for another benefit.
(v) Reserved.
(vi) Employer shall pay to Employee a lump sum cash payment of $15,000 in order to cover the cost of outplacement assistance services for Employee and other expenses associated with seeking another employment position. Payment shall me made, in lump sum, no later than 60 days after the effective date of termination of employment.
3.9 The severance benefit paid and provided to Employee pursuant to Section ‎3.3, Section ‎3.5, ‎3.8 and/or Section ‎3.10 shall be in consideration of Employee’s continuing obligations hereunder after such termination of employment, including, without limitation, Employee’s obligations under ‎Article 4 and ‎Article 5. Further, as a condition to the receipt of such severance benefit, Employer shall require Employee to first execute a release, in substantially the form attached hereto as Annex A , releasing Employer and all other Employer Entities, and their respective officers, directors, employees, and agents, from any and all claims and from any and all causes of action of any kind or character, including, but not limited to, all claims and causes of action arising out of Employee’s employment with Employer and any other Employer Entities or the termination of such employment. Unless otherwise required by applicable law, the release must be executed by the Employee within thirty (30) days of the date of termination of employment. If the Employee fails or otherwise refuses to execute a release within the time specified herein, or revokes the release, the Employee will not be entitled to any such severance benefits and the Employer shall have no further obligations with respect to the payment of the severance benefits. The performance of Employer’s obligations under Section ‎3.3, Section ‎3.5, Section ‎3.8 and/or Section ‎3.10 and the receipt of the severance benefit provided thereunder by Employee shall constitute full settlement of all such claims and causes of action. Employee shall not be under any duty or obligation to seek or accept other employment following a termination of employment pursuant to which a severance benefit payment or benefit under Section ‎3.3, Section ‎3.5, Section ‎3.8 and/or Section ‎3.10 is owing and the amounts and benefits due Employee pursuant to Section ‎3.3, Section ‎3.5, Section ‎3.8 and/or Section ‎3.10 shall not be reduced or suspended, except as otherwise provided, if Employee accepts subsequent employment or earns any amounts as a self-employed individual, provided, however that in the event Employee breaches any of Employee’s obligations under Articles ‎4 or ‎5 of this Agreement, then, in addition to Employer’s right to specific performance pursuant to Section ‎5.5 or any other rights that Employer or each Employer Entity may have under this Agreement or otherwise, Employer and each Employer Entity shall have the right to terminate payment of any amounts or benefits to which Employee would otherwise be entitled pursuant to this ‎Article 3. Employee’s rights under Section ‎3.3, Section ‎3.5, Section ‎3.8 and/or Section ‎3.10 are Employee’s sole and

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exclusive rights against the Employer, or any affiliate of Employer, and the Employer’s and the Employer Entities’ sole and exclusive liability to Employee under this Agreement, whether such claim is based in contract, tort or otherwise, for the termination of his employment relationship with Employer. Employee agrees that all disputes relating to Employee’s employment or termination of employment shall be resolved through Employer’s Dispute Resolution Plan as provided in Section ‎7.7 hereof; provided, however, that decisions as to whether there is “Employer Cause” for termination of the employment relationship with Employee and whether and as of what date Employee has become Permanently Disabled shall be limited to whether such decision was reached in good faith. Nothing contained in this ‎Article 3 shall be construed to be a waiver by Employee of any benefits accrued for or due Employee under any employee benefit plan (as such term is defined in the Employees’ Retirement Income Security Act of 1974, as amended) maintained by Employer except that Employee shall not be entitled to any severance benefits pursuant to any severance plan or program of the Employer and/or the Employer Entities except as outlined in this Agreement.
3.10 Vesting of Equity . With respect to the Emergence Award and any equity awards or grants made by Employer and/or any Employer Entity after the date of this Agreement, and notwithstanding any provision to the contrary in any applicable plan, program or agreement, upon a termination of Employee’s employment with Employer pursuant to any of the subparagraphs of Section ‎3.4 or Section ‎3.7, all stock options, performance share, restricted stock, restricted stock unit and other equity rights held by the Employee will become fully vested and/or exercisable, as the case may be, on the date on which such termination of employment occurs, and all stock options held by the Employee shall remain exercisable until the earlier to occur of: (i) the expiration date of the applicable option term or (ii) the two (2) year anniversary of Employee’s termination date; provided, however, that the payment of performance-based awards will continue to be subject to the attainment of the performance goals as specified in the applicable plan or award agreement.
3.11 Termination of the employment relationship does not terminate those obligations imposed by this Agreement, which are continuing obligations, including, without limitation, Employee’s obligations under ‎Article 4 and ‎Article 5.
3.12 The payment of any monies to Employee under this Agreement after the date of termination of employment does not constitute an offer or a continuation of employment of the Employee. In no event shall Employee represent or hold himself out to be an employee of Employer or any Employer Entity after the effective date of termination of employment. Except where Employer is lawfully required to withhold any federal, state, or local taxes, Employee shall be responsible for any and all federal, state, or local taxes that arise out of any payments to Employee hereunder.
3.13 During any period during which any monies are being paid to Employee under this Agreement after the effective date of termination of employment, Employee shall provide to Employer and any Employer Entity reasonable levels of assistance in answering questions concerning the business of Employer and any Employer Entity, transition of responsibility, or litigation, provided that all out of pocket expenses of Employee reasonably incurred in connection with such assistance are fully and promptly reimbursed and that any such assistance after the Non-Compete Period (as defined below) shall not interfere or conflict with

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the obligations which Employee may owe to any other employer, and shall always be less than 8 hours per week.
ARTICLE 4: OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION:
4.1 All information, ideas, concepts, improvements, innovations, developments, methods, processes, designs, analyses, drawings, reports, discoveries, and inventions, whether patentable or not or reduced to practice, which are conceived, made, developed or acquired by Employee, individually or in conjunction with others, during Employee’s employment by Employer or any of the Employer Entities, both before and after the date hereof (whether during business hours or otherwise and whether on Employer’s premises or otherwise) which relate to the business, products or services of Employer or the Employer Entities (including, without limitation, all such information relating to corporate opportunities, research, financial and sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their requirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names, marks, and any copyrightable work, trade mark, trade secret or other intellectual property rights (whether or not composing confidential information, and all writings or materials of any type embodying any of such items (collectively, “Work Product”)), shall be the sole and exclusive property of Employer or an Employer Entity, as the case may be, and shall be treated as “work for hire.” It is recognized that Employee is an experienced executive in the business of the Employer Entities and through several decades of prior work in the industry acquired and retains knowledge, contacts, and information which are not bound by this ‎Article 4.
4.2 Employee shall promptly and fully disclose all Work Product to Employer and shall cooperate and perform all actions reasonably requested by Employer (whether during or after the Term of employment) to establish, confirm and protect Employer’s and/or Employer Entities’ right, title and interest in such Work Product. Without limiting the generality of the foregoing, Employee agrees to assist Employer, at Employer’s expense, to secure Employer’s and Employer Entities’ rights in the Work Product in any and all countries, including the execution by Employee of all applications and all other instruments and documents which Employer and/or the Employer Entities shall deem necessary in order to apply for and obtain rights in such Work Product and in order to assign and convey to Employer and/or the Employer Entities the sole and exclusive right, title and interest in and to such Work Product. If Employer is unable because of Employee’s mental or physical incapacity or for any other reason (including Employee’s refusal to do so after request therefor is made by Employer) to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product belonging to or assigned to Employer and/or the Employer Entities pursuant to Section ‎4.1 above, then Employee by this Agreement irrevocably designates and appoints Employer and its duly authorized officers and agents as Employee’s agent and attorney-in-fact to act for and in Employee’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal force and effect as if executed by Employee. Employee agrees not to apply for or pursue any application for any United States or foreign patents or copyright registrations covering any Work Product other than

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pursuant to this Section in circumstances where such patents or copyright registrations are or have been or are required to be assigned to Employer or any Employer Entity.
4.3 Employee acknowledges that the businesses of Employer and the Employer Entities are highly competitive and that their strategies, methods, books, records, and documents, their technical information concerning their products, equipment, services, and processes, procurement procedures and pricing techniques, the names of and other information (such as credit and financial data) concerning their former, present or prospective customers and business affiliates, all comprise confidential business information and trade secrets which are valuable, special, and unique assets which Employer and/or the Employer Entities use in their business to obtain a competitive advantage over their competitors. Employee further acknowledges that protection of such confidential business information and trade secrets against unauthorized disclosure and use is of critical importance to Employer and the Employer Entities in maintaining their competitive position. Employee acknowledges that by reason of Employee’s duties to, and association with, Employer and the Employer Entities, Employee has had and will have access to, and has and will become informed of, confidential business information which is a competitive asset of Employer and the Employer Entities. Employee hereby agrees that Employee will not, at any time during or after his employment by Employer, make any unauthorized disclosure of any confidential business information or trade secrets of Employer or the Employer Entities, or make any use thereof, except in the carrying out of his employment responsibilities hereunder. Employee shall take all necessary and appropriate steps to safeguard confidential business information and protect it against disclosure, misappropriation, misuse, loss and theft. Confidential business information shall not include information in the public domain (but only if the same becomes part of the public domain through a means other than a disclosure prohibited hereunder). The above notwithstanding, a disclosure shall not be unauthorized if (i) it is required by law or by a court of competent jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute resolution or other legal proceeding in which Employee’s legal rights and obligations as an employee or under this Agreement are at issue; provided, however, that Employee shall, to the extent practicable and lawful in any such events, give prior notice to Employer of his intent to disclose any such confidential business information in such context so as to allow Employer or an Employer Entity an opportunity (which Employee will not oppose) to obtain such protective orders or similar relief with respect thereto as may be deemed appropriate. Any information not specifically related to the Employer Entities would not be considered confidential to the Employer.
4.4 All written materials, records, and other documents made by, or coming into the possession of, Employee during the period of Employee’s employment by Employer which contain or disclose confidential business information or trade secrets of Employer or the Employer Entities, or which relate to Employee’s Work Product described in Section ‎4.1 above, shall be and remain the property of Employer, or the Employer Entities, as the case may be. Upon termination of Employee’s employment, for any reason, Employee promptly shall deliver the same, and all copies thereof, to Employer.
ARTICLE 5: COVENANT NOT TO COMPETE:
5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee’s employment with certain

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Employer Entities, he has prior to the date of this Agreement, and will during the Term of employment, become familiar with Employer’s and the Employer Entities’ trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee’s services have been and shall be of special, unique and extraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he will have access to Employer’s and the Employer Entities’ relationships and goodwill with their customers, distributors, suppliers and employees. In light of Employee’s value to, and knowledge of, Employer, the Employer Entities, and the Business (as defined below) and Employee’s compensation pursuant to this Agreement, Employee agrees that, during the Term and for a period of one (1) year thereafter (the “Non-Compete Period”), he will not, in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of any corporation (or sub-unit, in the case of a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that Employer or any Employer Entity engages in during the Term of employment, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (the “Business”). Such restriction shall cover Employee’s activities anywhere in the states in which Employer conducts operations during the Term of this Agreement.
5.2 During the applicable Non-Compete Period, Employee will not solicit or induce any person who is or was employed by any of the Employer Entities at any time during such term or period (i) to interfere with the activities or businesses of Employer or any Employer Entity or (ii) to discontinue his or her employment with any of the Employer Entities.
5.3 During the applicable Non-Compete Period, Employee will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of any of the Employer Entities to divert their business to any competitor of Employer or any Employer Entity or in any way interfere with the relationship between any such customer, distributor or supplier and Employer and/or any Employer Entity (including, without limitation, making any negative statements or communications about Employer and the Employer Entities). During the applicable Non-Compete Period, Employee will not, directly or indirectly, acquire or attempt to acquire any business in the states in which Employer conducts operations during the Term of this Agreement; prior to the termination of the Term of employment, has made an acquisition proposal relating to the possible acquisition of such business by Employer or any Employer Entity, (such business, an “Acquisition Target”); or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than Employer or any Employer Entity.
5.4 Employee understands that the provisions of Sections ‎5.1, ‎5.2 and ‎5.3 hereof may limit his ability to earn a livelihood in a business in which he is involved, but as a member of the management group of Employer and the Employer Entities he nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Employer and any of the Employer Entities; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation,

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any amounts or benefits provided under ‎Article 3 hereof, is sufficient to compensate Employee for the restrictions contained in Sections ‎5.1, ‎5.2 and ‎5.3 hereof. Subject to the final sentence of Section ‎5.1, in consideration of the foregoing and in light of Employee’s education, skills and abilities, Employee agrees that he will not assert that, and it should not be considered that, any provisions of Sections ‎5.1, ‎5.2 or ‎5.3 otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
5.5 If, at the time of enforcement of Articles ‎4 or ‎5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Employee acknowledges that he is a member of Employer’s and the Employer Entities’ management group with access to Employer’s and Employer Entities’ confidential business information and his services are unique to Employer and the Employer Entities. Employee therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in Articles ‎4 and ‎5 will be inadequate and that in the event of any such breach, Employer and the Employer Entities may, in addition to the other remedies which may be available to them at law, apply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with him) from the breach of such covenants and agreements and to enforce, or prevent any violations of, the provisions of this Agreement. In addition, in the event of a breach or violation by Employee of this ‎Article 5, the applicable Non-Compete Period set forth in this Article shall be tolled until such breach or violation has been cured.
5.6 Each of the covenants of this ‎Article 5 are given by Employee as part of the consideration for this Agreement and as an inducement to Employer to enter into this Agreement and accept the obligations hereunder.
5.7 Provisions of ‎Article 5 shall not be binding on Employee if Employer fails to perform any material obligation under this Agreement, including, without limitation, the failure of Employer to make timely payments of monies due to Employee under ‎Article 3 of this Agreement; provided, that (a) Employee has notified Employer in writing within 30 days of the date of the failure of Employer to perform such material obligation and (b) such failure remains uncorrected and/or uncontested by Employer for 15 days following the date of such notice.
5.8 Notwithstanding anything to the contrary contained in this ‎Article 5, the non-competition and non-solicitation provisions of this ‎Article 5 shall not apply in the event that Employee resigns from the Employer pursuant to Section ‎3.2(iii) or Section 3.2(iv) and Employer elects not to exercise its option, in its sole discretion, to subject Employee to the non-competition and non-solicitation provisions of this Article 5 in accordance with Section ‎3.3(iii) herein; provided that Employee does not receive, or does not elect to receive, any of the benefits or payments under Sections ‎3.5, ‎3.8 and/or ‎3.10 of this Agreement (if applicable).
5.9 If Employee intentionally and materially breaches any material obligation under ‎Article 4 or materially breaches any material obligation under ‎Article 5 hereof, Employer

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shall provide written notice of such breach to Employee. If Employee fails to cure such breach, if curable, within 5 days of Employee’s receipt of such written notice, the Employee agrees that, within 30 days after the expiration of such 5-day cure period, Employee shall pay to Employer, in cash, an amount equal to any and all payments paid to or on behalf of Employee under Article 3 of this Agreement including, without limitation, to the extent Employee has sold any equity that vested pursuant to Section ‎3.10 hereof, any cash proceeds received from such sale. Employee agrees that failure to make such timely payment to Employer constitutes an independent and material breach of this Agreement by Employee, for which Employer may seek recovery of the unpaid amount as liquidated damages, in addition to all other rights and remedies Employer may have resulting from Employee’s breach of the obligations set forth in ‎Article 4 and/or ‎Article 5 hereof. Employee agrees that timely payment to Employer as set forth herein is reasonable and necessary because the damages that will result from a breach of ‎Article 4 and/or ‎Article 5 hereof cannot readily be ascertained. Further, Employee agrees that timely payment to Employer as set forth herein is not a penalty, and it does not preclude Employer from seeking all other remedies that may be available to Employer, including, without limitation, those set forth in this ‎Article 5.
ARTICLE 6: CODE SECTION 280G:
6.1 The provisions of this ‎Article 6 shall apply notwithstanding anything in this Agreement to the contrary. In the event that it shall be determined that any payment or distribution by the Employer or its Affiliates to, or for the benefit of, the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Plan or otherwise (a "Payment"), would constitute an "excess parachute payment" within the meaning of Section 280G of the Code, the Employer and its Affiliates will apply a limitation on the Payment amount as specified in Section ‎6.2 unless it is determined that the "Net After Tax Benefits" to the Employee would be greater if the limitations of Section ‎6.2 were not imposed. For purposes of this ‎Article 6, "Net After Tax Benefits" shall mean the present value of the Payments net of all taxes imposed on the Employee with respect thereto, including but not limited to excise taxes imposed under Section 4999 of the Code, determined by applying the highest marginal income tax rate applicable to the Participant for such year.
6.2 To the extent required by Section ‎6.1 above, the aggregate present value of the Payments under ‎Article 3 of this Agreement ("Termination Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Termination Payments without causing any Payment to be subject to the limitation of deduction under Section 280G of the Code. For purposes of this ‎Article 6, "present value" shall be determined in accordance with Section 280G(d)(4) of the Code. The total reduction to Termination Payments required under this ‎Article 6 necessary to achieve the Reduced Amount shall be made against Termination Payments that are exempt from Section 409A.
6.3 Except as set forth in the next sentence, all determinations to be made under this ‎Article 6 shall be made by the nationally recognized independent public accounting firm used by Employer immediately prior to such change in control (“Accounting Firm”), which Accounting Firm shall provide its determinations and any supporting calculations to Employer and the Employee within ten (10) days of the Employee’s termination date. The value of the

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Employee’s non-competition covenant under ‎Article 5 of this Agreement shall be determined by independent appraisal by a nationally-recognized business valuation firm acceptable to both the Employee and Employer, and a portion of the Agreement Payments shall, to the extent of that appraised value, be specifically allocated as reasonable compensation for such non-competition covenant and shall not be treated as a parachute payment. Any determinations by the Accounting Firm shall be binding upon Employer and the Employee.
6.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this ‎Article 6 shall be borne solely by Employer.
ARTICLE 7: MISCELLANEOUS:
7.1 For purposes of this Agreement, the terms “affiliate” or “affiliates” mean an entity or entities in which Employer has a 20% or more direct or indirect equity interest.
7.2 Section 409A .
(i) The provisions of this Agreement will be administered, interpreted and construed in a manner intended to comply with Section 409A of the Code, the regulations issued thereunder or any exception thereto (or disregarded to the extent such provision cannot be so administered, interpreted, or construed).
(ii) For purposes of Section 409A, each payment hereunder, including each salary continuation installment payment, shall be treated as a separate payment. For purposes of this Agreement, each payment is intended to be excepted from Section 409A to the maximum extent provided under Section 409A as follows: (i) each payment that is scheduled to be made following Employee’s termination date and within the applicable 2½ month period specified in Treas. Reg. § 1.409A-1(b)(4) is intended to be excepted under the short-term deferral exception as specified in Treas. Reg. § 1.409A-1(b)(4); (ii) post-termination medical benefits are intended to be excepted under the medical benefits exception as specified in Treas. Reg. § 1.409A-1(b)(9)(v)(B), and (iii) each payment that is not otherwise excepted under the short-term deferral exception or medical benefits exception is intended to be excepted under the involuntary separation pay exception as specified in Treas. Reg. § 1.409A-1(b)(9)(iii). The Employee shall have no right to designate the date of any payment hereunder.
(iii) With respect to payments subject to Section 409A of the Code (and not excepted therefrom), if any, it is intended that each payment is paid on permissible distribution event and at a specified time consistent with Section 409A of the Code. The Employer reserves the right to accelerate and/or defer any payment to the extent permitted and consistent with Section 409A. Notwithstanding any provision of this Agreement to the contrary, to the extent that a payment hereunder is subject to Section 409A of the Code (and not excepted therefrom) and payable on account or a termination of employment, such payment shall be delayed for a period of six months after the date of termination (or, if earlier, the death of the Employee) if the Employee is a “specified employee” (as defined in Section 409A of the Code and determined in accordance with the procedures established by the Employer). Any payment that would otherwise have been due or owing during such six-month period will be paid

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immediately following the end of the six-month period in the month following the month containing the 6-month anniversary of the date of termination.
(iv) For purposes of the Agreement, the Employee shall be considered to have experienced a termination of employment only if the Employee has terminated employment with the Company and all of its controlled group members within the meaning of Section 409A of the Code. For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that the language “at least 50 percent” shall be used instead of “at least 80 percent” in each place it appears in Section 1563(a)(1),(2) and (3) of the Code and Treas. Reg. § 1.414(c)-2. Whether the Employee has terminated employment will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A of the Code.
(v) Notwithstanding any provision of this Agreement to the contrary, Employee acknowledges and agrees that the Employer shall not be liable for, and nothing provided or contained in this Agreement will be construed to obligate or cause the Employer to be liable for, any tax, interest or penalties imposed on Employee related to or arising with respect to any violation of Section 409A .
7.3 For purposes of this Agreement, notices and all other communications provided for herein shall be in writing and shall be deemed to have been duly given when received by or tendered to Employee or Employer, as applicable, by pre-paid courier or by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Employer:
Contura Energy, Inc.
300 Martin Luther King Jr., Blvd.
Suite 500
PO Box 848
Bristol, TN 37620
Attn: General Counsel

If to Employee: To his last known personal residence
7.4 This Agreement shall be governed by and construed and enforced, in all respects in accordance with; the law of the Commonwealth of Virginia, without regard to principles of conflicts of law, unless preempted by federal law, in which case federal law shall govern; provided, however, that Employer’s Dispute Resolution Plan, or if no such plan is in place, then the rules of the American Arbitration Association shall govern in all respects with regard to the resolution of disputes hereunder as provided in Section ‎7.7.
7.5 No failure by either party hereto at any time to give notice of any breach by the other party of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

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7.6 It is a desire and intent of the parties that the term, provisions, covenants, and remedies contained in this Agreement shall be enforceable to the fullest extent permitted by law. If any such term, provision, covenant, or remedy of this Agreement or the application thereof to any person, association, or entity or circumstances shall, to any extent, be construed to be invalid or unenforceable in whole or in part, then such term, provision, covenant, or remedy shall be construed in a manner so as to permit its enforceability under applicable law to the fullest extent permitted by law. In any case, the remaining provisions of this Agreement or the application thereof to any person, association, or entity or circumstances other than those to which they have been held invalid or unenforceable, shall remain in full force and effect.
7.7 It is the mutual intention of the parties to have any dispute concerning this Agreement resolved out of court. Accordingly, the parties agree that any such dispute shall, as the sole and exclusive remedy, be submitted for resolution, then pursuant to binding arbitration to be held in Abingdon, Virginia, in accordance with the employment arbitration rules (except as modified below) of the American Arbitration Association and with the Expedited Procedures thereof (collectively, the “Rules”); provided, however, that the Employer, on its own behalf and on behalf of any of the Employer Entities, and the Employers Entities shall be entitled to seek a restraining order or injunction in any court of competent jurisdiction to prevent any breach or the continuation of any breach of the provisions of Articles ‎4 and ‎5 and Employee hereby consents that such restraining order or injunction may be granted without the necessity of the Employer or any Employer Entity posting any bond. Each of the parties hereto agrees that such arbitration shall be conducted by a single arbitrator selected in accordance with the Rules; provided that such arbitrator shall be experienced in deciding cases concerning the matter which is the subject of the dispute. Each of the parties agrees that in any such arbitration that pre-arbitration discovery shall be limited to the greatest extent provided by the Rules, that the award shall be made in writing no more than 30 days following the end of the proceeding, that the arbitration shall not be conducted as a class action, that the arbitration award shall not include factual findings or conclusions of law. Any award rendered by the arbitrator shall be final and binding and judgment may be entered on it in any court of competent jurisdiction. Each of the parties hereto agrees to treat as confidential the results of any arbitration (including, without limitation, any findings of fact and/or law made by the arbitrator) and not to disclose such results to any unauthorized person.
7.8 This Agreement shall be binding upon and inure to the benefit of Employer, the Employer Entities, their respective successors in interest, or any other person, association, or entity which may hereafter acquire or succeed to all or substantially all of the business assets of Employer and the Employer Entities by any means, whether indirectly or directly, and whether by purchase, merger, consolidation, or otherwise. Employee’s rights and obligations under this Agreement are personal and such rights, benefits, and obligations of Employee shall not be voluntarily or involuntarily assigned, alienated, or transferred, whether by operation of law or otherwise, without the prior written consent of Employer, other than in the case of death or Permanent Disability of Employee.
7.9 This Agreement replaces and merges any previous agreements and discussions pertaining to the subject matter covered herein, including, without limitation, the Third Amended and Restated Agreement. This Agreement constitutes the entire agreement of the parties with regard to the terms of Employee’s employment, termination of employment and

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severance benefits, and contains all of the covenants, promises, representations, warranties, and agreements between the parties with respect to such matters. Each party to this Agreement acknowledges that no representation, inducement, promise, or agreement, oral or written, has been made by either party with respect to the foregoing matters which is not embodied herein, and that no agreement, statement, or promise relating to the employment of Employee by Employer that is not contained in this Agreement shall be valid or binding. This Agreement may not be amended orally, but only by an instrument in writing signed by each of the parties to this Agreement; provided, however, the Employer may, solely to the extent necessary to comply with Section 409A of the Code, modify the terms of this Agreement if it is determined that such terms would subject any payments or benefits hereunder to the additional tax and/or interest assessed under Section 409A of the Code.
7.10 Notwithstanding any provision of this Agreement to the contrary, the parties’ respective rights and obligations under Articles ‎3, ‎4, ‎5, ‎6, and this Article ‎7 will survive any termination or expiration of this Agreement or the termination of Employee’s employment for any reason whatsoever.
7.11 The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
7.12 This Agreement may be executed in one or more counterparts, each of which shall deemed to be in an original but all of which together will constitute one and the same instrument.
7.13 For purposes of this Agreement,
“ Accounting Firm ” shall have the meaning set forth in Section 6.4.
“ Affiliate ” shall have the meaning set forth in Section 7.1.
“ Agreement ” shall have the meaning set forth in the first paragraph hereof.
“ Benefit Plans ” shall have the meaning set forth in Section 3.5(iv).
“ Board of Directors ” shall have the meaning set forth in Section 1.2.
“ Business ” shall have the meaning set forth in Section 5.1.
“ CEO ” shall have the meaning set forth in Section 1.2.
“ Change In Control ” shall have the meaning set forth in Section 3.7.
“ COBRA ” shall have the meaning set forth in Section 3.5(iv).
“ COBRA Contribution Period ” shall have the meaning set forth in Section 3.5(iv).

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“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“ Code of Ethics ” shall have the meaning set forth in Section 1.3.
“ Compensation Committee ” shall have the meaning set forth in Section 2.1.
“ Deferred Compensation Plan ” shall have the meaning set forth in Section 3.3(i).
“ Effective Date ” shall have the meaning set forth in the first paragraph hereof.
“ Emergence Awards ” shall have the meaning set forth in Section 2.4.
“ Employee ” shall have the meaning set forth in the first paragraph hereof.
“ Employer ” shall have the meaning set forth in the first paragraph hereof.
“ Employer Cause ” shall have the meaning set forth in Section 3.2(ii).
“ Employer Entity ” shall have the meaning set forth in Section 1.4.
“ Good Reason ” shall have the meaning set forth in Section 3.4(i).
“ Grant Agreements ” shall have the meaning set forth in Section 2.4.
“ Group ” shall have the meaning set forth in Section 3.7.
“ Net After Tax Benefits ” shall have the meanings set forth in Section 6.1.
“ Non-Compete Period ” shall have the meaning set forth in Section 5.1.
“ Notice Period ” shall have the meaning set forth in Section 3.4(i).
“ Payment ” shall have the meaning set forth in Section 6.1.
“ Permanent Disability ” shall have the meaning set forth in Section 3.4(iv).
“ Retiree Medical Benefit Plan ” shall have the meaning set forth in Section 3.3(ii).
“ Retirement ” shall have the meaning set forth in Section 3.2(i).
“ Rules ” shall have the meaning set forth in Section 7.7.
“ Shares ” shall have the meaning set forth in Section 2.4.
“ Six Month Payment Date ” shall have the meaning set forth in Section 3.3(iii).
“ Specified Employee ” shall have the meaning set forth in Section 7.2(iii).
“ Subsequent Employer ” shall have the meaning set forth in Section 1.6.

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“ Target Bonus ” shall have the meaning set forth in Section 2.2.
“ Term ” shall have the meaning set forth in Section 1.1.
“ Termination In Connection With A Change In Control ” shall have the meaning set forth in Section 3.7.
“ Termination Payments ” shall have the meaning set forth in Section 6.2.
“ Work Product ” shall have the meaning set forth in Section 4.1.
“ Date of Termination ” shall have the meaning set forth in the Preamble of Annex A.
“ EEOC ” shall have the meaning set forth in Section 1(c) of Annex A.
“ Employment Agreement ” shall have the meaning set forth in the Preamble of Annex A.
“ Executive ” shall have the meaning set forth in the Preamble of Annex A.
“ Releasees ” shall have the meaning set forth in Section 1(a) of Annex A.
[Signature Page Follows]


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IN WITNESS WHEREOF , Employer and Employee have duly executed this Agreement in multiple originals to be effective as of the Effective Date.
EMPLOYER
CONTURA ENERGY, INC.
By:
/s/ John DeGroote
Name: John DeGroote
  
Title: President and Secretary
  

EMPLOYEE
/s/ Kevin S. Crutchfield
Kevin S. Crutchfield


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ANNEX A
SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE
THIS SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made as of this _____ day of ___________, _____, by and between Contura Energy, Inc. (the “Company”) and Kevin S. Crutchfield (“Executive”).
WHEREAS, the Company advises Executive to consult with Executive’s own legal counsel before signing this Agreement; and
WHEREAS, Executive formerly was employed by the Company as ____________; and
WHEREAS, the Company employs Executive pursuant to the terms and conditions set forth in that certain Employment Agreement dated as of July 26, 2016 between Executive and the Company, (as amended from time to time, the “Employment Agreement”) which provides for certain payments and benefits in the event that Executive’s employment is terminated under certain circumstances; and
WHEREAS, an express condition of Executive’s entitlement to the payments and benefits under the Employment Agreement is the execution of a general release in the form set forth below; and
WHEREAS, Executive and the Company mutually desire to terminate Executive’s employment effective _____________ ____, ____ (“Date of Termination”).
NOW, THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as follows:
1. (a) To the fullest extent permitted by law, Executive, for and in consideration of the commitments of the Company as set forth in paragraph ‎5 of this Agreement, and intending to be legally bound, does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, predecessors, subsidiaries and parents, and their present or former officers, directors, shareholders, employees, and agents, and its and their respective successors, assigns, heirs, executors, and administrators and the current and former trustees or administrators of any pension or other benefit plan applicable to the employees or former employees of the Company (collectively, “Releasees”) from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which Executive ever had, now has, or hereafter may have, whether known or unknown, or which Executive’s heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from any time prior to the date of this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to Executive’s employment relationship with the Company and/or its affiliates, the terms and conditions of that employment relationship, and the termination of that employment relationship, including, but not limited to, any claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Employee Retirement Income Security Act of 1974, the Virginians with Disabilities Act, the Virginia Human Rights Act, the Virginia Wage Payment and Collection Act, and any other claims under

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any federal, state or local common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for attorneys’ fees and costs; provided, that Executive does not release or discharge the Releasees from (i) any rights to any payments, benefits or reimbursements due to Executive under the Employment Agreement or any equity or other award agreement or otherwise; (ii) any rights of Executive to indemnification under any applicable directors’ and officers’ liability insurance policies maintained by the Company; (iii) any rights to any vested benefits due to Executive under any employee benefit plans sponsored or maintained by the Company; or (iv) any rights of Executive as a shareholder or equity holder of the Company. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, implied or express contract or discrimination of any sort. This release is intended to be a general release, and excludes only those claims expressly set forth herein or that Executive cannot release as a matter of law under any statute or common law. Executive is advised to seek independent legal counsel if Executive seeks clarification on the scope of this release.
(b) To the fullest extent permitted by law, and subject to the provisions of paragraph 11 and paragraph 13 below, Executive represents and affirms that Executive has not filed or caused to be filed on Executive’s behalf any charge, complaint or claim for relief against the Company or any Releasee that would be barred by the terms of this Agreement and, to the best of Executive’s knowledge and belief, no outstanding charges, complaints or claims for relief that would be barred by the terms of this Agreement have been filed or asserted against the Company or any Releasee on Executive’s behalf. In the event that there is outstanding any such charge, complaint or claim for relief, Executive agrees to seek its immediate withdrawal and dismissal with prejudice. In the event that for any reason said charge, complaint or claim for relief cannot be withdrawn, Executive shall not voluntarily testify, provide documents or otherwise participate in any investigation or litigation arising therefrom or associated therewith and shall execute such other papers or documents as the Company’s counsel determines may be necessary to have said charge, complaint or claim for relief dismissed with prejudice. Nothing herein shall prevent Executive from testifying in any cause of action when required to do so by process of law. Executive shall promptly inform the Company if called upon to testify.
(c) Executive does not waive any right to file a charge with the Equal Employment Opportunity Commission (“EEOC”) or participate in an investigation or proceeding conducted by the EEOC, but explicitly waives any right to file a personal lawsuit or receive monetary damages that the EEOC might recover if said charge results in an EEOC lawsuit against the Company or Releasees. Executive does not waive the right to challenge the validity of this Agreement.
2. In consideration of the Company’s agreements as set forth in paragraph ‎5 herein, Executive agrees to comply with the limitations described in ‎Article 4 and ‎Article 5 of the Employment Agreement.
3. Executive further agrees and recognizes that Executive has permanently and irrevocably severed Executive’s employment relationship with the Company, that Executive shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ him in the future. Effective as of the Date of Termination, Executive is removed from all boards and committees of the Company and its

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affiliates on which Executive may have previously served. The Company shall deliver to Executive a copy of the documents delivered to the Office of Mine Safety which are necessary for that office to establish an ending date of your positions as an officer and director of Contura Energy, Inc., the Company and their respective subsidiaries.
4. Executive further agrees that Executive will not publicly disparage or subvert the Company or any Releasee, or make any public statement reflecting negatively on the Company, its affiliated corporations or entities, or any of their officers, directors, employees, agents or representatives, including, but not limited to, any matters relating to the operation or management of the Company or any Releasee, Executive’s employment and the termination of Executive’s employment, irrespective of the truthfulness or falsity of such statement. Company agrees that Company will not, and Company will instruct its officers and directors to not, publicly disparage or subvert Executive or make any public statement reflecting negatively on Executive, including, but not limited to, any matters relating to Executive’s performance, Executive’s employment and the termination of Executive’s employment, irrespective of the truthfulness or falsity of such statement.
5. In consideration for Executive’s promises, as set forth herein, the Company agrees to pay or provide to or for Executive the payments and benefits described in the Employment Agreement, the provisions of which are incorporated herein by reference. Except as set forth in this Agreement, it is expressly agreed and understood that Releasees do not have, and will not have, any obligations to provide Executive at any time in the future with any payments, benefits or considerations other than those recited in this paragraph, or those required by law, other than under the terms of any benefit plans which provide benefits or payments to former employees according to their terms.
6. Executive understands and agrees that the payments, benefits and agreements provided in this Agreement are being provided to him in consideration for Executive’s acceptance and execution of, and in reliance upon Executive’s representations in, this Agreement. Executive agrees that absent execution without revocation of this Agreement containing a release of all claims against the Releasees, Executive is not entitled to the payments and benefits set forth in the Employment Agreement.
7. To the fullest extent permitted by law, the Company, including its past, present and future parent entities, shareholders, subsidiaries, divisions, affiliates and related business entities, successors and assigns, for and in consideration of the commitments of the Executive as set forth in this Agreement and the Employment Agreement, and intending to be legally bound, does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Executive, his heirs, successors, and assigns from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which the Company ever had, now has, or hereafter may have, whether known or unknown, by reason of any matter, cause or thing whatsoever, from any time prior to the date of this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to Executive’s employment relationship with the Company; provided, however, that the Company’s release will not waive, release, or otherwise discharge (i) any claim which Executive concealed from the Company, or (ii) any claim for Executive’s material breach of his fiduciary duties to the Company.

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8. Executive acknowledges and agrees that this Agreement and the Employment Agreement supersede any employment agreement or offer letter Executive has with the Company or any Releasee. To the extent Executive has entered into any other enforceable written agreement with the Company or any Releasee that contains provisions that are outside the scope of this Agreement and the Employment Agreement and are not in direct conflict with the provisions in this Agreement or the Employment Agreement, the terms in this Agreement and the Employment Agreement shall not supersede, but shall be in addition to, any other such agreement. Except as set forth expressly herein, no promises or representations have been made to Executive in connection with the termination of Executive’s Employment Agreement, if any, or offer letter, if any, with the Company, or the terms of this Agreement.
9. Executive agrees not to disclose the terms of this Agreement or the Employment Agreement to anyone, except Executive’s spouse, attorney and, as necessary, tax/financial advisor. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this Agreement.
10. Executive represents that Executive does not, without the Company’s prior written consent, presently have in Executive’s possession any records and business documents, whether on computer or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, correspondence, files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the “Corporate Records”) provided by the Company and/or its predecessors, subsidiaries or affiliates or obtained as a result of Executive’s prior employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by Executive while employed by or rendering services to the Company and/or its predecessors, subsidiaries or affiliates. Executive acknowledges that all such Corporate Records are the property of the Company. In addition, Executive shall promptly return in good condition any and all Company owned equipment or property, including, but not limited to, automobiles, personal data assistants, facsimile machines, copy machines, pagers, credit cards, cellular telephone equipment, business cards, laptops, computers, and any other items requested by the Company. As of the Date of Termination, the Company will make arrangements to remove, terminate or transfer any and all business communication lines including network access, cellular phone, fax line and other business numbers.
11. Nothing in this Agreement shall prohibit or restrict Executive from: (i) making any disclosure of information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the Company’s designated legal, compliance or human resources officers; or (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization.
12. The parties agree and acknowledge that the agreement by the Company described herein, and the settlement and termination of any asserted or unasserted claims against the Releasees, are not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed by any of the Releasees to Executive.

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13. Executive agrees and recognizes that should Executive breach any of the obligations or covenants set forth in this Agreement, the Company will have no further obligation to provide Executive with the consideration set forth herein, and will have the right to seek repayment of all consideration paid up to the time of any such breach. Further, Executive acknowledges in the event of a breach of this Agreement, Releasees may seek any and all appropriate relief for any such breach, including equitable relief and/or money damages, attorneys’ fees and costs. Notwithstanding the foregoing, in the event the Company fails to perform any material obligation under the Employment Agreement, including, without limitation, the failure of the Company to make timely payments of monies due to Executive under ‎Article 3 of the Employment Agreement, this Release shall be null and void and Executive shall have the right to pursue any and all appropriate relief for any such failure, including monetary damages, attorneys’ fees and costs; provided, that (i) Executive has notified the Company in writing within 30 days of the date of the failure of the Company to perform such material obligation and (ii) such failure remains uncorrected and/or uncontested by the Company for 15 days following the date of such notice.
14. Executive further agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any violations of this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The dispute resolution provisions set forth in Section 7.7 of the Employment Agreement apply to any dispute regarding the termination of Executive’s employment, and any dispute related to and/or arising under this Agreement, including without limitation any challenge Executive may make regarding the validity of this Agreement.
15. This Agreement and the obligations of the parties hereunder shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Virginia.
16. The parties agree that this Agreement shall be deemed to have been made and entered into in Abingdon, Virginia. Jurisdiction and venue in any proceeding by the Company or Executive to enforce their rights hereunder is specifically limited to any court geographically located in Virginia.
17. Executive certifies and acknowledges as follows:
(a) That Executive has read the terms of this Agreement, and that Executive understands its terms and effects, including the fact that Executive has agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action arising out of Executive’s employment relationship with the Company and the termination of that employment relationship; and
(b) That Executive has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Executive acknowledges is adequate and satisfactory to him and which Executive acknowledges is in addition to any other benefits to which Executive is otherwise entitled; and
(c) That Executive has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement; and

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(d) That Executive does not waive rights or claims that may arise after the date this Agreement is executed; and
(e) That the Company has provided Executive with a period of [twenty-one (21)] or [forty-five (45)] days within which to consider this Agreement, and that Executive has signed on the date indicated below after concluding that this Separation of Employment Agreement and General Release is satisfactory to Executive; and
(f) Executive acknowledges that this Agreement may be revoked by him within seven (7) days after execution, and it shall not become effective until the expiration of such seven (7) day revocation period. In the event of a timely revocation by Executive, this Agreement will be deemed null and void and the Company will have no obligations hereunder.
[SIGNATURE PAGE FOLLOWS]


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Intending to be legally bound hereby, Executive and the Company executed the foregoing Separation of Employment Agreement and General Release this ______ day of ______________, _____.
 
 
Witness:
 
Kevin S. Crutchfield
 
 
 

CONTURA ENERGY, INC.
 
 
By:
 
 
Witness:
 
Name:
 
 
 
 
Title:
 
 
 
 


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ANNEX B
EMERGENCE AWARD GRANT AGREEMENT (30-DAY VWAP OPTIONS)







ANNEX C
EMERGENCE AWARD GRANT AGREEMENT (FIXED-PRICE OPTIONS)


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Exhibit 10.36

CONTURA ENERGY, INC.
MANAGEMENT INCENTIVE PLAN
ARTICLE 1
PURPOSE
Contura Energy, Inc., a Delaware corporation (the “ Company ”), hereby establishes the Contura Energy, Inc. Management Incentive Plan (the “ Plan ”), effective as of July 26, 2016 (the “ Effective Date ”). The purpose of the Plan is to advance the interests of the Company and its stockholders by providing a means by which the Company and its Affiliates and Subsidiaries can attract, retain and motivate selected directors, officers, other employees and consultants and provide such personnel with an opportunity to participate in the increased value of the Company which their effort, initiative and skill have helped produce.
ARTICLE 2
DEFINITIONS
“ Affiliate ” means, with respect to any person or entity, any other person or entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such person or entity through the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of the voting securities, by contract or otherwise.
“ Award ” means any grant of an Option, Restricted Share, Restricted Stock Unit, Other Share-Based Award or Other Cash-Based Award under the Plan.
“ Award Agreement ” means any written agreement, contract or other instrument or document evidencing any Award, which may, but need not (as determined by the Committee), be required to be executed or acknowledged by a Participant as a condition precedent to receiving an Award or the benefits under an Award.
“ Beneficial owner ” or “ beneficially own ” has the meaning given to such term in Rule 13d-3 under the Exchange Act.
“ Board ” means the Board of Directors of the Company.
“ Cause ” means, unless otherwise provided in any applicable Award Agreement, with respect to the termination of a Participant who is an Employee, the following: (a) in cases in which there is an employment agreement (the “ Employment Agreement ”) or an individual severance (Change in Control or otherwise) agreement in effect between the Company or any Subsidiary thereof and the Participant at the time of the grant of the Award, “cause” as defined under and during the term of the applicable severance agreement and, if there is no such agreement, the applicable employment agreement, and (b) in all other cases, termination of the Participant due to: (i) the Participant’s intentional breach (including breaches due to inaction) of one or more of a Participant’s material duties or intentional failure to follow reasonable




directions of the Participant’s supervisor, the Chief Executive Officer of the Company, or the Board, provided the Participant has not reasonably corrected such breach or failure within 30 days after receipt of written notice (including by email) from the Company, the Participant’s supervisor, the Chief Executive Officer of the Company or the Board specifying such breach or failure; provided that neither an act nor a failure to act on the part of the Participant shall be considered “intentional” if the Participant has acted or failed to act with a reasonable and good faith belief that the Participant’s action or failure to act was in the best interest of the Company; (ii) conviction of, or entering of a plea of guilty or nolo contendere to, a felony charge or a crime involving moral turpitude; (iii) engaging in a fraudulent activity with respect to the Company (whether or not prosecuted), (iv) misconduct by the Participant that has caused a material loss to the Company or any Subsidiary thereof, (v) receipt of any kickback, side payment, or rebate of any fee or expense paid by the Company or from any customer, vendor, or supplier of the Company, (vi) any act of gross negligence or any dishonesty (including misreporting of financial information) to the Company or any Subsidiary thereof; provided , however , that with regard to any agreement under which the definition of “cause” only applies on occurrence of a change in control, such definition of “cause” shall not apply until a change in control actually takes place and then only with regard to a termination thereafter. With respect to a termination of a Participant who is a non-employee director of the Board, “cause” means an act or failure to act that constitutes cause for removal of a non-employee director of the Board under applicable law.
“ Change in Control ” means (a) any merger, consolidation or business combination in which the stockholders of the Company immediately prior to the merger, consolidation or business combination do not own at least a majority of the outstanding equity interests of the surviving parent entity; (b) the sale of all or substantially all of the Company’s assets in a single transaction or a series of related transactions; (c) the acquisition of beneficial ownership or control of (including, without limitation, power to vote) a majority of the outstanding common stock of the Company by any person or entity (including a "group" as defined by or under Section 13(d)(3) of the Exchange Act); (d) the stockholders of the Company approve any plan for the dissolution or liquidation of the Company; or (e) a contested election of directors, as a result of which or in connection with which the persons who were directors of the Company before such election or their nominees cease to constitute a majority of the Company’s Board.
“ Change in Control Grant ” has the meaning set forth in ‎Section 7.02.
“ Code ” means the Internal Revenue Code of 1986, as amended, and applicable rules and regulations thereunder.
“ Committee ” means the Compensation Committee of the Board, or if no such committee has been designated, the Board.
“ Company ” has the meaning set forth in ‎Article 1.
“ Disability ” means the Participant's physical or mental incapacity to perform his or her usual duties with such condition likely to remain continuously and permanently as determined by the Company.

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“ Effective Date ” has the meaning set forth in ‎Article 1.
“ Eligible Individual ” means any officer, employee, director, independent contractor or consultant to, the Company or a Subsidiary and includes any holders of Substitute Awards (whether or not employed by the Company or a Subsidiary).
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and applicable rules and regulations thereunder.
“ Encumbrance ” means any lien, security interest, pledge, claim, option, right of first refusal, marital right or other encumbrance with respect to any Share issued in respect of any Award.
“ Exercise Price ” means the price at which a Share may be purchased by a Participant pursuant to an Option as set forth in the relevant Award Agreement.
“ Fair Market Value ” means (a) if the Shares are not listed or traded on the New York Stock Exchange, the NYSE MKT LLC or the Nasdaq Stock Market, or reported by OTC Markets Group, or any similar successor organization, the fair market value as determined by the Committee in good faith, and (b) otherwise, the average of the closing prices of all Shares (at the end of the regular session, as reported on the Consolidated Tape) on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market, as applicable, or, if there have been no sales on any such exchange on any day, the average of the highest bid and lowest asked prices on all such applicable exchanges (at the end of the regular session, as reported on the Consolidated Tape) on such day, as the Committee may determine, or the volume weighted average price in the domestic over-the-counter market as reported by OTC Markets Group, or any similar successor organization, over a 30-day period ending on of the day as of which such Fair Market Value is being determined.
“ Incentive Stock Option ” means an Option granted pursuant to ‎Section 6.01 that is intended to meet the requirements of Section 422 of the Code.
“ Involuntary Transfer ” means a transfer of a Participant’s Award or any Share issued in respect of any Award by operation of law including, without limitation, as a result of (a) a sale or other disposition by a trustee or debtor in possession appointed or retained in a bankruptcy case, (b) a sale at any creditors’ or judicial sale or (c) a transfer arising out of a divorce or separation proceeding.
“ Option ” means an option to purchase Shares granted to an Eligible Individual under the Plan.
“ Other Cash-Based Award ” means any award denominated or paid in cash, pursuant to ‎Section 6.05.
“ Other Share-Based Award ” means any award denominated in or based on Shares granted to a Participant, pursuant to ‎Section 6.04.

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“ Participant ” means an Eligible Individual who receives an Award under the Plan.
“ Permitted Transferee ” (a) with respect to any Shares issued in respect of an Award held by a Participant, shall have the meaning designated in the Stockholders Agreement and (b) with respect to any Awards held by a Participant, means any person to whom such Awards are transferred by will or the laws of descent or distribution.
“ Person ” means an partnership, joint venture, limited partnership, limited liability partnership, limited liability limited partnership, corporation, limited liability company, professional corporation, professional association, trust, estate, custodian, trustee, executor, administrator, nominee, representative, unincorporated organization, sole proprietorship, employee benefit plan, tribunal, governmental entity, department, agency, quasi-governmental entity, any other business, entity or organization, including a government or political subdivision or an agency, unit or instrumentality thereof, or any natural person (regardless of citizenship or residency).
“ Plan ” has the meaning set forth in ‎Article 1.
“ Restricted Share ” means a Share that is subject to service, performance or other conditions, granted to a Participant pursuant to ‎Section 6.02.
“ Restricted Stock Unit ” means a contractual right to receive a designated number of Shares or the Fair Market Value thereof, granted to a Participant pursuant to ‎Section 6.03.
“ Section 409A ” has the meaning assigned to it in ‎Article 16.
“ Section 457A ” has the meaning assigned to it in ‎Article 16.
“ Securities Act ” means the Securities Act of 1933, as amended, and applicable rules and regulations thereunder.
“ Share ” means a share of common stock, par value $0.01, of the Company.
“ Stockholder ” shall have the meaning designated in the Stockholders Agreement.
“ Stockholders Agreement ” means any Stockholders Agreement that may be entered into at any time by and among the Company and certain other Persons listed on the signature page of the Stockholders Agreement, as the same may be amended from time to time.
“ Subsidiary ” means (a) any company during any period in which it is a “subsidiary corporation” as that term is defined in Section 424(f) of the Code with respect to the Company, or (b) any other entity of which ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by the Company.
“ Substitute Award ” means an Award granted pursuant to ‎Article 5 in assumption of, or as an alternative to or replacement of, an outstanding award previously granted by a business or

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entity all or a portion of which is acquired by the Company or any of its Affiliates or Subsidiaries, or with which the Company or any of its Affiliates or Subsidiaries combines.
“ Unvested Award ” means, as of any date, any Award (or any portion thereof) which by its terms has not yet vested and become exercisable as of such date.
“ Vested Award ” means, as of any date, any Award (or any portion thereof) which by its terms has vested and become exercisable as of such date.
“ Warrants ” means the Company’s Series A Warrants to acquire shares of common stock of the Company, evidenced by the Global Warrant with CUSIP no. 21241B 118.
ARTICLE 3
ADMINISTRATION
Section 3.01 . Committee. The Plan shall be administered by the Committee.
Section 3.02 . Authority of the Committee. Subject to the provisions of the Plan, the Committee shall have the authority, in its discretion and on behalf of the Company:
(a)      to select from among the Eligible Individuals those persons who shall receive Awards, to determine the time or times of receipt, to determine the types of Awards and the number of Shares covered by the Awards, to establish the terms, conditions, performance criteria, restrictions and other aspects of the Awards and the provisions of the applicable Award Agreement and to modify, amend, cancel or suspend Awards;
(b)      to interpret the Plan;
(c)      to prescribe, amend and rescind any rules and regulations relating to the Plan;
(d)      to determine whether, to what extent and under what circumstances Awards may be settled in cash, Shares, other Awards or other property, including without limitation the authority to settle Awards in cash or property upon a Change in Control or other similar corporate transaction;
(e)      to determine whether, to what extent and under what circumstances cash, Shares, other Awards, other property and any other amounts payable with respect to an Award shall or may be deferred either automatically or at the election of the Participant or of the Committee;
(f)      to cancel and regrant, accelerate vesting or otherwise adjust the Exercise Price of an Award previously granted under the Plan; and
(g)      to make all other determinations and findings, including factual findings, deemed necessary or advisable for the administration of the Plan.
Section 3.03 . Committee Discretion. In exercising its authority, the Committee shall have the broadest possible discretion. Unless otherwise expressly provided in the Plan, all

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designations, determinations, interpretations and other decisions made in good faith by the Committee under or with respect to the Plan, any Award or Award Agreement shall be final, binding and conclusive on all persons.
Section 3.04 . Committee Delegation. To the extent permitted by applicable law, the Committee may delegate its authority, or specified items thereof, to one or more designated individuals or other committees of the Board.
ARTICLE 4
SHARES SUBJECT TO THE PLAN
Section 4.01 . General Limitation.
(a)      Subject to ‎Section 4.02 below, the maximum number of Shares that may be issued under the Plan is 1,201,202 Shares provided , however , that no more than 1,111,112 Shares may be made subject to Awards hereunder unless and until the per share “Fair Market Value” of a “Series A Warrant” has, on five consecutive “Trading Days”, exceeded the “Exercise Price” (each, as defined in the Warrant) of the Warrant.
(b)      To the extent any Shares covered by an Award, other than a Substitute Award, are not issued because the Award is forfeited, canceled, expires without being exercised, or the Shares are not delivered because the Award is settled in cash or used to satisfy applicable minimum tax withholding obligations or otherwise, such Shares shall not be deemed to have been issued for purposes of determining the maximum number of Shares available for issuance under the Plan.
(c)      If the Exercise Price of any Option or the Exercise Price of any Other Share-Based Award granted under the Plan, other than a Substitute Award, is satisfied by tendering Shares to the Company (by either actual delivery or by attestation), only the number of Shares issued net of the Shares tendered shall be deemed issued for purposes of determining the maximum number of Shares remaining available for issuance under the Plan.
(d)      Any Shares underlying a Substitute Award shall not be deemed to have been issued for purposes of determining the maximum number of Shares remaining available for issuance under the Plan.
Section 4.02 . Adjustments. In the event that any corporate transaction or distribution (including, without limitation, any stock split, stock dividend, extraordinary cash dividend, issuance of Shares upon exercise of the Warrants, recapitalization, reorganization, merger, consolidation, split up, spin off, repurchase, combination or exchange of Shares or other securities of the Company, but not including ordinary dividends) affects the Shares such that an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (a) the number of Shares or other securities of the Company (or number and kind of other securities or property) with respect to which Awards may be granted under ‎Section 4.01; (b) the number of Shares or other securities of the Company (or

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number and kind of other securities and property) subject to outstanding Awards; and (c) the Exercise Price or other terms and conditions of any Award or, if deemed appropriate, the Committee may make provision for a cash payment to the holder of an outstanding Award in full satisfaction of such Award as set forth in ‎Section 4.03, provided that in respect of an adjustment pursuant to this ‎Section 4.02 as a result of an issuance of Shares upon exercise of the Warrants, the Committee shall only adjust the number of Shares or other securities of the Company (or number and kind of other securities or property) with respect to which Awards may be granted under ‎‎Section 4.01.
Section 4.03 . Cancellation of Awards. For the avoidance of doubt, if an adjustment is appropriate under ‎Section 4.02, the Committee may, if deemed equitable by the Committee in light of the applicable circumstances, cause any Award granted hereunder to be canceled in consideration of a cash payment to the holder of such Award equal in value to the product of (a) the number of Shares subject to such Award, multiplied by (b) the Fair Market Value of a Share as of the date of such cancellation (less any Exercise Price or other applicable exercise, hurdle or similar price) with respect to such canceled Award, provided , for the avoidance of doubt, if the Award has an Exercise Price that exceeds the Fair Market Value of the Shares underlying the Award, the Award may be cancelled for no consideration.
Section 4.04 . Other Provisions. The grant of any Award may also be subject to such other provisions as the Committee deems appropriate (whether or not applicable to any Award granted to any other Participant).
ARTICLE 5
ELIGIBILITY AND PARTICIPATION
Subject to the terms and conditions of the Plan, the Committee shall determine and designate, from time to time, from among the Eligible Individuals those persons who will be granted one or more Awards under the Plan and thereby become Participants in the Plan. Awards may be granted on conditions specified by the Committee. Awards may be granted as alternatives to or in replacement of Awards outstanding under the Plan or any other plan or arrangement of the Company or any of its Affiliates or Subsidiaries (including a plan or arrangement of a business or entity, all or a portion of which is acquired by or combines with the Company or any of its Affiliates or Subsidiaries).
ARTICLE 6
AWARDS
Section 6.01 . Options.
(a)      General . The Committee is authorized to grant Options under the Plan, which shall be evidenced by an Award Agreement and shall contain terms and conditions not inconsistent with the following limitations and conditions.

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(b)      Exercise Price. The Exercise Price of each Option shall be established by the Committee at the time the Option is granted. Unless otherwise determined by the Committee and specified in the Award Agreement, the Exercise Price shall be the Fair Market Value of a Share on the date of grant of the Option (which shall not be less than the “fair market value” of a Share within the meaning of Section 409A).
(c)      Vesting. The vesting schedule, if any, for each grant of Options shall be set forth in the applicable Award Agreement, including the treatment of outstanding Options upon a Participant’s termination of employment or service. An Option shall be exercisable only in accordance with the terms and conditions and during such periods as may be established by the Committee in the Award Agreement or otherwise in accordance with the Plan and the Award Agreement. The Committee may, in its discretion, provide that such an Option may be exercised in whole or in part, in installments, cumulative or otherwise, for any period of time specified by the Committee or based on performance or other criteria established by the Committee.
(d)      Payment. No Shares shall be delivered pursuant to any exercise of an Option until payment in full of the Exercise Price, or adequate provision therefor (in the discretion of the Committee), is received by the Company. Such payment may be made, (i) in cash; (i) in Shares owned by the Participant or in Shares which may be received by the Participant upon exercise of the Option (in each case, the value of such Shares shall be their Fair Market Value on the date of exercise); (i) in other property acceptable to the Committee; (i) by any combination thereof or (e) by any other means which the Committee, in its sole discretion, determines to both provide legal consideration for the Shares, and to be consistent with the purposes of the Plan..
(e)      Term of Options. An Option and all rights and obligations thereunder shall expire on the date to be determined by the Committee and set forth in the applicable Award Agreement, which shall be not later than ten years from the date of grant of such Option.
(f)      Incentive Stock Options . The terms of any Incentive Stock Option granted under this Plan shall comply in all respects with the provisions of Section 422 of the Code. Subject to adjustment under ‎Section 4.02, the maximum number of Common Shares that may be issued under Incentive Stock Options under the Plan is 1,000,000.
Section 6.02. Restricted Shares.
(a)      General . The Committee is authorized to grant Restricted Shares to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee will determine:
(b)      Purchase Price . The issuance of Restricted Shares may be conditioned upon the Participant’s payment of a purchase price with respect to such Restricted Shares, as determined by the Committee.
(c)      Terms of Grant. Restricted Shares granted pursuant to the Plan will be subject to such restrictions as the Committee may impose, including service, performance or other criteria, which restrictions may lapse in each case on a specified date or dates, over any period or periods

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or on the occurrence of one or more events, as determined by the Committee. The Committee will set forth the treatment of Restricted Shares, as applicable, upon a Participant’s termination of employment or service with the Company and any of its Affiliates and Subsidiaries in the applicable Award Agreement.
(d)      Vesting. The vesting schedule for each grant of Restricted Shares shall be set forth in the applicable Award Agreement, including the treatment of outstanding Restricted Shares upon a Participant’s termination of employment or service.
(e)      Rights.     Subject to the Stockholders Agreement, if any, a Participant will have all rights of a holder of Shares as to any Restricted Shares, including the right to vote and the right to receive dividends (subject to such restrictions, including forfeiture provisions, as may be imposed by the Committee in its sole discretion), subject to the restrictions set forth in the Plan and the applicable Award Agreement.
(f)      Restricted Share Certificates.     Restricted Shares will be evidenced in such manner as the Committee may deem appropriate, including book-entry registration or issuance of one or more share certificates. Any certificate issued in respect of Restricted Shares will be registered in the name of the applicable Participant and will bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Award. The Committee may require that the certificates evidencing such Shares be held in custody by the Company until the restrictions thereon shall have lapsed and that, as a condition of any Award of Restricted Shares, the applicable Participant shall have delivered a stock power, endorsed in blank, relating to the Shares covered by such Award.
(g)      Section 83(b) Election. An Award of Restricted Shares may be conditioned upon a Participant’s making an election with respect to the Award under Section 83(b) of the Code, in which case the Participant will be required to file promptly a copy of such election with the Company or otherwise forfeit such Award.
Section 6.03 . Restricted Stock Units.
(a)      General . The Committee is authorized to grant Restricted Stock Units to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee will determine:
(b)      Terms of Grant. Restricted Stock Units granted pursuant to the Plan will be subject to such restrictions as the Committee may impose, including service, performance or other criteria, which restrictions may lapse in each case on a specified date or dates, over any period or periods or on the occurrence of one or more events, as determined by the Committee. The Committee will set forth the treatment of Restricted Stock Units, as applicable, upon a Participant’s termination of employment or service with the Company and any of its Affiliates and Subsidiaries in the applicable Award Agreement.

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(c)      Vesting. The vesting schedule, if any, for each grant of Restricted Stock Units shall be set forth in the applicable Award Agreement, including the treatment of outstanding Restricted Stock Units upon a Participant’s termination of employment or service.
(d)      Settlement. Restricted Stock Units may be settled in Shares, in cash, or a combination thereof, as determined by the Committee and set forth in the applicable Award Agreement. The Award Agreement shall also specify the settlement date of any such Award.
(e)      Rights.     Restricted Stock Units shall have no voting rights, and shall not receive dividends, but the applicable Award Agreement shall specify the effect, if any, of dividends paid on Shares during the period such Award is outstanding.
Section 6.04 . Other Share-Based Awards. The Committee is authorized to grant unrestricted Shares or Other Share-Based Awards under the Plan to Participants, alone or in tandem with other Awards, in such amounts and subject to such terms and conditions, including vesting schedules or other criteria, including performance criteria, as the Committee will from time to time in its sole discretion determine.
Section 6.05. Other Cash-Based Awards. The Committee is authorized to grant Awards denominated or payable in cash under the Plan to Participants, alone or in tandem with other Awards (other than Options), in such amounts and subject to such terms and conditions, including vesting schedules or other criteria, including performance criteria, as the Committee will from time to time in its sole discretion determine.
Section 6.06 . Settlement of Award. Shares delivered pursuant to the exercise of an Option or the exercise or vesting and settlement of Restricted Shares, Restricted Stock Units, Other Share-Based Awards and Other Cash-Based Awards shall be subject to such conditions (other than vesting conditions), restrictions and contingencies as the Committee may establish pursuant to the Plan and Award Agreement, in addition to the conditions set forth herein.
Section 6.07 . Amendment to Awards. The Committee may waive any conditions or rights under any Award theretofore granted, prospectively or retroactively.
Section 6.08 . Other Provisions. The grant of any Award may also be subject to such other provisions as the Committee deems appropriate (whether or not applicable to any Award granted to any other Participant), including the treatment of Awards and Shares upon the occurrence of any corporate transaction or distribution involving the Company, including any merger, reorganization, recapitalization or other similar corporate event.
ARTICLE 7
CHANGE IN CONTROL
Section 7.01 .     Committee Actions on a Change in Control . In the event of a Change in Control, the Committee will have full discretion, subject to any applicable regulatory approvals, to take whatever actions that it deems necessary or appropriate with respect to outstanding Awards, including: (a) to provide for full or partial accelerated vesting of any Award or portion

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thereof, either immediately prior to such Change in Control or on such terms and conditions following the Change in Control as the Committee may determine in its sole discretion; (b) to provide for the assumption of an Award (or portions thereof) or the issuance of Substitute Awards with similar awards of the surviving or acquiring company (subject to Section 409A, where applicable); (c) to provide for the cash-out and cancellation of any Award (or portion thereof) immediately prior to such Change in Control, which cash-out may (subject to Section 409A, where applicable) be subject to any escrow, earn-out or other contingent or deferred payment arrangement that is contemplated by such Change in Control, provided , for the avoidance of doubt, if the Award has an Exercise Price that exceeds the Fair Market Value of the Shares underlying the Award, the Award may be cancelled for no consideration; or (d) to take any other actions as the Committee deems necessary or advisable in connection with such Change in Control. The Committee may, in connection with a Change of Control, take different actions with respect to different Participants under the Plan, different Awards under the Plan and different portions of Awards granted under the Plan.
Section 7.02. Change in Control Grants . Immediately prior to a Change in Control, the number of Shares authorized to be granted pursuant to ‎Section 4.01(a) of this Plan, but which have not yet been granted or have been granted and subsequently become available for grant pursuant to ‎Section 4.01(b) of this Plan (the “ CIC Pool ”), shall be allocated to Participants as described in this ‎Section 7.02 (“ Change in Control Grants ”). The Change in Control Grants shall be allocated (i) only to Participants who remain employed by the Company on the date such Change in Control Grants are made and (ii) in an amount for each Participant determined by multiplying the CIC Pool by a fraction, the numerator of which is the number of Shares subject to Awards previously granted to such Participant under the Plan and the denominator of which is the applicable number of Shares set forth in Section 4.01(a). Change in Control Grants will be granted on a fully vested basis immediately prior to a Change in Control in the form of cash, Shares or Restricted Stock Units or a combination thereof, as determined by the Committee in its sole discretion.
ARTICLE 8
TAX WITHHOLDING
Section 8.01 . Tax Withholding. All distributions under the Plan are subject to minimum tax withholding obligations, and the Committee may condition the delivery of Shares or other benefits upon satisfaction of all applicable withholding requirements. The Committee, in its sole discretion and subject to such requirements as it may prescribe, may permit such withholding obligations to be satisfied through any combination of the following: (a) cash payment by the Participant; (b) payroll withholding of the Participant’s salary, wages or other compensation; (c) surrender of Shares which the Participant already owns (either by actual surrender or attestation); or (d) surrender of Shares or other benefits to which the Participant is otherwise entitled ( e.g. , upon exercise of an Option) under the terms of the Plan.
Section 8.02. Shares Not Publicly Traded. Notwithstanding anything to the contrary in Section 8.01, in the event the Shares are not listed for trading on an established national securities exchange on the date an Award is required to be settled, then the Company shall, at the

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request of the Employee, deduct or withhold Shares having a Fair Market Value equal to the amount required to be withheld to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Employee’s FICA and SDI obligations) to the maximum extent permitted by the accounting rules applicable to the Company as then in effect without increasing the amount of compensation expense or other adverse accounting treatment, and with respect to which the Company, in its sole discretion, deems necessary to comply with the Code and/or any other applicable law, rule or regulation with respect to such Award,
ARTICLE 9
TRANSFERABILITY
Section 9.01 . Transferability of Awards. Except as otherwise expressly provided in an Award Agreement or ‎Section 9.04, no Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant other than by will or by the laws of descent and distribution. An Option (or Other Share-Based Award subject to exercise) may be exercised during the lifetime of the Participant only by him or her or by his or her legal representative.
Section 9.02 . Transferability of Shares. Except as otherwise expressly provided in an Award Agreement or the Stockholders Agreement, if any, Shares issued in respect of an Award may not be anticipated, assigned, attached, garnished, optioned, transferred or made subject to any creditor’s process, whether voluntarily, involuntarily or by operation of law.
Section 9.03.     Transferability of Restricted Shares. Except as otherwise expressly provided in an Award Agreement or the Stockholders Agreement, if any, Restricted Shares or other Shares issued in connection with any Award may not be anticipated, assigned, attached, garnished, optioned, transferred or made subject to any creditor’s process, whether voluntarily, involuntarily or by operation of law.
Section 9.04.     Permitted Transfers. Notwithstanding the foregoing, a Participant may transfer an Award or any Shares issued with respect to an Award to a Permitted Transferee with the prior written consent of the Committee; provided that (a) the Permitted Transferee agrees to be bound by the terms of the Plan and the applicable Award Agreement and (b) the provisions of the Plan and the Award Agreement with respect to any Award or Shares so transferred will continue to apply as though the Award or Shares were still held by the applicable Participant.
ARTICLE 10
LIMITATION ON IMPLIED RIGHTS
Section 10.01 . Property Rights. Neither a Participant nor any other Person shall, by reason of participation in the Plan, acquire any right in or title to any assets, funds or property of the Company or any of its Affiliates or Subsidiaries whatsoever including without limitation, any specific funds, assets or other property which the Company or any of its Affiliates or Subsidiaries, in its or their sole discretion, may set aside in anticipation of a liability under the Plan. Subject to the terms of the Plan, a Participant shall have only a contractual right to the

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Shares or amounts, if any, payable under the Plan, unsecured by any assets of the Company or any of its Affiliates or Subsidiaries, and nothing contained in the Plan shall constitute a representation or guarantee that the assets of the Company or any of its Affiliate or Subsidiaries shall be sufficient to pay any benefits to any Person.
Section 10.02 . Employment Rights. Nothing in this Plan nor in any Award Agreement shall confer upon any Participant any promise or commitment by the Company or its Affiliates or Subsidiaries regarding employment, employment positions, work assignments, compensation or any other term or condition of employment or affiliation.
Section 10.03 . No Implied Rights or Obligations. The Company, in establishing and maintaining this Plan as a voluntary and unilateral undertaking, expressly disavows the creation of any rights in Participants or others claiming entitlement under the Plan or any obligations on the part of the Company, any of its Affiliates or Subsidiaries or the Committee, except as expressly provided herein. No Award shall be deemed to be salary or compensation for the purposes of computing benefits under any employee benefit, severance, pension or retirement plan of the Company or any of its Affiliates or Subsidiaries, unless the Committee shall determine otherwise, applicable local law provides otherwise or the terms of such plan specifically include such compensation.
Section 10.04 . No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Affiliates or Subsidiaries and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any of its Affiliates or Subsidiaries pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company.
Section 10.05 . Rights as a Stockholder. Subject to ‎Section 6.02(e), no Participant or holder of any Award shall have any rights as a Stockholder with respect to any Shares underlying such Award until the Award has been exercised or settled, and the Participant or holder has been issued Shares in accordance with the terms of the Plan.
Section 10.06 . Additional Conditions of Awards. The Committee may specify in an Award Agreement that the Participant’s rights, payments and benefits with respect to an Award will be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include a termination of the Participant’s employment or service with the Company and any of its Affiliates and Subsidiaries, a violation of material policies, breach of noncompetition, confidentiality or other restrictive covenants that may apply to the Participant or other conduct by the Participant that is detrimental to the business or reputation of the Company and/or its Affiliates and/or Subsidiaries.
Section 10.07 . No Fractional Shares. No fractional Shares will be issued or delivered pursuant to the Plan or any Award, and the Committee will determine whether cash or other securities will be paid or transferred in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto will be canceled, terminated or otherwise eliminated.

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Section 10.08. Variations by Jurisdiction. Awards may be granted to Participants in different legal jurisdictions on such terms and conditions as may, in the judgment of the Committee, be necessary or desirable to recognize differences in local law, tax policy or custom. The Committee also may impose conditions on the exercise or vesting of Awards in order to minimize the Company’s obligation with respect to tax equalization for Participants on assignments outside their home country.
Section 10.09. Data Protection. By participating in the Plan, the Participant consents to the holding and processing of personal information provided by the Participant to the Company or its Affiliates or Subsidiaries, trustee or third-party service provider, for all purposes relating to the operation of the Plan. These include:
(a)      administering and maintaining Participant records;
(b)      providing information to the Company or its Affiliates or Subsidiaries, trustees of any employee benefit trust, registrars, brokers or third-party administrators of the Plan;
(c)      providing information to future purchasers or other transaction counterparties of the Company or its Affiliates or Subsidiaries, or the business in which the Participant works; and
(d)      transferring information about the Participant to any country or territory that may not provide the same protection for the information as the Participant’s home country.
ARTICLE 11
GOVERNMENT AND STOCK EXCHANGE REGULATIONS
The Committee may refuse to issue or transfer any Shares or other consideration under an Award if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such other consideration violate any applicable law or regulation or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder or beneficiary. Without limiting the generality of the foregoing, no Award granted hereunder shall be construed as an offer to sell securities of the Company, and no such offer shall be outstanding, unless and until the Committee in its sole discretion has determined that any such offer, if made, would be in compliance with all applicable requirements of the U.S. federal and state securities laws and any other laws to which such offer, if made, would be subject.
Upon the issuance of Shares in connection with the settlement award, vesting, exercise or settlement of an Award at a time when there is not in effect a registration statement under the Securities Act relating to such Shares and available for delivery a prospectus meeting the requirements of Section 10(a)(3) of the Securities Act, or if the rules or interpretations of the Securities and Exchange Commission so require, such Shares may be issued only if the Company and the holder of such Shares are in material compliance with all securities law requirements for an exemption from registration and the holder represents and warrants in writing to the Company that the Shares purchased are being acquired for investment and not with

14



a view to distribution thereof. Shares issued hereunder may, as the Committee may determine, bear an appropriate legend referring to any restriction applicable to such shares.
The Company is under no duty to ensure that Shares may legally be delivered under the Plan, and shall have no liability to Award recipients in the event such delivery of Shares may not be made.
ARTICLE 12
AMENDMENTS, SUSPENSIONS OR TERMINATION OF PLAN
Section 12.01. Amendment and Termination of the Plan . The Board may at any time suspend or terminate the Plan and may amend it from time to time in such respects as the Board may deem advisable in order that Awards granted thereunder shall conform to any change in the law, or in any other respect which the Board may deem to be in the best interests of the Company; provided, however, that no such amendment, alteration, suspension, discontinuation or termination shall be made without approval by the stockholders of the Company if such approval is necessary to comply with any tax or regulatory requirement for which or with which the Board deems it necessary or desirable to qualify or comply. Notwithstanding the foregoing, ‎Section 7.02 and the other provisions of the Plan relevant for determining the number of Shares that will be eligible to be granted pursuant to ‎Section 7.02 may not be amended to reduce the benefits provided thereby and will not be adversely affected by a termination of the Plan before its original expiration date specified in ‎Article 13.
Section 12.02. Amendment of Award Agreements . The Committee may, to the extent consistent with the terms of any applicable Award Agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively; provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would adversely impair the rights of any Participant or any holder of any Award theretofore granted will not to that extent be effective without the consent of the affected Participant or holder.
Section 12.03. Corrections. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent that it shall deem desirable to carry the Plan into effect.
ARTICLE 13
TERMINATION
The Plan shall continue in effect until the tenth anniversary of the Effective Date, unless earlier terminated by the Board pursuant to ‎Article 12.
ARTICLE 14
GOVERNING LAW; WAIVER OF JURY TRIAL

15



The validity, construction and effect of the Plan, the Award Agreements and any rules, regulations or procedures relating thereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflicts of laws rules of such state. Participants acknowledge and agree that any controversy which may arise under or relate to the Plan or an Award Agreement is likely to involve complicated and difficult issues, and the Company and each Participant will agree to irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or relating to the Plan or an Award Agreement, or the transactions and matters contemplated hereby or thereby.
ARTICLE 15
ARBITRATION OF DISPUTES
Any controversy arising out of or relating to the Plan or an Award Agreement shall be resolved by arbitration conducted pursuant to the arbitration rules of the American Arbitration Association. The arbitration shall be final and binding on the parties. The arbitration shall be conducted in the Commonwealth of Virginia.
ARTICLE 16
SECTION 409A AND SECTION 457A OF THE CODE
The Plan is intended to comply with the requirements of Section 409A and Section 457A of the Code and the regulations and guidance thereunder (respectively, “ Section 409A ” and “ Section 457A ”), the provisions of the Plan shall be interpreted in a manner that satisfies such requirements, and the Plan shall be operated accordingly. If any provision of the Plan would otherwise frustrate or conflict with this intent, the provision will be interpreted and deemed amended so as to avoid this conflict. If an operational failure occurs with respect to the requirements of Section 409A and Section 457A, any affected Participant shall fully cooperate with the Company to correct the failure, to the extent possible, in accordance with any correction procedure established by the Internal Revenue Service. No provision of the Plan shall be interpreted to transfer any liability for a failure to comply with Section 409A or Section 457A from a Participant or any other Person to the Company.
Notwithstanding any provision of the Plan or any Award Agreement, if at the time of termination of a Participant’s employment or service with the Company he or she is a “specified employee” (as defined in Section 409A) and any payments upon such termination under the Plan or such Award Agreement are treated as deferred compensation subject to Section 409A, he or she will not be entitled to such payments until the earlier of (a) the date that is six months after such termination or (b) any earlier date that does not result in any additional tax or interest to such Participant under Section 409A. For purposes of Section 409A, any payment or settlement of an Award made under the Plan shall be designated as a “separate payment” within the meaning of Section 409A.

16

Exhibit 10.37

AMENDMENT NO. 1 TO CONTURA ENERGY, INC.
MANAGEMENT INCENTIVE PLAN
 
THIS AMENDMENT NO. 1 (this “ Amendment ”), is dated as of January 18, 2017 (the “ Effective Date ”) and amends that certain Management Incentive Plan (the “ Plan ”) of Contura Energy, Inc. (the “ Company ”) effective as of July 26, 2016. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Plan.
 
RECITALS
 
WHEREAS , the Board previously adopted the Plan; and
 
WHEREAS , Board deems it in the best interest of the Company to amend the Plan as set forth herein, effective as of the Effective Date.

NOW, THEREFORE , the Board hereby amends the Plan as follows:
     
1.    A new Section 7.03 is hereby added as follows:

“Section 7.03 Initial Public Offering . Notwithstanding anything to the contrary contained herein, on the date immediately prior to the date on which the Company initially sells its common stock in a bona fide, firm commitment underwriting pursuant to a registration statement under the Securities Act (the “ IPO ”), but contingent upon the consummation of the IPO, all then-outstanding Awards shall immediately vest and the Company shall make the Change in Control Grants in accordance with Section 7.02 hereof. For the sake of clarity, the occurrence of an IPO will be considered to be a Change in Control for purposes of Section 7.02.”
2.    This Amendment shall only serve to amend and modify the Plan to the extent specifically provided herein. All terms, conditions, provisions and references of and to the Plan which are not specifically modified, amended and/or waived herein shall remain in full force and effect and shall not be altered by any provisions herein contained. All prior agreements, promises, negotiations and representations, either oral or written, relating to the subject matter of this Amendment not expressly set forth in this Amendment are of no force or effect.




    
Exhibit 10.38

Contura Energy, Inc.
OPTION AGREEMENT
This Option Agreement is entered into by and between Contura Energy, Inc. (the “ Company ”) and the individual whose name appears below (the “ Employee ”) in order to set forth the terms and conditions of Options granted to the Employee under the Contura Energy, Inc. Management Incentive Plan (the “ Plan ”). The Options are NOT intended to qualify as “incentive stock options” under Section 422 of the Code and therefore shall be treated as “non-qualified stock options”.
Employee’s Name:
Address:
 
 
 
 
 
Vesting Schedule
Option Type
Date of Grant
Expiration Date
Number of Shares
Exercise Price Per Share
Date
Shares
Non-qualified Stock Options

March [●], 2017

(1)
[●]
$[●]
March [●], 2018
March [●], 2019
March [●], 2020
[33.3%]
[33.3%]
[33.4%]
(1)    10 year anniversary of Date of Grant.

Subject to the attached Terms and Conditions and the terms of the Plan, which are incorporated herein by reference, the Company hereby grants to the Employee, effective on the Date of Grant, the Options as outlined above. Capitalized terms used but not otherwise defined herein or in the attached Terms and Conditions shall have the meanings ascribed to such terms in the Plan.
The Company and the Employee have executed this Agreement.
CONTURA ENERGY, INC.
 
EMPLOYEE:
By:
 
 
 
 
Name:
Title:
 
 
 


1




PLEASE RETURN ONE SIGNED COPY OF THIS AGREEMENT TO:

Contura Energy, Inc.
300 Martin Luther King Jr., Blvd.
Suite 500
PO Box 848
Bristol, TN 37620
Attn: General Counsel



2



Contura Energy, Inc.
CONTURA ENERGY, INC. MANAGEMENT INCENTIVE PLAN
Terms and Conditions of Options
1.
VESTING AND EXERCISE OF OPTIONS . The Employee may exercise one or more of the Options granted in the Option Agreement, to the extent then vested according to the vesting schedule set forth above, by giving written notice on a form provided by the Company specifying the number of Options being exercised and the exercise date and by tendering payment for the Shares being purchased under the Options. The Options shall expire on the expiration date set forth above (the “ Expiration Date ”), unless terminated earlier as provided below.
2.
EXERCISE PRICE . The Exercise Price per Share of the Options shall be as set forth above.
3.
ACCELERATED VESTING . The Options shall become fully vested and exercisable upon a Change in Control, which shall include an IPO, subject to the Employee’s continuous employment with the Company through such date.
4.
PAYMENT FOR SHARES . Payment for the Shares issuable upon exercise of an Option shall be made in full in cash or by certified check. The Employee may exercise the Option through a cashless exercise procedure pursuant to Section 6.01(d) of the Plan. Any payment for Shares must include such additional amounts as may be required by the Company to satisfy Federal, state and local withholding tax requirements, subject to Section 8.02 of the Plan.
5.
EXERCISE . As soon as reasonably practicable following the exercise of an Option and the receipt by the Company of payment for the Shares and applicable withholding taxes, a certificate (or such other form as determined by the Company) representing the Shares purchased, registered in the name of the Employee, shall be delivered to the Employee; provided that in lieu thereof, the Company shall have the right, but not the obligation, to pay to the Employee a cash amount per Share exercised equal to the fair market value of a share of Common Stock on the date of such exercise (as determined by the Committee) less the Exercise Price.
The following legend may be included on any Shares purchased by the Employee hereunder:
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION PROVIDED BY RULE 701 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANOTHER EXEMPTION THEREUNDER. THEY MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREOF.”
6.
TERMINATION OF EMPLOYMENT . Upon termination of the Employee’s employment with the Company, the Employee shall be entitled to exercise the Options, only to the extent vested and exercisable on the date of the Employee’s termination (or to the extent such Options become vested pursuant to the terms of Employee’s employment agreement or in the

1




Company’s Key Employee Separation Plan if applicable to Employee), at any time within the three (3) month period, or such longer period as may be provided in Employee’s employment agreement or in the Company’s Key Employee Separation Plan if applicable to Employee, immediately following the date of the Employee’s termination of employment, but in all cases, not later than the Expiration Date. Any Options that are not vested upon termination of employment, and that do not become vested pursuant to the terms of Employee’s employment agreement or in the Company’s Key Employee Separation Plan if applicable to Employee, shall terminate.
7.
SECURITIES REPRESENTATIONS . Upon the exercise of the Option prior to the registration of the Shares to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Employee shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be reasonably requested by the Company for compliance with applicable laws, and any issuances of Shares by the Company hereunder shall be made in reliance upon the express representations and warranties of the Employee:
(a)
The Employee is acquiring and will hold the Shares to be issued hereunder for investment for the Employee’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.
(b)
The Employee has been advised that the Shares to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Shares is to be effected (it being understood, however, that such Shares are being issued and sold in reliance on the exemption provided under Rule 701 under the Securities Act or another exemption thereunder), and that such Shares must be held indefinitely, unless they are subsequently registered under the applicable securities laws or the Employee obtains an opinion of counsel (in the form and substance reasonably satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Employee’s representations set forth in this Section 7. The Employee further acknowledges and understands that the Company is under no obligation hereunder to register the Shares to be issued hereunder.
(c)
The Employee is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Employee acknowledges that the Employee is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.
(d)
The Employee has been furnished with, and has had access to, such information as the Employee considers necessary or appropriate for deciding whether to invest in the Shares to be issued hereunder, and the Employee has had an opportunity to ask questions and

2



receive answers from the Company regarding the terms and conditions of the issuance of such Shares.
(e)
The Employee is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Employee is able, without impairing the Employee’s financial condition, to hold the Shares to be issued hereunder for an indefinite period and to suffer a complete loss of the Employee’s investment in such Shares.
8.
NONTRANSFERABILITY . Options granted under the Plan may not be transferred, assigned pledged or hypothecated (whether by operation of law or otherwise), except as provided by will or the applicable laws of descent and distribution.
9.
MISCELLANEOUS .
(a)
Definitions . Terms used in this Agreement which are defined in the Plan shall have the respective meanings set forth in the Plan.
(b)
Tag Along Rights. For the avoidance of doubt, the Employee shall have the same tag along rights with respect to Shares acquired pursuant to exercise of the Option on the same terms and conditions as are then applicable to other Company stockholders pursuant to any stockholders agreement or any similar agreement, if any, as may be in effect from time to time; provided that the Employee will not be required to agree to be subject to restrictive covenants that are more burdensome than those included in the Employee’s Employment Agreement, if applicable. If the other Company stockholders do not include the Employee in any transaction in which such rights would apply, the Company shall, subject to applicable law, offer to purchase such Shares for cash at the purchase price paid in such transaction.
(c)
No Right To Employment . This Agreement shall not confer upon the Employee any right to continue in the employ of the Company or any subsidiary or to be entitled to any remuneration or benefits not set forth in this Agreement or the Plan nor interfere with or limit the right of the Company or any subsidiary to modify the terms of or terminate the Employee’s employment at any time.
(d)
Notice . Any notice or other communication required or permitted to be given under this Agreement must be given by personal delivery or by registered or certified mail, return receipt requested and addressed, if to the Committee or the Company, at the principal office of the Company and, if to the Employee, at the Employee’s last known address as set forth in the books and records of the Company.
(e)
Plan to Govern . This Agreement and the rights of the Employee hereunder are subject to all of the terms and conditions of the Plan as the same may be amended from time to time, as well as to such rules and regulations as the Committee may adopt for the administration of the Plan.
(f)
Amendment . Subject to restrictions set forth in the Plan, the Company may from time to time suspend, modify or amend this Agreement. No suspension, modification or

3



amendment of this Agreement may, without the consent of the Employee, adversely affect the rights of the Employee with respect to the Options granted pursuant to this Agreement.
(g)
Severability . In the event that any provision of this Agreement shall he held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of this Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.
(h)
Entire Agreement . This Agreement and the Plan contain all of the understandings between the Company and the Employee concerning the Options granted hereunder and supersede all prior agreements and understandings, except any applicable provisions in Employee’s employment agreement or in the Company’s Key Employee Separation Plan if applicable to Employee.
(i)
Counterparts . This Agreement may be executed in counterparts, each of which when signed by the Company and the Employee will be an original and all of which together will be the same Agreement.
(j)
Governing Law . To the extent not preempted by Federal law, this Agreement shall be construed in accordance with and governed by the laws of the State of Delaware.

4

Exhibit 10.39

Contura Energy, Inc.
RESTRICTED SHARE AGREEMENT
This Restricted Share Agreement (the “ Agreement ”) is entered into by and between Contura Energy, Inc. (the “ Company ”) and the individual whose name appears below (the “ Employee ”) in order to set forth the terms and conditions of Restricted Shares granted to the Employee under the Contura Energy, Inc. Management Incentive Plan (the “ Plan ”).
Employee’s Name:
Address:
 
 
 
 
 
 
 
Award Type
 
Date of Grant
 
Number of Shares
 
Vesting Schedule
Restricted Shares

 
March [●], 2017

 
[●]
 
March [●], 2018: 33.3%
March [●], 2019: 33.3%
March [●], 2020: 33.4%

Subject to the attached Terms and Conditions and the terms of the Plan, which are incorporated herein by reference, the Company hereby grants to the Employee, effective on the Date of Grant, the Restricted Shares as outlined above. Capitalized terms used but not otherwise defined herein or in the attached Terms and Conditions shall have the meanings ascribed to such terms in the Plan.
The Company and the Employee have executed this Agreement.
CONTURA ENERGY, INC.
 
EMPLOYEE:
By:
 
 
 
 
Name:
Title:
 
 
 

PLEASE RETURN ONE SIGNED COPY OF THIS AGREEMENT TO:

Contura Energy, Inc.
300 Martin Luther King Jr., Blvd.
Suite 500
PO Box 848
Bristol, TN 37620
Attn: General Counsel

1



Contura Energy, Inc.
CONTURA ENERGY, INC. MANAGEMENT INCENTIVE PLAN
Terms and Conditions of Restricted Shares Grant
1.
GRANT OF RESTRICTED SHARES . The Company hereby grants to the Employee, as of the Date of Grant set forth above, the number of Restricted Shares specified above.

2.
VESTING . The Restricted Shares shall vest and become non-forfeitable on the vesting schedule set forth above, subject to the Employee’s continuous employment with the Company through the applicable date, and all unvested Restricted Shares shall be immediately forfeited to the Company upon the Employee’s termination of employment with the Company for any reason, in each case except as otherwise provided in Employee’s employment agreement or in the Company’s Key Employee Separation Plan if applicable to Employee.

Unless otherwise determined by the Company, upon vesting of any Restricted Shares, the Company shall deduct or withhold Shares having a fair market value equal to the amount required to be withheld to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Employee’s FICA and SDI obligations) to the maximum extent permitted by the accounting rules applicable to the Company as then in effect without increasing the amount of compensation expense or other adverse accounting treatment, and with respect to which the Company, in its sole discretion, deems necessary to comply with the Code and/or any other applicable law, rule or regulation.

3.
ACCELERATED VESTING . The Restricted Shares shall fully vest upon a Change in Control, which shall include an IPO, subject to the Employee’s continuous employment with the Company through such date.

4.
STOCKHOLDER RIGHTS . Subject to the terms of the Plan and any applicable Stockholders Agreement, the Employee shall have voting and, unless otherwise determined by the Committee at any time, dividend rights with respect to the Restricted Shares.

5.
ISSUANCE OF CERTIFICATES . The Restricted Shares may be evidenced in such manner as the Committee shall determine. The Company may, in its sole discretion, (a) retain physical possession of any stock certificate evidencing shares of Restricted Shares until the restrictions thereon shall have lapsed and/or (b) require that the stock certificates evidencing shares of Restricted Shares be held in custody by a designated escrow agent (which may but need not be the Company) until the restrictions thereon shall have lapsed and that the holder deliver a stock power, endorsed in blank, relating to such Restricted Shares. The following legend may be included on such Shares:


2



“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION PROVIDED BY RULE 701 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANOTHER EXEMPTION THEREUNDER. THEY MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREOF.”

6.
SECURITIES REPRESENTATIONS . The Employee shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be reasonably requested by the Company for compliance with applicable laws, and any issuances of Shares by the Company hereunder shall be made in reliance upon the express representations and warranties of the Employee:

(a)
The Employee is acquiring and will hold the Shares to be issued hereunder for investment for the Employee’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.

(b)
The Employee has been advised that the Shares to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Shares is to be effected (it being understood, however, that such Shares are being issued and sold in reliance on the exemption provided under Rule 701 under the Securities Act or another exemption thereunder), and that such Shares must be held indefinitely, unless they are subsequently registered under the applicable securities laws or the Employee obtains an opinion of counsel (in form and substance reasonably satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Employee’s representations set forth in this Section ‎6. The Employee further acknowledges and understands that the Company is under no obligation hereunder to register the Shares to be issued hereunder.

(c)
The Employee is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Employee acknowledges that the Employee is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.


3



(d)
The Employee has been furnished with, and has had access to, such information as the Employee considers necessary or appropriate for deciding whether to invest in the Shares to be issued hereunder, and the Employee has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Shares.

(e)
The Employee is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Employee is able, without impairing the Employee’s financial condition, to hold the Shares to be issued hereunder for an indefinite period and to suffer a complete loss of the Employee’s investment in such Shares.

7.
NON-TRANSFERABILITY . Restricted Shares granted under the Plan may not be transferred, assigned pledged or hypothecated (whether by operation of law or otherwise), except as provided by will or the applicable laws of descent and distribution, unless and until the Restricted Shares become vested in accordance with this Agreement, other than to the Company as a result of forfeiture of the Restricted Shares as provided herein.

8.
MISCELLANEOUS .

(a)
Definitions . Terms used in this Agreement which are defined in the Plan shall have the respective meanings set forth in the Plan.

(b)
Tag Along Rights. For the avoidance of doubt, the Employee shall have the same tag along rights with respect to Shares acquired hereunder on the same terms and conditions as are then applicable to other Company stockholders pursuant to any stockholders agreement or any similar agreement, if any, as may be in effect from time to time; provided that the Employee will not be required to agree to be subject to restrictive covenants that are more burdensome than those included in the Employee’s Employment Agreement, if applicable. If the other Company stockholders do not include the Employee in any transaction in which such rights would apply, the Company shall, subject to applicable law, offer to purchase such Shares for cash at the purchase price paid in such transaction.

(c)
No Right To Employment . This Agreement shall not confer upon the Employee any right to continue in the employ of the Company or any subsidiary or to be entitled to any remuneration or benefits not set forth in this Agreement or the Plan nor interfere with or limit the right of the Company or any subsidiary to modify the terms of or terminate the Employee’s employment at any time.


4



(d)
Notice . Any notice or other communication required or permitted to be given under this Agreement must be given by personal delivery or by registered or certified mail, return receipt requested and addressed, if to the Committee or the Company, at the principal office of the Company and, if to the Employee, at the Employee’s last known address as set forth in the books and records of the Company.

(e)
Plan to Govern . This Agreement and the rights of the Employee hereunder are subject to all of the terms and conditions of the Plan as the same may be amended from time to time, as well as to such rules and regulations as the Committee may adopt for the administration of the Plan.

(f)
Amendment . Subject to restrictions set forth in the Plan, the Company may from time to time suspend, modify or amend this Agreement. No suspension, modification or amendment of this Agreement may, without the consent of the Employee, adversely affect the rights of the Employee with respect to the Restricted Shares granted pursuant to this Agreement.

(g)
Severability . In the event that any provision of this Agreement shall he held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of this Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.

(h)
Entire Agreement . This Agreement and the Plan contain all of the understandings between the Company and the Employee concerning the Restricted Shares granted hereunder and supersede all prior agreements and understandings, except any applicable provisions in Employee’s employment agreement or in the Company’s Key Employee Separation Plan if applicable to Employee.

(i)
Counterparts . This Agreement may be executed in counterparts, each of which when signed by the Company and the Employee will be an original and all of which together will be the same Agreement.

(j)
Governing Law . To the extent not preempted by Federal law, this Agreement shall be construed in accordance with and governed by the laws of the State of Delaware.

5

Exhibit 10.40

EX1022FORMOFCONT_IMAGE1A02.JPG
Contura Energy, Inc.
EMERGENCE AWARD AGREEMENT
This Emergence Award Agreement is entered into by and between Contura Energy, Inc. (the “Company”) and the Employee of the Company whose name appears below (the “Employee”) in order to set forth the terms and conditions of shares of common stock of the Company (“Shares”) and Options granted to the Employee under the Contura Energy, Inc. Management Incentive Plan (the “Plan”). To the extent permissible under applicable law, this Option is intended to qualify as an “incentive stock option” under Section 422 of the Code, and otherwise shall be treated as a “non-qualified stock option.”
[Full Name]:
[Employee Number]:
 
 
 
 
 
 
 
Vesting Schedule
 
 
 
 
Share Type
 
Date of Grant
 
Number of Shares
 
Date
 
Shares
 
 
 
 
Common stock of the Company
 
July 26, 2016
 
[RSS]
 
100% vested
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Vesting Schedule
Option Type
 
Date of Grant
 
Expiration Date
 
Number of Shares
 
Option Price
 
Date
 
Shares
Incentive Stock Options – Fixed Price (the “Fixed Price Option”)
 
July 26, 2016
 
(1)
 
[Option1]
 
$2.50
 
100% vested
 
 
 
 
 
 
 
 
 
 
Vesting Schedule
Option Type
 
Date of Grant
 
Expiration Date
 
Number of Shares
 
Option Price
 
Date
 
Shares
Incentive Stock Options – VWAP Price (the “VWAP Price Option”)
 
July 26, 2016
 
(1)
 
[Option2]
 
(2)
 
100% vested
Subject to the attached Terms and Conditions and the terms of the Plan, which are incorporated herein by reference, the Company hereby grants to the Employee Shares and Options to purchase Shares, as outlined above.
The Company and the Employee have executed this Agreement as of the Date of Grant set forth above.
CONTURA ENERGY, INC.
 
EMPLOYEE
 
 
 
By:
 
 
 
 
Name:
 
 
 
Title:
 
 


    


PLEASE RETURN ONE SIGNED COPY OF THIS AGREEMENT TO:
Contura Energy, Inc.
300 Martin Luther King Jr., Blvd.
Suite 500
P.O. Box 848
Bristol, TN 37621
Attn: Burke Vander Lind

(1) 10 year anniversary of Grant Date.
(2) Corporate action to grant the Option will occur at emergence on 7/26/16, and the VWAP Price Option will be priced on the 30th day of the VWAP period, which will be the 409A grant date. See section (3).


2


Contura Energy, Inc.
CONTURA ENERGY, INC. MANAGEMENT INCENTIVE PLAN
Terms and Conditions of Emergence Award Grant
1.
TRANSFER OF SHARES . Subject to the Participant satisfying the Participant’s withholding obligations pursuant to Section 10.8 of the Plan, the Company hereby transfers [Total] fully vested Shares to the Participant.
2.
EXERCISE OF OPTIONS . The Employee may exercise one or more of the Options granted in the Stock Option Agreement to the extent exercisable, by giving written notice on a form provided by the Committee specifying the number of Options being exercised and the exercise date and by tendering payment for the Shares being purchased under the Options. The Options shall expire on the expiration date set forth above (the “Expiration Date”).
3.
EXERCISE PRICE . The exercise price of the Fixed Price Option shall be $2.50. The exercise price of the VWAP Price Option shall be the Fair Market Value of a Share on the date hereof ($2.50 per Share) and shall be adjusted in accordance with Section 409A to be the trailing volume-weighted average price for the period beginning on July 27, 2016 and ending thirty days thereafter, but in any case not less than $2.50 and not more than $5.00.
4.
PAYMENT FOR SHARES . Payment for the Shares issuable upon exercise of an Option shall be made in full in cash or by certified check. The Employee may exercise the Option through a cashless exercise procedure, pursuant to Section 8.02 of the Plan. Any payment for Shares must include such additional amounts as may be required by the Company to satisfy Federal, state and local withholding tax requirements.
5.
ISSUANCE OF CERTIFICATES . As soon as reasonably practicable following the exercise of an Option and the receipt by the Company of payment for the Shares and applicable withholding taxes, a certificate representing the Shares purchased, registered in the name of the Employee shall be delivered to the Employee. The following legend may be included on such Shares:
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION PROVIDED BY RULE 701 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREOF, INCLUDING WITHOUT LIMITATION, COMPLIANCE WITH THE REQUIREMENTS OF RULE 701 UNDER THE ACT.”
6.
TERMINATION OF EMPLOYMENT . Upon termination of the Employee’s employment with the Company, the Employee shall be entitled to exercise the Options, to the extent exercisable on the date of the Employee’s termination, at any time within the three (3) month period immediately following the date of the Employee’s termination of employment, provided that , upon termination of the Employee’s employment without Cause or for Good Reason, each as defined in such Employee’s Employment Agreement, if applicable, or due


    


to the Employee’s death or Disability, the Option shall be exercisable until the later of (i) the fourth anniversary of the Date of Grant or (ii) the second anniversary of such termination of employment, but in all cases, not later than the Expiration Date.
7.
SECURITIES REPRESENTATIONS . Upon the exercise of the Option prior to the registration of the Shares to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Employee shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be reasonably requested by the Company for compliance with applicable laws, and any issuances of Shares by the Company hereunder shall be made in reliance upon the express representations and warranties of the Employee:
(a)
The Employee is acquiring and will hold the Shares to be issued hereunder for investment for the Employee’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.
(b)
The Employee has been advised that the Shares to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Shares is to be effected (it being understood, however, that such Shares are being issued and sold in reliance on the exemption provided under Rule 701 under the Securities Act), and that such Shares must be held indefinitely, unless they are subsequently registered under the applicable securities laws or the Employee obtains an opinion of counsel (in the form and substance reasonably satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Employee’s representations set forth in this Section 7. The Employee further acknowledges and understands that the Company is under no obligation hereunder to register the Shares to be issued hereunder.
(c)
The Employee is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Employee acknowledges that the Employee is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.
(d)
The Employee has been furnished with, and has had access to, such information as the Employee considers necessary or appropriate for deciding whether to invest in the Shares to be issued hereunder, and the Employee has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Shares.

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(e)
The Employee is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Employee is able, without impairing the Employee’s financial condition, to hold the Shares to be issued hereunder for an indefinite period and to suffer a complete loss of the Employee’s investment in such Shares.
8.
EFFECT OF CHANGE IN CONTROL . Upon a Change in Control, as defined in the Plan, the Options shall continue to become exercisable pursuant to the terms set forth herein.
9.
NONTRANSFERABILITY . Options granted under the Plan may not be transferred, assigned pledged or hypothecated (whether by operation of law or otherwise), except as provided by will or the applicable laws of descent and distribution, and Options shall be subject, in whole or in part, to execution, attachment or similar process.
10.
MISCELLANEOUS .
(a)
Definitions . Terms used in this Agreement which are defined in the Plan shall have the respective meanings set forth in the Plan.
(b)
Tag Along Rights. For the avoidance of doubt, the Employee shall have the same tag along rights with respect to (i) Shares acquired pursuant to exercise of the Option and (ii) vested Shares granted on July 26, 2016 pursuant to the Plan, on the same terms and conditions as are then applicable to other Company stockholders pursuant to any stockholders agreement or any similar agreement, if any, as may be in effect from time to time; provided that the Employee will not be required to agree to be subject to restrictive covenants that are more burdensome than those included in the Employee’s Employment Agreement, if applicable. If the other Company stockholders do not include the Employee in any transaction in which such rights would apply, the Company shall, subject to applicable law, offer to purchase such Shares for cash at the purchase price paid in such transaction.
(c)
No Right To Employment . This Agreement shall not confer upon the Employee any right to continue in the employ of the Company or any subsidiary or to be entitled to any remuneration or benefits not set forth in this Agreement or the Plan nor interfere with or limit the right of the Company or any subsidiary to modify the terms of or terminate the Employee’s employment at any time.
(d)
Notice . Any notice or other communication required or permitted to be given under this Agreement must be given by personal delivery or by registered or certified mail, return receipt requested and addressed, if to the Committee or the Company, at the principal office of the Company and, if to the Employee, at the Employee’s last known address as set forth in the books and records of the Company.
(e)
Plan to Govern . This Agreement and the rights of the Employee hereunder are subject to all of the terms and conditions of the Plan as the same may be amended from time to time, as well as to such rules and regulations as the Committee may adopt for the administration of the Plan.

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(f)
Amendment . Subject to restrictions set forth in the Plan, the Company may from time to time suspend, modify or amend this Agreement. No suspension, modification or amendment of this Agreement may, without the consent of the Employee, adversely affect the rights of the Employee with respect to the Options granted pursuant to this Agreement.
(g)
Severability . In the event that any provision of this Agreement shall he held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of this Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.
(h)
Entire Agreement . This Agreement and the Plan contain all of the understandings between the Company and the Employee concerning the Options granted hereunder and supersede all prior agreements and understandings.
(i)
Counterparts . This Agreement may be executed in counterparts, each of which when signed by the Company and the Employee will be an original and all of which together will be the same Agreement.
(j)
Governing Law . To the extent not preempted by Federal law, this Agreement shall be construed in accordance with and governed by the laws of the State of Delaware.

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Exhibit 10.41

CONTURA ENERGY, INC.
DEFERRED COMPENSATION PLAN
Effective April 28, 2017
ARTICLE I
PURPOSE; EFFECTIVE DATE
1.1 Purpose . The purpose of this Deferred Compensation Plan (hereinafter, the “Plan”) is to permit a select group of management and highly compensated employees of Contura Energy, Inc. and its subsidiaries to provide additional retirement income to plan participants in excess of what they may be entitled to receive under the Company’s other retirement benefit plans. It is intended that this plan, by providing this supplemental retirement opportunity, will assist the Company in retaining and attracting individuals of exceptional ability by providing them with these benefits.
1.2 Effective Date . The Plan is effective as of April 28, 2017.
ARTICLE II
DEFINITIONS
For the purpose of this Plan, the following terms shall have the meanings indicated, unless the context clearly indicates otherwise:
2.1 Account . “Account” means the account maintained on the books of the Company used solely to calculate the amount payable to each Participant under this Plan and shall not constitute a separate fund of assets. The Account available for each Participant shall be identified as a Supplemental Retirement Plan Account (“SRP Account”)
2.2 Beneficiary . “Beneficiary” means one or more persons or entities designated by the Participant to receive any Plan benefits payable after the Participant’s death.
2.3 Board . “Board” means the Board of Directors of the Company.
2.4 Committee . “Committee” means the Compensation Committee of the Board.
2.5 Company . “Company” means Contura Energy, Inc. a Delaware corporation, and any direct or indirect subsidiary that has adopted this Plan or any successor to the business thereof. Any reference herein to the “Company” should, except as the context otherwise requires, be interpreted as a reference to the Participant’s particular employer.
2.6 Eligible Compensation . “Eligible Compensation” means any compensation (including base salary and incentive compensation) considered as “eligible compensation” for purposes of any tax-qualified plans which may be maintained under Section 401(k) or Section 125 of the Internal Revenue Code of 1986, as amended, (the “Code”), (any such plan, a “Qualified Retirement Plan”) during the applicable calendar year. For purposes of this Plan, Eligible





Compensation shall be calculated before reduction for any amounts deferred by the Participant pursuant to any Qualified Retirement Plan or any other non-qualified plan which permits the voluntary deferral of compensation.
2.7 Compensation Limit . “Compensation Limit” means the annual compensation limit specified under Section 401(a)(17) of the Code.
2.8 Determination Date . “Determination Date” means the last day of each calendar quarter.
2.9 Interest . “Interest” means the amount credited to a Participant’s Account(s) on each Determination Date.
2.10 Financial Hardship . “Financial Hardship” means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, a beneficiary, or a dependent (as defined in Section 152(a) of the Code, without regard to Section 152(b)(1), (b)(2) and (d)(1)(B)) of the Participant; the need to pay for the funeral expenses of a spouse, beneficiary or dependent (as defined above); loss of the Participant’s property due to casualty; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.
2.11 Management Administrator . “Management Administrator” means the Senior Vice President of Human Resources or such other person designated to act in such capacity by the Company’s Chief Executive Officer.
2.12 Participant . “Participant” means any eligible employee who has received a SRP Contribution. Such employee shall remain a Participant in this Plan for the period of deferral and until such time as all benefits payable under this Plan have been paid in accordance with the provisions hereof; provided, however, the foregoing provisions shall not limit the Committee’s discretion to determine whether an employee remains eligible to continue to actively participate in the Plan.
2.13 Plan . “Plan” means this Deferred Compensation Plan, as amended from time to time.
2.14 Service . “Service” is calculated based on hours of service within a calendar year. A year of Service will be credited when a Participant performs 1,000 hours of service within a calendar year. An hour of service is an hour for which the Participant is paid or entitled to be paid.
2.15 Separation from Service . “Separation from Service” shall mean a Participant’s death or other termination of employment with the Company and all of its controlled group members within the meaning of Section 409A of the Code and the Treasury Regulations and guidance thereunder (collectively, “Section 409A”). For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that the language “at least 50 percent” shall be used instead of “at least 80 percent” in each place it appears in Section 1563(a)(1), (2) and (3) of the Code and Treasury Regulation Section

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1.414(c)-2; provided, further, that where legitimate business reasons exist (within the meaning of Treasury Regulation Section 1.409A-1(h)(3)), the language “at least 20 percent” shall be used instead of “at least 80 percent” in each place it appears. Whether a Participant has a Separation from Service will be determined based on all of the facts and circumstances and in accordance with Section 409A.
2.16 SRP Contribution . “SRP Contribution” means the contribution made by the Company credited to the Participant’s SRP Account.
2.17 Specified Employees . “Specified Employees “means key employees of the Company, as defined in Section 416(i) of the Code without regard to paragraph (5) thereof, as determined in accordance with the procedures established by the Committee.
2.18 Valuation Funds . “ Valuation Funds “ means one or more of the independently established funds or indices, as authorized by the Committee, used to calculate the Interest that is credited to each Participant’s Account(s) in accordance with the terms of the Plan. Any such funds or indices represent hypothetical investments and do not represent actual investments, and shall not convey any beneficial interest on the part of the Participant in any asset or other property of the Company. The determination of the increase or decrease in the performance of each Valuation Fund shall be determined in accordance with the procedures established by the Committee. The Committee shall select one or more Valuation Funds available to the Participants with respect to this Plan and shall set forth a list of these Valuation Funds attached hereto as Exhibit A, which may be amended from time to time in the discretion of the Committee.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility and Participation .
(a) Eligibility . Eligibility to participate in the Plan shall be limited to key employees of the Company who are designated by the Chief Executive Officer or EVP – Chief Administrative Officer of the Company, from time to time, and approved by the Committee; provided, however, that the Committee may delegate the authority to approve an employee’s participation in the Plan to an officer or officers of the Company in its reasonable discretion.
(b) Participation . An employee’s participation in the Plan shall be effective upon being approved by the Committee or its delegate to participate in the Plan or as otherwise provided by the Committee; provided, however, that the Committee reserves the discretion to limit an employee’s ability to continue to participate in the Plan in the future.
ARTICLE IV
SUPPLEMENTAL RETIREMENT ACCOUNT
4.1 Account . SRP Contributions and Interest shall be credited to the Participant’s Account. The Account shall be used solely to calculate the amount payable to each Participant under this Plan and shall not constitute a separate fund of assets.

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4.2 Contributions To SRP Account . The Company shall credit SRP Contributions, if any, to each Participant’s SRP Account as soon as is practical after the close of each calendar year. The amount of the credited contribution under this Section shall be equal to the sum of (a) and (b):
(a) the quotient obtained by multiplying the amount of the Participant’s total annual Eligible Compensation for the preceding calendar year in excess of the Compensation Limit for the preceding calendar year, by the aggregate Company matching contribution percentage for all Qualified Retirement Plans in effect for the preceding calendar year; and
(b) a discretionary contribution that may be made in accordance with Section 4.6.
4.3 Determination of Account . Each Participant’s Account as of each Determination Date shall consist of the balance of the Account as of the immediately preceding Determination Date, adjusted as follows:
(a) SRP Contributions . The Participant’s Account shall be increased, as appropriate, by any SRP Contributions credited since such prior Determination Date.
(b) Interest . Each Account shall be increased or decreased by the Interest for such Account since such Determination Date.
4.4 Vesting of Account . SRP Contributions and discretionary contributions credited to a Participant’s SRP Account and Interest thereon shall become one hundred percent (100%) vested when credited to the Participant’s Account.
4.5 Statement of Account . The Management Administrator shall provide to each Participant a statement showing the balances in the Participant’s Account on an annual basis.
4.6 Discretionary Contribution . The Committee may grant a discretionary contribution in accordance with Section 4.6(c) and the requirements of this Section. Such a discretionary contribution shall satisfy the following:
(a) The contribution will be a percentage of Eligible Compensation for each applicable Participant (as updated from time to time), which the Committee (or its designee) may establish and adjust, from time to time, in the first quarter of each Plan year. An eligible Participant will be informed of any such adjustment at that time.
(b) The contribution will only be made as determined by the Committee. It is completely discretionary and need not be given to all or any Participants, nor are those eligible required to have the same percentage contribution. Participation in any one year will not ensure participation in any subsequent year.
(c) The contribution, if any, will be credited to an eligible Participant’s Account as of December 31st of the year for which it was granted. An eligible Participant must be actively employed on a full time basis on this date to receive the credit.

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(d) Notwithstanding the last sentence of Section 4.6(c), an eligible Participant will receive a prorated credit as of December 31 st of the year for which it was granted if the Participant’s employment is terminated during such year for any of the following reasons: (i) death; (ii) disability; (iii) involuntary termination by the Company without cause; (iv) termination by the Participant for good reason; or (v) upon an involuntary termination associated with, or in connection with, a change in control of the Company (as determined by the Company in its sole discretion prior to the change in control).
(e) For purposes of this Section 4.6, the terms “disability.” “cause,” “good reason,” and “change in control” shall have (i) the meanings ascribed to them in any employment agreement between the Company and the Participant or (ii) if there is no such agreement, then the meanings ascribed to them in the Contura Energy, Inc. 2017 Long-Term Incentive Plan, whether or not the Participant is a participant in such Long-Term Incentive Plan.
ARTICLE V
PLAN BENEFITS
5.1 SRP Account . The Participant’s SRP Account shall be distributed to the Participant in a single lump sum cash payment on the six-month anniversary of the Participant’s Separation from Service.
5.2 Death Benefit . Upon the death of a Participant prior to the distribution of a Participant’s SRP Account under this Plan, the Company shall pay to the Participant’s Beneficiary within 60 days following the Participant’s date of death a single lump sum cash payment equal to the Participant’s SRP Account balance.
5.3 Hardship Distributions . Upon request of a Participant and a finding by the Committee that a Participant has suffered a Financial Hardship, the Committee may, in its discretion and subject to Section 409A, make a distribution from the Participant’s Account balance. The amount of such distribution shall be limited to the amount reasonably necessary to meet the Participant’s needs resulting from the Financial Hardship, plus amounts necessary to pay taxes and penalties reasonably anticipated as a result of such distribution. In determining the amount of such distribution, the Committee shall take into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise, or by liquidation of the Participant’s assets (to the extent that the liquidation of such assets would not itself cause severe Financial Hardship).
5.4 Small Account . The Committee, in its discretion and subject to Section 409A, may distribute the Participant’s Account in a lump sum if the present value of the Participant’s remaining unpaid Account balance (and all other amounts required to be aggregated with such account under Section 409A) falls below the applicable dollar amount under Section 402(g)(1)(B) of the Code. Any such exercise of discretion shall be evidenced in writing not later than the date of payment.
5.5 Withholding; Payroll Taxes . All SRP Contributions and discretionary contributions granted to Participants, and all benefits payable under the Plan shall be subject to any federal, state or local taxes required by law to be withheld. At the time that tax withholding is

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required, if an amount is contributed or payable under the Plan to the Participant’s Account, the amount of the required tax withholding shall be withheld from such contribution or payment. If, however, an amount is not then contributed or payable or the amount contributed or payable under the Plan to the Participant is less than the required withholding, the Participant shall pay to the Company, not later than the date such withholding is required, the amount of the required tax withholding or, at the sole election of the Company, the amount of required tax withholding shall be withheld from other compensation or amounts payable to the Participant. The Participant shall hold the Company harmless from any liability for acting to satisfy the withholding obligation in this manner.
5.6 Payment to Guardian . If a Plan benefit is payable to a minor or a person declared incompetent or to a person incapable of handling the disposition of the property, the Committee may direct payment to the guardian, legal representative or person having the care and custody of such minor or incompetent person. The Company may require proof of incompetency, minority, incapacity or guardianship as it may deem appropriate prior to distribution. Such distribution shall completely discharge the Committee and Company from all liability with respect to such benefit.
5.7 Effect of Payment . The full payment of the applicable benefit under this Plan shall completely discharge all obligations on the part of the Company to the Participant (and the Participant’s Beneficiary) with respect to the operation of this Plan, and the Participant’s (and Participant’s Beneficiary’s) rights under this Plan shall terminate.
ARTICLE VI
BENEFICIARY DESIGNATION
6.1 Beneficiary Designation . Each Participant shall have the right, at any time, to designate one (1) or more persons as Beneficiary (both primary as well as secondary) to whom benefits under this Plan shall be paid in the event of Participant’s death prior to complete distribution of the Participant’s Account balance. Each Beneficiary designation shall be in a written form acceptable to the Committee and shall be effective only if filed with the Management Administrator during the Participant’s lifetime. Designation by a married Participant to the Participant’s spouse of less than a fifty percent (50%) interest in the benefit due shall not be effective unless the spouse consents in writing to the designation, or it is established that the consent cannot be obtained because the spouse cannot be located.
6.2 Changing Beneficiary . Any Beneficiary designation may be changed by filing of a new Beneficiary designation with the Management Administrator. A married Participant’s Beneficiary designation may be changed by a Participant, with the consent of the Participant’s spouse as provided for in Section 6.1 above, by the filing of a new designation. Any such new Beneficiary designation shall cancel all prior designations previously filed by the Participant.
6.3 Change in Marital Status . If the Participant’s marital status changes after the Participant has designated a Beneficiary, the following shall apply:

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(a) If the Participant is married at death but was unmarried when the designation was made, the designation shall be void unless the spouse has consented to it in the manner prescribed herein.
(b) If the Participant is unmarried at death but was married when the designation was made:
(i) The designation shall be void if the spouse was named as Beneficiary; and
(ii) The designation shall remain valid if a non-spouse Beneficiary was named.
(c) f the Participant was married when the designation was made and is married to a different spouse at death, the designation shall be void unless the new spouse has consented to it in the manner prescribed herein.
6.4 No Beneficiary Designation . If any Participant fails to designate a Beneficiary in the manner provided above, if the designation is void, or if the Beneficiary designated by a deceased Participant dies before the Participant or before complete distribution of the Participant’s benefits, the Participant’s Beneficiary shall be the person in the first of the following classes in which there is a survivor:
(a) The Participant’s surviving spouse;
(b) The Participant’s children in equal shares, except that if any of the children predeceases the Participant but leaves surviving issue, then such issue shall take by right of representation the share the deceased child would have taken if living; or
(c) The Participant’s estate.
6.5 Effect of Payment . Payment to the Beneficiary shall completely discharge the Company’s obligations under this Plan.
ARTICLE VII
ADMINISTRATION
7.1 Committee; Duties . This Plan shall be administered by the Committee and, where applicable, by the Management Administrator, and any of their designees. The Committee and, where applicable, the Management Administrator, shall have the exclusive authority and discretion to interpret, construe, and administer the provisions of the Plan and to decide all questions concerning the Plan and its administration. Without limiting the foregoing, the Committee and, where applicable, the Management Administrator, shall have the authority, from time to time, to: determine eligibility for and the amount of benefits, if any, due under the Plan; determine amounts payable under the Plan; interpret the Plan, to make factual determinations, to correct deficiencies, and to supply omissions, including resolving any ambiguity or uncertainty arising under or existing in the terms and provisions of the Plan; make all other determinations and to take all other actions necessary

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or advisable for the implementation and administration of the Plan; and establish rules and regulations for the administration of the Plan.
7.2 Agents . The Committee and, where applicable, the Management Administrator, may, from time to time, employ agents and delegate to them such administrative duties as it sees fit, and may from time to time consult with counsel who may be counsel to the Company.
7.3 Binding Effect of Decisions . The decision or action of the Committee and, where applicable, the Management Administrator, with respect to any question arising out of or in connection with the administration, interpretation and application of the Plan and the rules and regulations promulgated hereunder shall be final, conclusive and binding upon all persons having any interest in the Plan.
7.4 Indemnity of Committee . The Company shall indemnify and hold harmless the members of the Committee and, where applicable, the Management Administrator, against any and all claims, loss, damage, expense or liability arising from any action or failure to act with respect to this Plan on account of such member’s service on the Committee, and, where applicable, the Management Administrator, except in the case of gross negligence or willful misconduct.
ARTICLE VIII
CLAIMS PROCEDURE
8.1 Claim . Any person or entity claiming a benefit, requesting an interpretation or ruling under the Plan (hereinafter referred to as “Claimant”), or requesting information under the Plan shall present the request in writing to the Management Administrator, which shall respond in writing as soon as practical.
8.2 Denial of Claim . If the claim or request is denied, the written notice of denial shall state:
(a) The reasons for denial, with specific reference to the Plan provisions on which the denial is based;
(b) A description of any additional material or information required and an explanation of why it is necessary; and
(c) An explanation of the Plan’s claim review procedure.
8.3 Review of Claim . Any Claimant whose claim or request is denied or who has not received a response within sixty (60) days may request a review by notice given in writing to the Committee. Such request must be made within sixty (60) days after receipt by the Claimant of the written notice of denial, or in the event Claimant has not received a response sixty (60) days after receipt by the Committee of Claimant’s claim or request. The claim or request shall be reviewed by the Committee which may, but shall not be required to, grant the Claimant a hearing. On review, the claimant may have representation, examine pertinent documents, and submit issues and comments in writing.

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8.4 Final Decision . The decision on review shall normally be made within sixty (60) days after the Committee’s receipt of claimant’s claim or request. If an extension of time is required for a hearing or other special circumstances, the Claimant shall be notified and the time limit shall be one hundred twenty (120) days. The decision shall be in writing and shall state the reasons and the relevant Plan provisions. All decisions on review shall be final and bind all parties concerned.
ARTICLE IX
AMENDMENT AND TERMINATION OF PLAN
9.1 Amendment . The Company reserves the right to amend, modify or suspend the Plan, in whole or in part, at any time; provided however, that any such amendment, modification or suspension shall not reduce the accrued benefit of any Participant. Notwithstanding, the Company may, in its sole discretion and without the Participant’s consent, modify or amend the terms of the Plan, or take any other action it deems necessary or advisable, to cause the Plan to comply with Section 409A (or an exception thereto) .
9.2 Company’s Right to Terminate . The Company reserves the right to terminate the Plan, in whole or in part, at any time; provided however, that any such termination shall not reduce the accrued benefit of any Participant. Termination of the Plan shall not be a distribution event under the Plan unless otherwise permitted under Section 409A or other applicable law.
ARTICLE X
MISCELLANEOUS
10.1 Unfunded Plan . This plan is an unfunded plan maintained primarily to provide deferred compensation benefits for a select group of “management or highly-compensated employees” within the meaning of Sections 201, 301, and 401 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and therefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.
10.2 Company Obligation . The obligation to make benefit payments to any Participant under the Plan shall be an obligation solely of the Company with respect to the deferred compensation receivable from, and contributions by, the Company and shall not be an obligation of another company.
10.3 Section 409A . Notwithstanding any provision of the Plan to the contrary, the provisions of the Plan shall be administered, interpreted and construed in accordance with Section 409A (or disregarded to the extent such provision cannot be so administered, interpreted or construed). It is intended that distribution events authorized under the Plan qualify as permissible distribution events for purposes of Section 409A and the Plan shall be interpreted and construed accordingly in order to comply with Section 409A. Accordingly, if a Participant is a Specified Employee for purposes of Section 409A and a payment subject to Section 409A to the Participant is due upon Separation from Service, such payment shall be delayed for a period of six (6) months after the date the Participant Separates from Service (or, if earlier, the death of the Participant). The Company reserves the right to accelerate, delay or modify distributions to the extent permitted under Section 409A. Notwithstanding any provision of the Plan to the contrary, in no event shall the

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Committee or Board (or any member thereof), or the Company (or its employees, officers, directors or affiliates) have any liability to any Participant (or any other person) due to the failure of the Plan to satisfy the requirements of Section 409A or any other applicable law.
10.4 Unsecured General Creditor . Notwithstanding any other provision of this Plan, Participants and Participants’ Beneficiaries shall be unsecured general creditors, with no secured or preferential rights to any assets of Company or any other party for payment of benefits under this Plan. Any property held by Company for the purpose of generating the cash flow for benefit payments shall remain its general, unpledged and unrestricted assets. The Company’s obligations under the Plan shall be unfunded and unsecured promises to pay money in the future.
10.5 Trust Fund . Company shall be responsible for the payment of all benefits provided under the Plan. At its discretion, Company may establish one (1) or more trusts, with such trustees as the Board may approve, for the purpose of assisting in the payment of such benefits. Although such a trust may be irrevocable, its assets shall be held for payment of all Company’s general creditors in the event of insolvency. To the extent any benefits provided under the Plan are paid from any such trust, Company shall have no further obligation to pay them. If not paid from the trust, such benefits shall remain the obligation of Company.
10.6 Nonassignability . Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder. No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgements, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency.
10.7 Not a Contract of Employment . This Plan shall not constitute a contract of employment between Company and a Participant. Nothing in this Plan shall give a Participant the right to be retained in the service of Company or to interfere with the right of the Company to discipline or discharge a Participant at any time.
10.8 Protective Provisions . A Participant will cooperate with Company by furnishing any and all information requested by Company, in order to facilitate the payment of benefits hereunder, and by taking such physical examinations as Company may deem necessary and taking such other action as may be requested by Company.
10.9 Governing Law . The provisions of this Plan shall be construed and interpreted according to the laws of the State of Tennessee, except as preempted by federal law.
10.10 Validity . If any provision of this Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal and invalid provision had never been inserted herein.
10.11 Notice . Any notice required or permitted under the Plan shall be sufficient if in writing and hand delivered or sent by registered or certified mail. Such notice shall be deemed

10


given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Mailed notice to the Committee shall be directed to the Company’s address. Mailed notice to a Participant or Beneficiary shall be directed to the individual’s last known address in company’s records.
10.12 Successors . The provisions of this Plan shall bind and inure to the benefit of Company and its successors and assigns. The term successors as used herein shall include any corporate or other business entity which shall, whether by merger, consolidation, purchase or otherwise acquire all or substantially all of the business and assets of Company, and successors of any such corporation or other business entity.
 
CONTURA ENERGY, INC.
 
 
 
 
By:
/s/ Kevin S. Crutchfield
 
 
Name: Kevin S. Crutchfield
 
 
Title: Chief Executive Officer


11


Exhibit A

Valuation Funds as of April 28, 2017
Moody’s Seasoned Aaa Corporate Bond Yield



Exhibit 10.42


Contura Energy, Inc.
Annual Incentive Bonus Plan


1.
Purpose of the Plan

The purpose of the Contura Energy, Inc. (the “Company”) Annual Incentive Bonus Plan (the “Plan”) is to advance the interests of the Company and its stockholders by providing incentives to key employees with significant responsibility for achieving performance goals critical to the success and growth of the Company. The Plan is designed to: (i) promote the attainment of the Company’s significant business objectives; (ii) encourage and reward management teamwork across the entire Company; and (iii) assist in the attraction and retention of employees vital to the Company’s long-term success.

2.
Definitions

For the purpose of the Plan, the following definitions shall apply:

(a)      "Contura" means Contura Energy, Inc. (or any successor thereto).
(b)      “ Board ” means the Board of Directors of Contura.
(c)      “Cause” means “Employer Cause” as set forth in any employment agreement between the Participant and the Company or, in the absence of such an agreement, “Cause” as defined by the Company’s plans applicable to the Participant or employment policies in effect at the time of the Participant’s Separation from Service and/or a violation of the Company’s Code of Business Ethics, as in effect from time to time.
(d)      " Change of Control " means (A) any merger, consolidation or business combination in which the shareholders of Contura immediately prior to the merger, consolidation or business combination do not own at least a majority of the outstanding equity interests of the surviving parent entity, (B) the sale of all or substantially all of the Company's assets in a single transaction or a series of related transactions, (C) the acquisition of beneficial ownership or control of (including, without limitation, power to vote) a majority of the outstanding common stock of Contura by any person or entity (including a "group" as defined by or under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), (D) the shareholders of Contura approve any plan for the dissolution or liquidation of Contura, or (E) a contested election of directors, as a result of which or in connection with which the persons who were directors of Contura before such election or their nominees cease to constitute a majority of the Board.
(e)      “ Code ” means the Internal Revenue Code of 1986, as amended, including any successor law thereto.




(f)      “ Committee ” means the Compensation Committee of the Board, or such other committee as is appointed or designated by the Board to administer the Plan, in each case which, to the extent required by Section 162(m) of the Code, shall be comprised solely of two or more “outside directors” (as defined under Section 162(m) of the Code and the regulations promulgated thereunder); provided, however, that with respect to Participants who the Company has determined not to be subject to Section 162(m) of the Code, to the extent permitted by the Committee’s charter, the powers and authority of the Committee under the Plan are hereby delegated to the Company’s Chief Executive Officer and, in connection therewith, all references to the Committee in this Plan shall be deemed references to the Company’s Chief Executive Officer as it relates to those aspects of the Plan that have been so delegated.
(g)      “ Company ” means Contura and any subsidiary entity or affiliate thereof, including subsidiaries or affiliates which become such after adoption of the Plan.
(h)      “Forfeit,” “Forfeiture,” “Forfeited” means the loss by a Participant of any and all rights to an award granted under the Plan, including the loss to any payment of compensation by the Company under the Plan or any award granted thereunder.    
(i)      “Participant” means any person: (1) who satisfies the eligibility requirements set forth in Section 4; (2) to whom an award has been made by the Committee; and (3) whose award remains outstanding under the Plan.
(j)      “ Performance Goal ” means, in relation to any Performance Period, the level of performance that must be achieved with respect to a Performance Measure.
(k)      “ Performance Measures ” means any one or more of the following performance criteria, either individually, alternatively or in any combination, and subject to such modifications or variations as specified by the Committee, applied to either the Company as a whole or to a business unit or subsidiary entity thereof, either individually, alternatively or in any combination, and measured over a period of time including any portion of a year, annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous years' results or to a designated comparison group, in each case as specified by the Committee: cash flow; cash flow from operations; earnings (including, but not limited to, earnings before interest, taxes, depreciation, and amortization or some variation thereof); earnings per share, diluted or basic; earnings per share from continuing operations; net asset turnover; inventory turnover; capital expenditures; debt; debt reduction; working capital; return on investment; return on sales; net or gross sales; market share; economic value added; cost of capital; change in assets; expense reduction levels; productivity; delivery performance; safety record and/or performance; environmental record and/or performance; stock price; return on equity; total or relative increases to shareholder return; return on invested capital; return on assets or net assets; revenue; income or net income; operating income or net operating income; operating profit or net operating profit; gross margin, operating margin or profit margin; and completion of acquisitions, business expansion, product diversification, new or expanded market penetration and other non-financial operating and management performance objectives. Unless inconsistent with

2


Section 162(m) of the Code and the regulations promulgated thereunder, the Committee may determine that certain adjustments shall apply, in whole or in part, in such manner as specified by the Committee, to exclude or include the effect of specified events that occur during a Performance Period, including the following: the impairment of tangible or intangible assets; asset write-downs; litigation or claim judgments or settlements; acquisitions or divestitures; gains or losses on the sale of assets; foreign exchange gains and/or losses; changes in tax law, accounting principles or other such laws or provisions affecting reported results; business combinations, reorganizations and/or restructuring programs, including but not limited to reductions in force and early retirement incentives; currency fluctuations; and any extraordinary, unusual, infrequent or non-recurring items, including, but not limited to, such items described in management's discussion and analysis of financial condition and results of operations or the financial statements and/or notes thereto appearing in the Company's annual report for the applicable period.
(l)      “ Performance Period ” means, in relation to any award, the calendar year or other fiscal period within a calendar year of less than 12 months for which a Participant’s performance is being calculated, with each such period constituting a separate Performance Period.
(m)      “Section 409A” shall mean Section 409A of the Code, the regulations and other binding guidance promulgated thereunder.
(n)      “Separation from Service” or “Separates from Service” shall mean the Participant's death, retirement or other termination of employment or service with the employer (including all persons treated as a single employer under Sections 414(b) and 414(c)). For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Sections 414(b) and 414(c); provided that the language "at least 50 percent" shall be used instead of "at least 80 percent" in each place that it appears in Section 1563(a)(1), (2) and (3) and Treas. Reg. Section 1.414(c)-2; provided, further, where legitimate business reasons exist (within the meaning of Treas. Reg. Section 1.409A-1(h)(3)), the language "at least 20 percent" shall be used instead of "at least 80 percent" in each place it appears. Whether a Participant has experienced a Separation from Service will be determined based on all of the facts and circumstances in accordance with the guidance issued under Section 409A and, to the extent not inconsistent therewith, the terms of the Plan.
3.
Administration of the Plan

(a) The management of the Plan shall be vested in the Committee; provided, however, that all acts and authority of the Committee pursuant to this Plan shall be subject to the provisions of the Committee’s Charter, as amended from time to time, and such other authority as may be delegated to the Committee by the Board.
(b) Subject to the terms of the Plan, the Committee shall, among other things, have full authority and discretion to determine eligibility for participation in the Plan, make awards under the Plan, establish the terms and conditions of such awards (including the

3


Performance Goal(s) and Performance Measure(s) to be used) and determine whether the Performance Goals applicable to any Performance Measures for any awards have been achieved. The Committee’s determinations under the Plan need not be uniform among all Participants, or classes or categories of Participants, and may be applied to such Participants, or classes or categories of Participants, as the Committee, in its sole and absolute discretion, considers necessary, appropriate or desirable. The Committee is authorized to interpret the Plan, to adopt administrative rules, regulations, and guidelines for the Plan, and may correct any defect, supply any omission or reconcile any inconsistency or conflict in the Plan or in any award. All determinations by the Committee shall be final, conclusive and binding on the Company, the Participant and any and all interested parties.
(c) Subject to the provisions of the Plan, the Committee will have the authority and discretion to determine the extent to which awards under the Plan will be structured to conform to the requirements applicable to performance-based compensation as described in Section 162(m) of the Code, and to take such action, establish such procedures, and impose such restrictions at the time such awards are granted as the Committee determines to be necessary or appropriate to conform to such requirements. Notwithstanding any provision of the Plan to the contrary, if an award under this Plan is intended to qualify as performance-based compensation under Section 162(m) of the Code and the regulations issued thereunder and a provision of this Plan would prevent such award from so qualifying, such provision shall be administered, interpreted and construed to carry out such intention (or disregarded to the extent such provision cannot be so administered, interpreted or construed).
(d) The benefits provided under the Plan are intended to be excepted from coverage under Section 409A and the regulations promulgated thereunder and shall be construed accordingly. Notwithstanding any provision of the Plan to the contrary, if any benefit provided under this Plan is subject to the provisions of Section 409A and the regulations issued thereunder (and not excepted therefrom), the provisions of the Plan shall be administered, interpreted and construed in a manner necessary to comply with Section 409A and the regulations issued thereunder (or disregarded to the extent such provision cannot be so administered, interpreted, or construed.)

4.
Participation in the Plan

Officers and key employees of the Company shall be eligible to participate in the Plan. No employee shall have the right to participate in the Plan, and participation in the Plan in any one Performance Period does not entitle an individual to participate in future Performance Periods.

5.
Incentive Compensation Awards

(a) The Committee may, in its discretion, from time to time make awards to persons eligible for participation in the Plan pursuant to which the Participant will earn cash compensation. The amount of a Participant’s award may be based on a percentage of such

4


Participant’s salary or such other methods as may be established by the Committee. Each award shall be communicated to the Participant, and shall specify, among other things, the terms and conditions of the award and the Performance Goals to be achieved. The maximum amount that may be awarded under the Plan to a Participant for any calendar year shall not exceed USD $15,000,000.
(b) With respect to awards that are intended to be performance-based compensation under Section 162(m) of the Code, each award shall be conditioned upon the Company’s achievement of one or more Performance Goal(s) with respect to the Performance Measure(s) established by the Committee. No later than ninety (90) days after the beginning of the applicable Performance Period, the Committee shall establish in writing the Performance Goals, Performance Measures and the method(s) for computing the amount of compensation which will be payable under the Plan to each Participant if the Performance Goals established by the Committee are attained; provided however, that for a Performance Period of less than one year, the Committee shall take any such actions prior to the lapse of 25% of the Performance Period. In addition to establishing minimum Performance Goals below which no compensation shall be payable pursuant to an award, the Committee, in its discretion, may create a performance schedule under which an amount less than or more than the target award may be paid so long as the Performance Goals have been achieved.
(c) The Committee, in its sole discretion, may also establish such additional restrictions or conditions that must be satisfied as a condition precedent to the payment of all or a portion of any awards. Such additional restrictions or conditions need not be performance-based and may include, among other things, the receipt by a Participant of a specified annual performance rating, the continued employment by the Participant and/or the achievement of specified performance goals by the Company, business unit or Participant. Furthermore and notwithstanding any provision of this Plan to the contrary, the Committee, in its sole discretion, may reduce the amount of any award to a Participant if it concludes that such reduction is necessary or appropriate based upon: (i) an evaluation of such Participant’s performance; (ii) comparisons with compensation received by other similarly situated individuals working within the Company’s industry; (iii) the Company’s financial results and conditions; or (iv) such other factors or conditions that the Committee deems relevant. Notwithstanding any provision of this Plan to the contrary, the Committee shall not use its discretionary authority to increase any award that is intended to be performance-based compensation under Section 162(m) of the Code.
6.
Payment of Individual Incentive Awards

(a) After the end of the Performance Period, the Committee shall certify in writing the extent to which the applicable Performance Goals and any other material terms have been achieved. Subject to the provisions of the Plan, earned Awards shall be paid in the first calendar year immediately following the end of the Performance Period on or before March 15th of such calendar year (“Payment Date”). For Performance Periods less than 12 months in a calendar year, earned Awards may be paid as soon as administratively possible once the Performance Goals and any other material terms have been certified in writing by

5


the Committee, with no such payment dates later than March 15th of the calendar year following the end of any Performance Period. For purposes of this provision, and for so long as the Code permits, the minutes of the Committee meeting in which the certification is made may be treated as written certification.

(b) Unless otherwise determined by the Committee or as otherwise provided in a Company plan applicable to a Participant or any agreement between the Participant and the Company , Participants who have a Separation from Service prior to the end of the Performance Period of an award for any reason other than as provided below, shall Forfeit any and all rights to payment under such award(s) then outstanding under the terms of the Plan and shall not be entitled to any cash payment for the applicable period. If a Participant Separates from Service prior to the end of the Performance Period of an award on account of an involuntary Separation from Service by the Company other than for Employer Cause (A) within the 90-day period immediately preceding a Change of Control, or (B) on or within the one (1) year period following a Change of Control, the award will be deemed earned at a target award level. Except as otherwise provided herein, any payments under the Plan shall be paid to the Participant subject to the Committee's certification that the applicable Performance Goals and other material terms have been met. Any payment to which a Participant becomes entitled to receive pursuant to the Change of Control provisions of this Section 6(b) will be paid to the Participant contemporaneous with the consummation of the Change of Control or, if later, on or before the sixtieth (60th) day following the Participant's Separation from Service (but, in each case, within the short-term deferral exception as specified in Treas. Reg. § 1.409A-1(b)(4)).

7.
Clawback/ Recoupment

(a) For awards paid under this Plan, the Committee may, to the extent permitted by governing law, require reimbursement of any cash compensation paid to a Participant under the Plan if the Participant is an employee of pay grade 22 or higher at the beginning of the Performance Period where: (i) the payment was predicated upon the achievement of certain financial results that were subsequently the subject of a restatement of the Company's financial statements filed with the Securities and Exchange Commission , which restatement occurs no more than three years from the date of such payment, where the Committee reasonably determines that any employee engaged in intentional misconduct that caused or partially caused the need for the restatement, and a lower payment would have been made to Participants based upon the restated financial results; provided, however, that the Committee reserves the discretion to determine that a Participant shall not be subject to this provision; or (ii) the Participant engaged in ethical misconduct in violation of the Company's Code of Business Ethics, as in effect from time to time, during the three year period following the date of payment, which the Committee reasonably determines caused material business or reputational harm to the Company.

6


(b) If the Committee reasonably determines that a payment of cash compensation made to a Participant under the Plan should be reimbursed under Sections 7(a)(i) or 7(a)(ii), then the following shall apply: (i) in the event reimbursement is required under Section 7(a)(i), the Participant shall be required to reimburse the Company in an amount equal to the dollar value of the cash compensation received by the Participant in excess of what the Participant would have received on such date had the payment been based upon such restated financial results; or (ii) in the event reimbursement is required under Section 7(a)(ii), the Participant shall be required to reimburse the Company in an amount the Committee reasonably determines to be appropriate, which could equal up to the full amount of the cash compensation paid to the Participant under the Plan during the applicable three-year period. Notwithstanding the foregoing, the Company shall not be required to make any additional payment in the event that the restated financial results would have resulted in a greater payment to the Participant.
(c) In the event the Participant is obligated to reimburse the Company for any cash compensation received under the Plan pursuant to Sections 7(b)(i) or 7(b)(ii), the Company may, at its sole election: (i) require the Participant to pay the amount in a lump sum within thirty (30) days of such determination; (ii) deduct the amount from any other compensation owed to the Participant (as a condition to receiving additional awards under the Plan), and the Participant by accepting participation in the Plan agrees to permit the deduction provided for by this subparagraph); or (iii) a combination of Sections 7(c)(i) and 7(c)(ii).
(d) By participating in the Plan, the Participant agrees that timely payment to the Company as set forth in this Section 7 is reasonable and necessary, and that timely payment to the Company as set forth in this Section 7 is not a penalty, and it does not preclude the Company from seeking all other remedies that may be available to the Company. The Participant further acknowledges and agrees that a Participant's award(s) shall be cancelled and Forfeited without payment by the Company if the Committee reasonably determines that a Participant has engaged in the conduct specified under Sections 7(a)(i) or 7(a)(ii).
(e) Notwithstanding any other provisions of this Plan, any award granted hereunder which is or becomes subject to recovery under any Company policy adopted hereafter and required by law, regulation or stock exchange listing requirement, shall be subject to such deductions, recoupment, and clawback as may be required to be made pursuant to such Company policy (the “Clawback Requirement”). In the event awards granted under this Plan become subject to such Clawback Requirement, then the awards shall be subject to such Clawback Requirement, and Section 7(a)(i) of this Plan shall no longer apply to awards granted hereunder.

8.
Amendment or Termination of the Plan

While the Company intends that the Plan shall continue in force from year to year, the Committee reserves the right to amend, modify or terminate the Plan, at any time;

7


provided, however, that no such modification, amendment or termination shall, without the consent of the Participant, materially adversely affect the rights of such Participant to any payment that has been determined by the Committee to be due and owing to the Participant under the Plan but not yet paid. Any and all actions permitted under this Section 8 may be authorized and performed by the Committee in its sole and absolute discretion.

Notwithstanding the foregoing or any provision of the Plan to the contrary, the Committee may at any time (without the consent of the Participant) modify, amend or terminate any or all of the provisions of this Plan to the extent necessary to conform the provisions of the Plan with Section 409A or Section 162(m) of the Code, the regulations promulgated thereunder or an exception thereto regardless of whether such modification, amendment, or termination of the Plan shall adversely affect the rights of a Participant under the Plan. Notwithstanding any provision of the Plan to the contrary, in no event shall the Committee or Board (or any member thereof), or the Company (or its employees, officers, directors or affiliates) have any liability to any Participant (or any other person) due to the failure of the Plan to satisfy the requirements of Section 409A or any other applicable law.

9.
Rights Not Transferable

A Participant’s rights under the Plan may not be assigned, pledged, or otherwise transferred except, in the event of a Participant’s death, to the Participant’s designated beneficiary, or in the absence of such a designation, by will or by the laws of descent and distribution.

10.
Funding/Payment

The Plan is not funded and all awards payable hereunder shall be paid from the general assets of the Company. No provision contained in this Plan and no action taken pursuant to the provisions of this Plan shall create a trust of any kind or require the Company to maintain or set aside any specific funds to pay benefits hereunder. To the extent a Participant acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of any unsecured general creditor of the Company. If any earned award is not paid by the Payment Date due to administrative impracticality, such earned award will be paid, without earnings, as soon as administratively practicable thereafter.

11.
Withholdings

The Company shall have the right to withhold from any awards payable under the Plan or other wages payable to a Participant such amounts sufficient to satisfy federal, state and local tax withholding obligations arising from or in connection with the Participant’s participation in the Plan and such other deductions as may be authorized by the Participant or as required by applicable law.

12.
No Employment or Service Rights

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Nothing contained in the Plan shall confer upon any Participant any right with respect to continued employment or service with the Company (or any of its affiliates) nor shall the Plan interfere in any way with the right of the Company (or any of its affiliates) to at any time reassign the Participant to a different job, change the compensation of the Participant or terminate the Participant’s employment or service for any reason.

13.
Other Compensation Plans

Nothing contained in this Plan shall prevent the Corporation from adopting other or additional compensation arrangements for employees of the Corporation, including arrangements that are not intended to comply with Section 162(m) of the Code.

14.
Governing Law

The Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of law provisions.

15.
Effective Date

The Plan, was approved by the Board on September 8, 2016.

9
Exhibit 10.43


Plan Document
and
Summary Plan Description
of the
Contura Energy, Inc.
Key Employee Separation Plan

Effective July 26, 2016












    


Contura Energy, Inc.
KEY EMPLOYEE SEPARATION PLAN
ARTICLE 1    INTRODUCTION
1.1     Purpose . The purposes of this Contura Energy, Inc. Key Employee Separation Plan is to assist the Company to retain the services of key employees by providing eligible employees of the Company and its Affiliates with certain severance and welfare benefits in the event their employment is involuntarily terminated (or constructively terminated).
1.2     Term of the Plan . The Plan shall generally be effective as of the Effective Date, but subject to amendment from time to time in accordance with Article 7. The Plan shall continue until terminated pursuant to Article 7 hereof.
ARTICLE 2.      DEFINITIONS
Except as may otherwise be specified or as the context may otherwise require, the following terms shall have the respective meanings set forth below whenever used herein:
(a)      "Affiliate" shall mean any parent entities, affiliated Subsidiaries and/or divisions of the Company.
(b)      "Contura" shall mean Contura Energy, Inc., a Delaware corporation.
(c)      "Base Pay" shall mean the Participant's annual base salary rate, exclusive of bonuses, commissions and other incentive pay, as in effect immediately preceding the Participant's Date of Termination.
(d)      "Benefit Factor" shall mean the multiple (either 2.0, 1.5, or 1.0) which has been assigned to each Participant for purposes of determining the Participant's benefit under Section 4.2(a)(ii) and Section 4.3(a)(ii), as the case may be, and which Benefit Factor may be different for each of Section 4.2(a)(ii) and Section 4.3(a)(ii).
(e)      "Benefit Plans" shall mean the insurance and health and welfare benefits plans and policies to which Participant is entitled to participate.
(f)      "Board" shall mean the Board of Directors of Contura.
(g)      "Cause" shall mean:
(i)      Participant's gross negligence or willful misconduct in the performance of the duties and services required of Participant;
(ii)      Participant's final conviction of, or plea of guilty or nolo contendere to, a felony or Participant engaging in fraudulent or criminal activity relating to the scope of Participant's employment (whether or not prosecuted);
(iii)      a material violation of Contura's Code of Business Ethics;


    


(iv)      any continuing or repeated failure to perform the duties as requested in writing by the Participant's supervisor(s) or the Board after Participant has been afforded a reasonable opportunity (not to exceed 30 days) to cure such breach;
(v)      the commission of a felony or crime involving moral turpitude; or
(vi)      conduct which brings the Company and/or its Affiliates into public disgrace or disrepute in any material respect.
Determination as to whether or not Cause exists for termination of Participant's employment will be made by the Board.
(h)      "Change in Control" shall mean the first to occur, after the Effective Date, of any of the following:
(i)      any merger, consolidation or business combination in which the stockholders of Contura immediately prior to the merger, consolidation or business combination do not own at least a majority of the outstanding equity interests of the surviving parent entity;
(ii)      the sale of all or substantially all of Contura's assets in a single transaction or a series of related transactions;
(iii)      the acquisition of beneficial ownership or control of (including, without limitation, power to vote) a majority of the outstanding common stock of Contura by any person or entity (including a "group" as defined by or under Section 13(d)(3) of the Securities Exchange Act);
(iv)      the stockholders of Contura approve any plan for the dissolution or liquidation of Contura; or
(v)      a contested election of directors, as a result of which or in connection with which the persons who were directors of Contura before such election or their nominees cease to constitute a majority of Contura's Board.
Upon the occurrence of a Change in Control as provided above, no subsequent event or condition shall constitute a Change in Control for purposes of the Plan with the result that there can be no more than one Change in Control hereunder.
(i)      "COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
(j)      "COBRA Continuation Period" shall mean the continuation period for medical and dental insurance to be provided under the terms of this Plan which shall commence on the first day of the calendar month following the month in which the Date of Termination falls.
(k)      "Code" shall mean the Internal Revenue Code of 1986, as amended.

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(l)      "Committee" shall mean the Compensation Committee of the Board.
(m)      "Company" shall mean Contura Energy Services, LLC, a Delaware limited liability company, and its parent entities, Subsidiaries and Affiliates as may employ Participant from time to time; provided that a Subsidiary which ceases to be, directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with Contura prior to a Change in Control (other than in connection with and as an integral part of a series of transactions resulting in a Change in Control) shall, automatically and without any further action, cease to be (or be a part of) the Company and its Affiliates for purposes hereof.
(n)      "Covered Change in Control Termination" shall mean, with respect to a Participant, if, during the 90-day period immediately preceding a Change in Control, or on or within the one-year period immediately following a Change in Control, the occurrence of an Involuntary Termination Associated with a Change in Control.
(o)      "Covered Termination Prior to Change in Control" shall mean, at any time prior to the 90-day period immediately preceding a Change in Control, the Participant's involuntary Separation from Service with the Company by the Company and any Affiliate for any reason other than (i) Cause, (ii) the Participant's death, or (iii) the Participant's Disability.
(p)      "Date of Termination" shall mean the date on which a Covered Change in Control Termination or Covered Termination Prior to Change in Control occurs, as the case may be.
(q)      "Disability" shall mean the Participant's physical or mental incapacity to perform his or her usual duties with such condition likely to remain continuously and permanently as determined by the Company.
(r)      "Effective Date" shall mean July 26, 2016.
(s)      "Good Reason" shall mean the Participant's Separation from Service by the Participant as a result of the occurrence, without the Participant's written consent, of one of the following events:
(i)    A material reduction in the Participant's (A) annual Base Pay or (B) Target Bonus opportunity (unless such reduction in (A) and/or (B) relates to an across-the-board reduction similarly affecting Participant and all or substantially all other executives of the Company and its Affiliates);
(ii)    A failure to provide Participant with the opportunity to materially participate in any material equity-based plans of the Company and its Affiliates on a similar basis to those of other similarly situated executives of the Company and its Affiliates;
(iii)    The Company makes or causes to be made a material adverse change in the Participant's scope of duties or responsibilities which results in a significant diminution in the Participant's scope of duties or responsibilities, except in connection with (A) a reassignment to a New Job Position, or (B) a termination of Participant's employment with

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the Company for Disability, Cause, death, or temporarily as a result of Participant's incapacity or other absence for an extended period;
(iv)    A relocation of the Company's principal place of business, or of Participant's own office as assigned to Participant by the Company to a location that increases Participant's normal work commute by more than 50 miles; or
(v)    The Company or the Board engages in any illegal activity or material violation of governmental laws, rules or regulations in connection with the Company and/or its Affiliates; provided, that such illegal activity or material violation has a material adverse effect on the Company and its Affiliates, taken as a whole, thereby causing a material adverse change in the conditions under which Participant's services are to be performed.
In order for Participant to terminate for Good Reason, (A) the Company must be notified by Participant in writing within 90 days of the event constituting Good Reason, (B) the event must remain uncorrected by the Company for 30 days following such notice (the "Notice Period"), and (C) such termination must occur within 60 days after the expiration of the Notice Period.
(t)      "Involuntary Termination Associated With a Change in Control" means the Participant's Separation from Service related to a Change in Control: (i) by the Company and any Affiliate for any reason other than (A) Cause, (B) the Participant's death, or (C) the Participant's Disability; or (ii) on account of a Good Reason termination of employment by the Participant.
(u)      "New Job Position" shall mean a change in the Participant's position, authority, duties or responsibilities with the Company or any Affiliate due to the Participant's demonstrated inadequate or unsatisfactory performance, provided the Participant had been notified of such inadequate performance and had been given at least 30 days to cure such inadequate performance.
(v)      "Notice of Termination" shall mean a notice given by the Company or Participant, as applicable, which shall indicate the specific termination provision in the Plan relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Participant's employment under the provisions so indicated.
(w)      "Participant" shall have the meaning ascribed by Article 3.
(x)      "Plan" shall mean this Contura Energy, Inc. Key Employee Separation Plan, as it may be amended from time to time in accordance with Article 7.
(y)      "Plan Administrator" shall have the meaning ascribed by Article 12.
(z)      "Release" shall have the meaning ascribed by Section 4.5.
(aa)      "Securities Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.

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(bb)      "Separation from Service" shall mean a Participant's termination of employment with the Company and all of its controlled group members within the meaning of Section 409A of the Code. The determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that the language "at least 50 percent" shall be used instead of "at least 80 percent" in each place it appears in Section 1563(a)(1),(2) and (3) of the Code and Treas. Reg. Sec. 1.414(c)-2; provided, further, where legitimate business reasons exist (within the meaning of Treas. Reg. Sec. 1.409A-1(h)(3)), the language "at least 20 percent" shall be used instead of "at least 80 percent" in each place it appears. Whether a Participant has Separated from Service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A. A Participant will be presumed to have experienced a Separation from Service when the level of bona fide services performed permanently decreases to a level less than twenty percent (20%) of the average level of bona fide services performed during the immediately preceding thirty-six (36)-month period or such other period as provided by regulation.
(cc)      "Service Period" shall mean the number of months of additional service credit (24, 18 or 12) which has been assigned to each Participant for purposes of determining the Participant's benefit under Section 4.2(a)(v) and Section 4.3(a)(v), as the case may be, and which Service Period may be different for each of Section 4.2(a)(v) and Section 4.3(a)(v).
(dd)      "Six Month Payment Date" means the six (6) month anniversary of the Date of Termination.
(ee)      "Stock" shall mean the common stock, par value $.01 per share, of Contura.
(ff)      "Subsidiary" shall mean any Company controlled entity.
(gg)      "Target Bonus" shall mean 100% of the annual bonus which is established by the Committee or the Board, as applicable.
ARTICLE 3.      PARTICIPATION
3.1     Employees of the Company or any Affiliate who are determined by the Committee, as provided in Article 5, to be responsible for the continued growth, development and future financial success of the Company shall be eligible to participate in the Plan. Any such employee selected to participate in the Plan shall be referred to herein as "Participant". The initial Participants and their respective Benefit Factors and Service Periods shall be selected and approved by the Committee. The Company, in its discretion, may add Participants to the Plan and assign and approve for each of them their respective Benefit Factors and Service Periods, from time to time, and shall periodically review and update the list of Participants.
3.2    Notwithstanding the foregoing and subject to Section 7.2, the Committee may terminate a Participant's participation in the Plan at any time, in its sole and absolute discretion. Subject to Section 7.2, a termination of Participant's employment with the Company and any Affiliate except under the circumstances described in Section 4.2 and Section 4.3, shall automatically, with no further act on the part of the Company or any Affiliate, terminate any right of such Participant to participate, or receive any benefits under, this Plan.

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ARTICLE 4.      BENEFITS
4.1      Change in Control Bonus Payment . During Participant's employment with the Company, in the event of a Change in Control, Participant shall be entitled to receive a lump sum cash payment equal to a pro rata Target Bonus for the year in which the Change in Control occurs, which shall be based on the portion of such year that Participant was employed by the Company and any Affiliate prior to the effective date of the Change in Control. Such payment, if any, shall be made contemporaneous with the Change in Control, or as soon as administratively feasible thereafter (but in no event later than 60 days following the effective date of the Change in Control).
4.2      If a Covered Change in Control Termination occurs with respect to a Participant, then such Participant shall be entitled hereunder to the following:
(a)      Compensation and Benefits Upon Covered Change in Control Termination . Subject to Participant's execution of the Release as provided in Section 4.5, in the event of a Covered Change in Control Termination, the Company shall pay and provide to the Participant:
(i)    (A) any Base Pay earned, accrued or owing to him or her through the Date of Termination, (B) any individual bonuses or individual incentive compensation not yet paid, but due and payable under the Company's and/or its Affiliates' plans for years prior to the year of Participant's termination of employment, (C) reimburse Participant for all reasonable and customary expenses incurred by Participant in performing services for the Company prior to the Date of Termination, and (D) payment equal to the amount of accrued, but unused, vacation time.
(ii)     A lump sum cash payment equal to the applicable Benefit Factor multiplied by: (A) Participant's Base Pay in effect as of the Date of Termination; plus (B) Participant's Target Bonus for the year in which the Date of Termination occurs.
(iii)    A pro rata share of any individual annual cash incentive bonuses or individual annual cash incentive compensation, based on the target levels set for such bonuses, under the Company's and its Affiliates' applicable plans for the year of Participant's termination of employment based on the portion of such year that Participant was employed by the Company and any Affiliate.
(iv)    To the extent permitted by applicable law and the Benefit Plans, the Company shall maintain Participant's paid coverage for health insurance (through the payment of Participant's COBRA premiums) and other dental and life insurance benefits (through the reimbursement of Participant's premiums upon conversion to an individual policy) until the earlier to occur of: (a) Participant obtaining the age of 65, (b) the date Participant is provided by another employer benefits substantially comparable to the benefits provided by the Benefit Plans (which Participant must provide prompt notice with respect thereto to the Company), or (c) the expiration of the COBRA Continuation Period. During the applicable period of coverage described in the foregoing sentence, Participant shall be entitled to benefits, on substantially the same basis as would have otherwise been provided had Participant not been terminated and the Company will have no obligation to pay any benefits to, or premiums on behalf of, Participant after such period ends. To the extent that such benefits are available under the Benefit Plans and Participant had such coverage

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immediately prior to termination of employment, such continuation of benefits for Participant shall also cover Participant's dependents for so long as Participant is receiving such benefits under this Section 4.2(a)(iv). The COBRA Continuation Period for medical and dental insurance under this Section 4.2(a)(iv) shall be deemed to run concurrent with the continuation period federally mandated by COBRA (generally 18 months), or any other legally mandated and applicable federal, state, or local coverage period for benefits provided to terminated employees under the health care plan. Participant shall be entitled to reimbursement of life insurance premiums as provided in this Section 4.2(a)(iv) in accordance with and subject to the following limitations and provisions: (1) reimbursement will be available only to the extent such expense is actually incurred for any particular calendar year and reasonably substantiated; (2) reimbursement shall be made no later than the end of the calendar year following the year in which such expense is incurred by Participant; (3) no reimbursement will be provided for any expense which relates to insurance coverage after the applicable period of coverage provided in this Section 4.2(a)(iv); and (4) any life insurance premiums incurred prior to the six (6) month anniversary of the Date of Termination shall not be reimbursed prior to the six (6) month anniversary of such Date of Termination.
(v)    Reserved.
(vi)    A lump sum cash payment of $15,000 in order to cover the cost of outplacement assistance services for Participant and other expenses associated with seeking another employment position.
(vii)    All payments to be made pursuant to this Section 4.2 shall be made, in lump sum, no later than 60 days after the Date of Termination; provided, however, that all payments due under Section 4.2(a)(iv) shall be made as provided thereunder, and all payments due under Section 4.2(a)(i)(B) shall be paid no later than the time provided for under the applicable plan or arrangement in accordance with the applicable plan or arrangement terms.
4.3      If a Covered Termination Prior to Change in Control occurs with respect to a Participant, then such Participant shall be entitled hereunder to the following:
(a)      Compensation and Benefits Upon Covered Termination Prior to Change in Control . Subject to Participant's execution of the Release described in Section 4.5, in the event of a Covered Termination Prior to Change in Control, the Company shall pay and provide to the Participant after his or her Date of Termination:
(i)      (A) any Base Pay earned, accrued or owing to him or her through the Date of Termination, (B) any individual bonuses or individual incentive compensation not yet paid, but due and payable under the Company's and/or its Affiliates' plans for years prior to the year of Participant's termination of employment, (C) reimburse Participant for all reasonable and customary expenses incurred by Participant in performing services for the Company prior to the Date of Termination, and (D) payment equal to the amount of accrued, but unused, vacation time.
(ii)      A lump sum cash payment equal to the applicable Benefit Factor multiplied by: (A) Participant's Base Pay in effect as of the Date of Termination; plus (B) Participant's Target Bonus for the year in which the Date of Termination occurs.

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(iii)    A pro rata share of any individual annual cash incentive bonuses or individual annual cash incentive compensation, based on the target levels set for such bonuses, under the Company's and its Affiliates' applicable plans for the year of Participant's termination of employment based on the portion of such year that Participant was employed by the Company and any Affiliate.
(iv)      To the extent permitted by applicable law and the Benefit Plans, the Company shall maintain Participant's paid coverage for health insurance (through the payment of Participant's COBRA premiums) and other dental and life insurance benefits (through the reimbursement of Participant's premiums upon conversion to an individual policy) until the earlier to occur of: (a) Participant obtaining the age of 65, (b) the date Participant is provided by another employer benefits substantially comparable to the benefits provided by the Benefit Plans (which Participant must provide prompt notice with respect thereto to the Company), or (c) the expiration of the COBRA Continuation Period. During the applicable period of coverage described in the foregoing sentence, Participant shall be entitled to benefits, on substantially the same basis as would have otherwise been provided had Participant not been terminated and the Company will have no obligation to pay any benefits to, or premiums on behalf of, Participant after such period ends. To the extent that such benefits are available under the Benefit Plans and Participant had such coverage immediately prior to termination of employment, such continuation of benefits for Participant shall also cover Participant's dependents for so long as Participant is receiving such benefits under this Section 4.3(a)(iv). The COBRA Continuation Period for medical and dental insurance under this Section 4.3(a)(iv) shall be deemed to run concurrent with the continuation period federally mandated by COBRA (generally 18 months), or any other legally mandated and applicable federal, state, or local coverage period for benefits provided to terminated employees under the health care plan. Participant shall be entitled to reimbursement of life insurance premiums as provided in this Section 4.3(a)(iv) in accordance with and subject to the following limitations and provisions: (1) reimbursement will be available only to the extent such expense is actually incurred for any particular calendar year and reasonably substantiated; (2) reimbursement shall be made no later than the end of the calendar year following the year in which such expense is incurred by Participant; (3) no reimbursement will be provided for any expense which relates to insurance coverage after applicable period of coverage provided in this Section 4.3(a)(iv); and (4) any life insurance premiums incurred prior to the six (6) month anniversary of the Date of Termination shall not be reimbursed prior to the six (6) month anniversary of such Date of Termination.
(v)      Reserved.
(vi)      A lump sum cash payment of $15,000 in order to cover the cost of outplacement assistance services for Participant and other expenses associated with seeking another employment position.
(vii)      All payments to be made pursuant to this Section 4.3 shall be made, in lump sum, no later than 60 days after the Date of Termination; provided, however, that all payments due under Section 4.3(a)(iv) shall be made as provided thereunder, and all payments due under Section 4.3(a)(i)(B) and Section 4.3(a)(iii) shall be paid no later than the time provided for under the applicable plan or arrangement in accordance with the applicable plan or arrangement terms.

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4.4      Vesting of Equity . With respect to any equity awards or grants made by the Company or any Affiliate after the Effective Date of this Plan and notwithstanding any provision to the contrary in any applicable plan, program or agreement, upon a termination of Participant's employment with the Company and any Affiliate pursuant to Section 4.2 or Section 4.3, as the case may be, all stock options, restricted stock and other equity rights held by Participant will become fully vested and/or exercisable, as the case may be, on the Date of Termination, and all stock options held by Participant shall remain exercisable until the earlier to occur of: (a) the expiration date of the applicable option term or (b) the one (1) year anniversary of Participant's Date of Termination; provided, however, that the payment of performance-based awards will continue to be subject to the attainment of the performance goals as specified in the applicable plan or award agreement.
4.5      Release . Notwithstanding any other provision of the Plan to the contrary, no payment or benefit otherwise provided for under or by virtue of Section 4.2, Section 4.3 and/or Section 4.4 of the Plan shall be paid or otherwise made available unless and until the Participant executes and does not revoke a general release, non-disparagement and non-competition agreement, in a form provided by the Company and substantially as attached as Exhibit A hereto (the "Release"). Unless otherwise required by applicable law, the Release must be executed by the Participant within 45 days of the Date of Termination. If the Company determines that the Participant has not fully complied with any of the terms of the Release, the Company and any Affiliate may withhold benefits described in Sections 4.2, 4.3 and/or 4.4 not yet in pay status or discontinue the payment of such benefits and may require the Participant, by providing written notice of such repayment obligation to the Participant, to repay any portion or such benefits already received under the Plan. If the Company notifies a Participant that repayment of all or any portion of the benefits received under the Plan is required, such amounts shall be repaid within 30 calendar days of the date written notice is sent. Any remedy under this Section 4.5 shall be in addition to, and not in place of, any other remedy, including injunctive relief, that the Company and any Affiliate may have.
4.6      WARN . Notwithstanding any other provision of the Plan to the contrary, to the extent permitted by the Worker Adjustment and Retraining Notification Act ("WARN"), any benefit payable hereunder to a Participant as a consequence of the Participant's Covered Change in Control Termination or Covered Termination Prior to a Change in Control, as the case may be, shall be reduced by any amounts required to be paid under Section 2104 of WARN to such Participant in connection with such termination.
4.7      Termination of Employment on Account of Disability, Cause or Death . Notwithstanding anything in this Plan to the contrary, if the Participant's employment with the Company and any Affiliate terminates on account of Disability, Cause or because of his or her death, the Participant shall not be considered to have terminated employment under Section 4.2 or Section 4.3 of this Plan and shall not receive benefits pursuant to Section 4.2, Section 4.3 and/or Section 4.4 hereof. Notwithstanding, the Participant shall be entitled to receive disability benefits under any disability program then maintained by the Company or any Affiliate that covers the Participant as provided under the terms of such disability program.
ARTICLE 5.      ADMINISTRATION
5.1      The Plan shall be administered by the Committee appointed by the Board.

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5.2      The Committee shall have the full and absolute power, authority and sole discretion to construe, interpret and administer the Plan, to make factual determinations, to correct deficiencies therein, and to supply omissions, including resolving any ambiguity or uncertainty arising under or existing in the terms and provisions of the Plan, which determinations shall be final, conclusive, and binding on the Company, its Affiliates, the Participant and any and all interested parties.
5.3      The Committee may delegate any and all of its powers and responsibilities hereunder to other persons by formal resolution filed with, and accepted by, the Board. Any such delegation may be rescinded at any time by written notice from the Committee to the person to whom delegation is made.
5.4      The Committee shall have the full and absolute authority to employ and rely on such legal counsel, actuaries and accountants (which may also be those of the Company and its Affiliates), and other agents, designees and delegatees, as it may deem advisable to assist in the administration of the Plan.
5.5      Payments to be made under this Plan are intended to be excepted from coverage under Section 409A of the Code and the regulations promulgated thereunder and shall be construed accordingly. Notwithstanding any provision of this Plan to the contrary, if any benefit provided under this Plan is subject to the provisions of Section 409A of the Code and the regulations issued thereunder (and not excepted therefrom), the provisions of the Plan shall be administered, interpreted and construed in a manner necessary to comply with Section 409A, the regulations issued thereunder (or disregarded to the extent such provision cannot be so administered, interpreted, or construed). Accordingly, if a Participant is a "specified employee for purposes of Section 409A " (as such term is defined in Section 409A of the Code, and determined in accordance with the procedures established by the Company) and a payment subject to Section 409A to the Participant is due upon Separation from Service, such payment shall be delayed for a period of six (6) months after the date the Participant Separates from Service (or, if earlier, the death of the Participant). The Company reserves the right to accelerate, delay or modify distributions to the extent permitted under Section 409A, the regulations and other binding guidance promulgated thereunder.
ARTICLE 6.      PARACHUTE TAX PROVISIONS
6.1      The provisions of this Article 6 shall apply notwithstanding anything in this Plan to the contrary. In the event that it shall be determined that any payment or distribution by the Company or its Affiliates to, or for the benefit of, the Participant, whether paid or payable or distributed or distributable pursuant to the terms of this Plan or otherwise (a "Payment"), would constitute an "excess parachute payment" within the meaning of Section 280G of the Code, the Company and its Affiliates will apply a limitation on the Payment amount as specified in Section 6.2 unless it is determined that the "Net After Tax Benefits" to the Participant would be greater if the limitations of Section 6.2 were not imposed. For purposes of this Article 6, "Net After Tax Benefits" shall mean the present value of the Payments net of all taxes imposed on the Participant with respect thereto, including but not limited to excise taxes imposed under Section 4999 of the Code, determined by applying the highest marginal income tax rate applicable to the Participant for such year.
6.2      To the extent required by ‎Section 6.1 above, the aggregate present value of the Payments under Article 4 of this Plan ("Plan Payments") shall be reduced (but not below zero) to

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the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Plan Payments without causing any Payment to be subject to the limitation of deduction under Section 280G of the Code. For purposes of this Article 6, "present value" shall be determined in accordance with Section 280G(d)(4) of the Code. The total reduction to Plan Payments required under this Article 6 necessary to achieve the Reduced Amount shall be made against Plan Payments that are exempt from Section 409A.
6.3      Except as set forth in the next sentence, all determinations to be made under this Article 6 shall be made by the nationally recognized independent public accounting firm used by the Company immediately prior to the Change in Control ("Accounting Firm"), which Accounting Firm shall provide its determinations and any supporting calculations to the Company and the Participant within ten (10) days of the Participant's Date of Termination; provided, however, that, in the event the Accounting Firm will not or cannot make such a determination, the Company and its Affiliates shall select Deloitte & Touche or such other appropriate firm to make such determination. The value of the Participant's non-competition covenant under Section 4 of the Release shall be determined by independent appraisal by a nationally-recognized business valuation firm, and a portion of the Plan Payments shall, to the extent of that appraised value, be specifically allocated as reasonable compensation for such non-competition covenant and shall not be treated as a parachute payment.
6.4      All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Article 6 shall be borne solely by the Company and its Affiliates.
ARTICLE 7.      AMENDMENT AND TERMINATION
7.1      Subject to Section 7.2, the Committee shall have the right in its discretion at any time to amend the Plan in any respect or to terminate the Plan prior to a Change in Control.
7.2      Notwithstanding any other provision of the Plan to the contrary, the Plan (including, without limitation, this Section 7.2) as applied to any particular Participant may not be amended or terminated at any time within the 90 day period immediately prior to, on or within one (1) year after the occurrence of a Change in Control in any manner adverse to the interests of such Participant, without the express written consent of such Participant, except in the event (a) of a termination of Participant's employment with the Company and its Affiliates under the circumstances described in Section 4.7 and/or (b) the Committee determines to amend the Plan in order to conform the provisions of the Plan with Section 409A of the Code, the regulations issued thereunder or an exception thereto, regardless of whether such modification, amendment, or termination of the Plan shall adversely affect the rights of a Participant under the Plan
ARTICLE 8.      EMPLOYMENT RIGHTS
Nothing expressed or implied in this Plan will create any right or duty on the part of the Company, any Affiliate or the Participant to have the Participant remain in the employment of the Company or any Affiliate.
ARTICLE 9.      MISCELLANEOUS

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9.1      (a)    The Company and its Affiliates shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company and its Affiliates (taken as a whole) expressly to assume and agree to perform under the terms of the Plan in the same manner and to the same extent that the Company and its Affiliates would be required to perform it if no such succession had taken place (provided that such a requirement to perform which arises by operation of law shall be deemed to satisfy the requirements for such an express assumption and agreement), and in such event the Company and its Affiliates (as constituted prior to such succession) shall have no further obligation under or with respect to the Plan. Failure of the Company and its Affiliates to obtain such assumption and agreement with respect to any particular Participant prior to the effectiveness of any such succession shall be a breach of the terms of the Plan with respect to such Participant and shall constitute Good Reason for purposes of this Plan. Effective upon a transfer or assignment of this Plan, the term "Company" shall mean any successor to the Company's business or assets as aforesaid which assumes and agrees (or is otherwise required) to perform the Plan. Nothing in this Section 9.1(a) shall be deemed to cause any event or condition which would otherwise constitute a Change in Control not to constitute a Change in Control.
(b)    To the maximum extent permitted by law, the right of any Participant or other person to any amount under the Plan may not be subject to voluntary or involuntary anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment by creditors of the Participant or such other person.
(c)    The terms of the Plan shall inure to the benefit of and be enforceable by the personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees of each Participant. If a Participant shall die while an amount would still be payable to the Participant hereunder if they had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Plan to the Participant's devisee, legatee or other designee or, if there is no such designee, their estate.
9.2      Except as expressly provided in Section 4.2 and Section 4.3, Participants shall not be required to mitigate damages or the amount of any payment or benefit provided for under the Plan by seeking other employment or otherwise, nor will any payments or benefits hereunder be subject to offset in the event a Participant does mitigate.
9.3      Notwithstanding any provision of this Plan to the contrary, the Company shall not be liable for, and nothing provided or contained in this Plan will be construed to obligate or cause the Company to be liable for, any tax, interest or penalties imposed on a Participant related to or arising with respect to any violation of Section 409A.
9.4      All notices under the Plan shall be in writing, and if to the Company or the Committee, shall be delivered to the General Counsel of Contura, or mailed to Contura's principal office, addressed to the attention of the General Counsel of Contura; and if to a Participant (or the estate or beneficiary thereof), shall be delivered personally or mailed to the Participant at the address appearing in the records of the Company and its Affiliates.
9.5      Unless otherwise determined by the Company in an applicable plan or arrangement, no amounts payable hereunder upon a Covered Termination Prior to Change in Control or a Covered

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Change in Control Termination, as the case may be, shall be deemed salary or compensation for the purpose of computing benefits under any employee benefit plan or other arrangement of the Company and/or any Affiliate for the benefit of employees unless the Company shall determine otherwise.
9.6      Participation in the Plan shall not limit any right of a Participant to receive any payments or benefits under any employee benefit or executive compensation plan of the Company and/or its Affiliates; provided that in no event shall any Participant be entitled to any payment or benefit under the Plan which duplicates a payment or benefit received or receivable by the Participant under any severance or similar plan, agreement or policy of the Company and/or its Affiliates. The total reduction to Plan payments or benefits as required by this Section 9.6 shall be made against payments and/or benefits under the Plan that are exempt from Section 409A.
9.7      Any payments hereunder shall be made out of the general assets of the Company. Each Participant shall have the status of general unsecured creditors of the Company, and the Plan constitutes a mere promise by the Company to make payments under the Plan in the future as and to the extent provided herein.
9.8      The Company shall be entitled to withhold from any payments or deemed payments any amount of tax withholding required by law.
9.9      The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan which shall remain in full force and effect.
9.10      The use of captions in the Plan is for convenience. The captions are not intended to and do not provide substantive rights.
9.11      Except as otherwise preempted by the laws of the United States, the Plan shall be construed, administered and enforced according to the laws of the State of Delaware, without regard to principles of conflicts of law, and any action relating to this Plan must be brought in state and federal courts located in the Commonwealth of Virginia.
ARTICLE 10.      CLAIMS PROCEDURE
If a Participant believes that he or she is eligible for benefits and has not been so notified, such Participant should submit a written request for benefits to the Plan Administrator. Such Participant must take such action no later than 60 days after Separation from Service.
If Participant Claim is Denied
If all or part of a Participant's claim for benefits is denied, such Participant will receive written notice of the denial from the Plan Administrator within 60 days after such Participant has applied for a benefit. This notice will include:
*
the specific reason(s) for the denial;
*
specific reference to the specific Plan provisions on which the denial is based;

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*
a description of any additional material or information which must be submitted to perfect the claim, and an explanation of why such material or information is necessary; and
*
an explanation of the Plan's review procedure.
If a Participant disagrees with the decision, such Participant may file a written notice to have such Participant's claim reviewed by the Plan Administrator. The Participant must file the notice for review within 60 days after the denial was given or mailed to such Participant. The Participant should file one copy of the notice with the Plan Administrator. In connection with the review of Participant's claim, Participant (or such Participant's authorized representative) will be given the opportunity to review all documentation pertaining to the decision, and to submit issues and comments in writing.
Participant's claim will be reconsidered and Participant will receive written notice of the decision within 60 days after receiving such Participant's application for review. If special circumstances require an extension, Participant will receive written notice to that effect; in this case, Participant will be informed of the final decision within 120 days. This decision will be in writing and will include the reason for the decision, with specific reference to pertinent Plan provisions. All interpretations, determinations and decisions of the Plan Administrator will be final and binding.
If a Participant's claim for benefits is denied in whole or in part, such Participant may file suit in a state or federal court. Notwithstanding, before such Participant may file suit in a state or federal court, Participant must exhaust the Plan's administrative claims procedure. If any such judicial or administrative proceeding is undertaken, the evidence presented will be strictly limited to the evidence timely presented to the Plan Administrator. In addition, any such judicial or administrative proceeding must be filed within six (6) months after the Plan Administrator's final decision.
ARTICLE 11.      STATEMENT OF ERISA RIGHTS
As a Participant in the Plan, each Participant is entitled to certain rights and protections under ERISA. ERISA provides that all Participants shall be entitled to:
Receive Information About the Plan and Benefits
Examine, without charge, at the Plan Administrator's office, all documents governing the Plan.
Obtain, upon written request to the Plan Administrator, copies of documents governing the operation of the Plan and an updated summary plan description. The Plan Administrator may make a reasonable charge for the copies.
Prudent Actions by Plan Fiduciaries
In addition to creating rights for Participants, ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a duty to do so prudently and in the interest of Participants

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and beneficiaries. No one, including a Participant's employer or any other person, may fire such Participant or otherwise discriminate against a Participant in any way to prevent such Participant from obtaining a welfare benefit or exercising such Participant's rights under ERISA. However, this rule neither guarantees continued employment, nor affects the Company's right to terminate a Participant's employment for other reasons.
Enforce Participant Rights
If a Participant's claim for a benefit is denied or ignored, in whole or in part, a Participant has a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules.
Under ERISA, there are steps a Participant can take to enforce the above rights. For instance, if a Participant requests a copy of Plan documents and does not receive them within 30 days, such Participant may file suit in a Federal court. In such a case, the court may require the Plan Administrator to provide the materials and pay such Participant up to $110 a day until Participant receives the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator. If a Participant has a claim for benefits which is denied or ignored, in whole or in part, such Participant may file suit in a state or Federal court. If a Participant is discriminated against for asserting such Participant's rights, such Participant may seek assistance from the U.S. Department of Labor, or may file suit in a Federal court. The court will decide who should pay court costs and legal fees. If a Participant is successful, the court may order the person such Participant has sued to pay these costs and fees. If a Participant loses, the court may order such Participant to pay these costs and fees, for example, if it finds such Participant's claim is frivolous.
Assistance with Participant Question
If a Participant has any questions about the Plan, such Participant should contact the Plan Administrator. If a Participant has any questions about this statement or about such Participant's rights under ERISA, or if a Participant needs assistance in obtaining documents from the Plan Administrator, such Participant should contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in such Participant's telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210. A Participant may also obtain certain publications about such Participant's rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration.
ARTICLE 12.      SUMMARY INFORMATION
Name of Plan : The name of the plan under which benefits are provided is the Contura Energy, Inc. Key Employee Separation Plan.
Plan Sponsor : The Sponsor of the Plan is:
Contura Energy, Inc.
P.O. Box 848
340 Martin Luther King Jr. Blvd.
Bristol, TN 37620

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Plan Administrator : The Plan Administrator of the Plan is:
The Compensation Committee of the Board of Directors
of Contura Energy, Inc.
P.O. Box 848
340 Martin Luther King Jr. Blvd.
Bristol, TN 37620
Employer Identification Number and Plan Number : The Employer Identification Number (EIN) assigned to the Plan Sponsor by the Internal Revenue Service is 81-3015061.
Type of Plan : Severance Pay Employee Welfare Benefit Plan.
Type of Administration : The Plan is self-administered.
Funding : Benefits payable under the Plan are provided from the general assets of the Company.
Agent for Service of Legal Process : For disputes arising under the Plan, service of legal process may be made upon the General Counsel of Plan Sponsor.
Plan Year : The Plan's fiscal records are kept on a calendar year basis (January 1 to December 31).


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EXHIBIT A
GENERAL RELEASE, NON-DISPARAGEMENT AND NON-COMPETITION AGREEMENT
THIS GENERAL RELEASE, NON-DISPARAGEMENT AND NON-COMPETITION AGREEMENT (the "Agreement") is made as of this _____ day of ___________, _____, by and between ________________________________ (the "Company") and ___________________ ("Employee").
WHEREAS, the Employee formerly was employed by the Company;
WHEREAS, Employee was designated by the Compensation Committee of the Board of Directors (the "Board") of Contura Energy, Inc. to receive certain severance benefits in the event of a termination of Employee's employment under the circumstances set forth in the Key Employee Separation Plan (the "Plan") and;
WHEREAS, an express condition of the Employee's entitlement to the payments and benefits under the Plan is the execution without revocation of this Agreement; and
WHEREAS, the Employee and the Company mutually desire to effectuate a full and final general release of all claims and rights the Employee may have against the Company to the fullest extent permitted by law, excepting only those rights and claims that cannot, as a matter of law, be released with this Agreement; and
WHEREAS, the Employee and the Company mutually desire to terminate the Employee's employment effective _____________ ____, ____ ("Date of Termination"); and
WHEREAS, the Company advises the Employee to consult with an attorney before signing this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED by and between the Employee and the Company as follows:
1. (a)    The Employee, for and in consideration of the commitments of the Company as set forth in paragraph 7 of this Agreement and the Plan, and intending to be legally bound, does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, predecessors, subsidiaries and parents, and their present or former officers, directors, managers, stockholders, employees, members and agents, and its and their respective successors, assigns, heirs, executors, and administrators and the current and former trustees or administrators of any pension or other benefit plan applicable to the employees or former employees of the Company (collectively, "Releasees") from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which the Employee ever had, now has, or hereafter may have, whether known or unknown, or which the Employee's heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from any time prior to the date of this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to the Employee's employment relationship with the Company, the terms and conditions of that employment relationship, and the termination of that employment relationship, including, but not

    


limited to, any claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Employee Retirement Income Security Act of 1974, and any other claims under any federal, state or local common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for attorneys' fees and costs. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, implied or express contract or discrimination of any sort.
(b)      To the fullest extent permitted by law, and subject to the provisions of paragraph 12 and paragraph 14 below, the Employee represents and affirms that the Employee has not filed or caused to be filed on the Employee's behalf any charge, complaint or claim for relief against the Company or any Releasee and, to the best of the Employee's knowledge and belief, no outstanding charges, complaints or claims for relief have been filed or asserted against the Company or any Releasee on the Employee's behalf; and the Employee has not reported any improper, unethical or illegal conduct or activities to any supervisor, manager, department head, human resources representative, agent or other representative of the Company or any Releasee, to any member of the Company's or any Releasee's legal or compliance departments, or to the ethics hotline, and has no knowledge of any such improper, unethical or illegal conduct or activities. In the event that there is outstanding any such charge, complaint or claim for relief, Employee agrees to seek its immediate withdrawal and dismissal with prejudice. In the event that for any reason said charge, complaint or claim for relief cannot be immediately withdrawn with prejudice, Employee shall execute such other papers or documents as the Company's counsel determines may be necessary from time to time to have said charge, complaint or claim for relief dismissed with prejudice at the earliest appropriate time. Nothing herein shall prevent Employee from testifying in any cause of action when required to do so by process of law. Employee shall promptly inform the Company if called upon to testify on matters relating to the Company.
(c)      Employee does not waive any right to file a charge with the Equal Employment Opportunity Commission ("EEOC") or participate in an investigation or proceeding conducted by the EEOC, but explicitly waives any right to file a personal lawsuit or receive monetary damages that the EEOC might recover if said charge results in an EEOC lawsuit against the Company or Releasees.
(d)      Employee does not waive the right to challenge the validity of this Agreement as a release of claims arising under the federal Age Discrimination in Employment Act.
(e)      Employee does not waive rights or claims that may arise after the date this Agreement is executed.
2. In consideration of the Company's agreements as set forth in paragraph 7 herein, the Employee agrees to comply with the limitations set forth in paragraphs 3 and 4 of this Agreement.
3.     Ownership and Protection of Intellectual Property and Confidential Information.
(a)      All information, ideas, concepts, improvements, innovations, developments, methods, processes, designs, analyses, drawings, reports, discoveries, and inventions, whether patentable or not or reduced to practice, which are conceived, made,

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developed or acquired by Employee, individually or in conjunction with others, during Employee's employment by the Company or any of its affiliates, both before and after the date hereof (whether during business hours or otherwise and whether on the Company's premises or otherwise) which relate to the business, products or services of the Company or its affiliates (including, without limitation, all such information relating to corporate opportunities, research, financial and sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their requirements, the identity of key contacts within the customer's organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names, marks, and any copyrightable work, trade mark, trade secret or other intellectual property rights (whether or not composing confidential information, and all writings or materials of any type embodying any of such items (collectively, "Work Product"), shall be the sole and exclusive property of the Company or a Company affiliate, as the case may be, and shall be treated as "work for hire." It is recognized that Employee is an experienced executive in the business of the Company and its affiliates and through several decades of prior work in the industry acquired and retains knowledge, contacts, and information which are not bound by this Section 3.
(b)      Employee shall promptly and fully disclose all Work Product to the Company and shall cooperate and perform all actions reasonably requested by the Company (whether during or after the term of employment) to establish, confirm and protect the Company's and/or its affiliates' right, title and interest in such Work Product. Without limiting the generality of the foregoing, Employee agrees to assist the Company, at the Company's expense, to secure the Company's and its affiliates' rights in the Work Product in any and all countries, including the execution by Employee of all applications and all other instruments and documents which the Company and/or its affiliates shall deem necessary in order to apply for and obtain rights in such Work Product and in order to assign and convey to the Company and/or its affiliates the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of Employee's mental or physical incapacity or for any other reason (including Employee's refusal to do so after request therefor is made by the Company) to secure Employee's signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product belonging to or assigned to the Company and/or its affiliates pursuant to Section 3(a) above, then Employee by this Agreement irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee's agent and attorney-in-fact to act for and in Employee's behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal force and effect as if executed by Employee. Employee agrees not to apply for or pursue any application for any United States or foreign patents or copyright registrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or have been or are required to be assigned to the Company or any of its affiliates.
(c)      Employee acknowledges that the businesses of the Company and its affiliates are highly competitive and that their strategies, methods, books, records, and documents, their technical information concerning their products, equipment, services, and processes, procurement procedures and pricing techniques, the names of and other information (such as credit and financial data) concerning their former, present or prospective customers and business

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affiliates, all comprise confidential business information and trade secrets which are valuable, special, and unique assets which the Company and/or its affiliates use in their business to obtain a competitive advantage over their competitors. Employee further acknowledges that protection of such confidential business information and trade secrets against unauthorized disclosure and use is of critical importance to the Company and its affiliates in maintaining their competitive position. Employee acknowledges that by reason of Employee's duties to, and association with, the Company and its affiliates, Employee has had and will have access to, and has and will become informed of, confidential business information which is a competitive asset of the Company and its affiliates. Employee hereby agrees that Employee will not, at any time during or after his or her employment by the Company, make any unauthorized disclosure of any confidential business information or trade secrets of the Company or its affiliates, or make any use thereof, except in the carrying out of his employment responsibilities hereunder. Employee shall take all necessary and appropriate steps to safeguard confidential business information and protect it against disclosure, misappropriation, misuse, loss and theft. Confidential business information shall not include information in the public domain (but only if the same becomes part of the public domain through a means other than a disclosure prohibited hereunder). The above notwithstanding, a disclosure shall not be unauthorized if (i) it is required by law or by a court of competent jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute resolution or other legal proceeding in which Employee's legal rights and obligations as an employee or under this Agreement are at issue; provided, however, that Employee shall, to the extent practicable and lawful in any such events, give prior notice to the Company of his or her intent to disclose any such confidential business information in such context so as to allow the Company or its affiliates an opportunity (which Employee will not oppose) to obtain such protective orders or similar relief with respect thereto as may be deemed appropriate. Any information not specifically related to the Company and its affiliates would not be considered confidential to the Company and its affiliates.
(d)      All written materials, records, and other documents made by, or coming into the possession of, Employee during the period of Employee's employment by the Company which contain or disclose confidential business information or trade secrets of the Company or its affiliates, or which relate to Employee's Work Product described in paragraph 3(a) above, shall be and remain the property of the Company, or its affiliates, as the case may be. Upon termination of Employee's employment, for any reason, Employee promptly shall deliver the same, and all copies thereof, to the Company.
4.     Covenant Not To Compete.
In the event of the Employee's Covered Change in Control Termination (as defined in the Plan) or Covered Termination Prior to a Change in Control (as defined in the plan), as the case may be, the Company's obligations to provide the payments and benefits set forth in Sections 4.2 or 4.3, as the case may be, of the Plan shall be expressly conditioned upon the Employee's covenants of confidentiality, not to compete and not to solicit as provided herein. In the event the Employee breaches his obligations to the Company as provided herein, the Company's obligations to provide the payments and benefits set forth in Sections 4.2 or 4.3, as the case may be, of the Plan shall cease without prejudice to any other remedies that may be available to the Company.

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(a)      If the Employee is receiving payment and benefits under Sections 4.2 or 4.3 of the Plan, Employee agrees that, for a period of one year following Employee's Date of Termination (the "Non-Compete Period"), he or she will not, in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of any corporation (or sub-unit, in the case of a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that the Company or any of its affiliates engages in or is planning to engage in during the term of Employee's employment with the Company or any affiliate of the Company, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (the "Business"). Such restriction shall cover Employee's activities anywhere in the contiguous United States.
(b)      If the Employee is receiving payments and benefits under Sections 4.2 or 4.3 of the Plan, during the Non-Compete Period, Employee will not solicit or induce any person who is or was employed by any of the Company or its affiliates at any time during such term or period (i) to interfere with the activities or businesses of the Company or any of its affiliates or (ii) to discontinue his or her employment with the Company or any of its affiliates.
(c)      If the Employee is receiving payments and benefits under Section 4.2 or Section 4.3, as the case may be, of the Plan, during the Non-Compete Period, Employee will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of the Company or any of its affiliates to divert their business to any competitor of the Company or any of its affiliates or in any way interfere with the relationship between any such customer, distributor or supplier and the Company and/or any of its affiliates (including, without limitation, making any negative statements or communications about the Company and its affiliates). During such Non-Compete Period, Employee will not, directly or indirectly, acquire or attempt to acquire any business in the contiguous United States to which the Company or any of its affiliates, prior to the Employee's Date of Termination, has made an acquisition proposal relating to the possible acquisition of such business by the Company or any of its affiliates, or has planned, discussed or contemplated making such an acquisition proposal (such business, an "Acquisition Target"), or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than the Company or any of its affiliates.
(d)      Employee understands that the provisions of paragraphs 4(a), 4(b) and 4(c) hereof may limit his ability to earn a livelihood in a business in which he or she is involved, but as a member of the management group of the Company and its affiliates he or she nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company and any its affiliates; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation, any amounts or benefits provided under Section 4.2 and Section 4.3, as the case may be, of the Plan, is sufficient to compensate Employee for the restrictions contained in paragraphs 4(a), 4(b) and 4(c) hereof. In consideration of the foregoing and in light of Employee's education, skills and abilities, Employee agrees that he will not assert that, and it should not be

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considered that, any provisions of paragraphs 4(a), 4(b) and 4(c) otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
(e)      If, at the time of enforcement of paragraphs 3 or 4 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Employee acknowledges that he or she is a member of the Company's and its affiliates' management group with access to the Company's and its affiliates' confidential business information and his services are unique to the Company and its affiliates. Employee therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in paragraphs 3 and 4 will be inadequate and that in the event of any such breach, the Company and its affiliates may, in addition to the other remedies which may be available to them at law, apply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with him or her) from the breach of such covenants and agreements and to enforce, or prevent any violations of, the provisions of this Agreement. In addition, in the event of a breach or violation by Employee of this paragraph 4, the Non-Compete Period set forth in this paragraph shall be tolled until such breach or violation has been cured.
(f)      Each of the covenants of paragraphs 3 and 4 are given by Employee as part of the consideration for the benefits to be received by Employee under the Plan and as an inducement to the Company to grant such benefits under the Plan and accept the obligations thereunder.
(g)      Provisions of paragraph 4 shall not be binding on Employee if the Company fails to perform any material obligation under the Plan, including, without limitation, the failure of the Company to make timely payments of monies due to Employee under Section 4.2 or Section 4.3, as the case may be, of the Plan; provided, that (i) Employee has notified the Company in writing within 30 days of the date of the failure of the Company to perform such material obligation and (ii) such failure remains uncorrected and/or uncontested by the Company for 15 days following the date of such notice.
5.    The Employee further agrees and recognizes that the Employee has permanently and irrevocably severed the Employee's employment relationship with the Company, that the Employee shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ him or her in the future. Employee agrees that if he submits an application for employment with the Company or any affiliated entity, such application may be summarily rejected without consideration and without notice to Employee.
6.    The Employee further agrees that the Employee will not disparage or subvert the Company or any Releasee, or make any statement reflecting negatively on the Company, its affiliated corporations or entities, or any of their officers, directors, managers, members, employees, agents or representatives, including, but not limited to, any matters relating to the operation or management

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of the Company or any Releasee, the Employee's employment and the termination of the Employee's employment, irrespective of the truthfulness or falsity of such statement.
7.    In consideration for the Employee's promises, as set forth herein, the Company agrees to pay or provide to or for the Employee the payments and benefits described in the Plan, the provisions of which are incorporated herein by reference. Except as set forth in this Agreement, it is expressly agreed and understood that Releasees do not have, and will not have, any obligations to provide the Employee at any time in the future with any payments, benefits or considerations other than those recited in this paragraph, or those required by law, other than under the terms of any benefit plans which provide benefits or payments to former employees according to their terms.
8.    The Employee understands and agrees that the payments, benefits and agreements provided in this Agreement are being provided to him or her in consideration for the Employee's acceptance and execution of, and in reliance upon the Employee's representations in, this Agreement. The Employee acknowledges that if the Employee had not executed this Agreement containing a release of all claims against the Releasees, including, without limitation, the covenants relating to confidentiality, non-competition and non-disparagement, the Employee would not have been entitled to the payments and benefits set forth in the Plan.
9.    The Employee acknowledges and agrees that this Agreement and the Plan supersede any other agreement the Employee has with the Company or any Releasee as to the subjects set forth in this Agreement. To the extent Employee has entered into any other enforceable written agreement with the Company or any Releasee that contains provisions that are outside the scope of this Agreement and the Plan and are not in direct conflict with the provisions in this Agreement or the Plan, the terms in this Agreement and the Plan shall not supercede, but shall be in addition to, any other such agreement. Except as set forth expressly herein, no promises or representations have been made to Employee in connection with the termination of the Employee's employment agreement, if any, or offer letter, if any, with the Company, or the terms of this Agreement or the Plan.
10    The Employee agrees not to disclose the terms of this Agreement or the Plan to anyone, except the Employee's spouse, attorney and, as necessary, tax/financial advisor. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this Agreement.
11.    The Employee represents that the Employee does not, without the Company's prior written consent, presently have in the Employee's possession any records and business documents, whether on computer or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, correspondence, files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the "Corporate Records") provided by the Company and/or its predecessors, subsidiaries or affiliates or obtained as a result of the Employee's prior employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by the Employee while employed by or rendering services to the Company and/or its predecessors, subsidiaries or affiliates. The Employee acknowledges that all such Corporate Records are the property of the Company. In addition, the Employee shall promptly return in good condition any and all Company owned equipment or property, including, but not limited to, automobiles, personal

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data assistants, facsimile machines, copy machines, pagers, credit cards, cellular telephone equipment, business cards, laptops, computers, and any other items requested by the Company. As of the Date of Termination, the Company will make arrangements to remove, terminate or transfer any and all business communication lines including network access, cellular phone, fax line and other business numbers.
12.    Nothing in this Agreement shall prohibit or restrict the Employee from: (i) making any disclosure of information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the Company's designated legal, compliance or human resources officers; or (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization.
13.    The parties agree and acknowledge that the agreement by the Company described herein, and the settlement and termination of any asserted or unasserted claims against the Releasees, are not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed by any of the Releasees to the Employee.
14.    The Employee agrees and recognizes that should the Employee breach any of the obligations or covenants set forth in this Agreement, the Company will have no further obligation to provide the Employee with the consideration set forth herein, and will have the right to seek repayment of all consideration paid up to the time of any such breach. Further, the Employee acknowledges in the event of a breach of this Agreement, Releasees may seek any and all appropriate relief for any such breach, including equitable relief and/or money damages, attorneys' fees and costs. Notwithstanding the foregoing, in the event the Company fails to perform any material obligation under the Plan, including, without limitation, the failure of the Company to make timely payments of monies due to Employee under Section 4.2 or Section 4.3, as the case may be, of the Plan, this Release shall be null and void and Employee shall have the right to pursue any and all appropriate relief for any such failure, including monetary damages, attorneys' fees and costs; provided, that (i) Employee has notified the Company in writing within 30 days of the date of the failure of the Company to perform such material obligation and (ii) such failure remains uncorrected and/or uncontested by the Company for 15 days following the date of such notice.
15.    The Employee further agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any violations of this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
16.    This Agreement and the obligations of the parties hereunder shall be construed, interpreted and enforced in accordance with the laws of the State of Delaware.
17.    The parties agree that this Agreement shall be deemed to have been made and entered into in Bristol, Virginia. Jurisdiction and venue in any proceeding by the Company or Employee

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to enforce their rights hereunder is specifically limited to any court geographically located in Virginia.
18.    The Employee certifies and acknowledges as follows:
(a)      That the Employee has read the terms of this Agreement, and that the Employee understands its terms and effects, including the fact that the Employee has agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action arising out of the Employee's employment relationship with the Company and the termination of that employment relationship; and
(b)      That the Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which the Employee acknowledges is adequate and satisfactory to him and which the Employee acknowledges is in addition to any other benefits to which the Employee is otherwise entitled; and
(c)      That the Company advises the Employee (in writing) to consult with an attorney before signing this Agreement; and
(d)      That the Employee does not waive rights or claims that may arise after the date this Agreement is executed; and
(e)      That the Company has provided Employee with a period of forty-five (45) days within which to consider this Agreement, and that the Employee has signed on the date indicated below after concluding that this General Release, Non‑Disparagement and Non-Competition Agreement is satisfactory to Employee; and
(f)      The Employee acknowledges that this Agreement may be revoked by him within seven (7) days after execution, and it shall not become effective until the expiration of such seven (7) day revocation period. In the event of a timely revocation by the Employee, this Agreement will be deemed null and void and the Company will have no obligations hereunder.
[SIGNATURE PAGE FOLLOWS]

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Intending to be legally bound hereby, the Employee and the Company executed the foregoing General Release, Non-Disparagement and Non-Competition Agreement this ______ day of ______________, _____.
 
 
Witness:
 
EMPLOYEE
 
 
 
 
 
 
 
 
[COMPANY]
 
 
 
 
 
 
 
 
By:
 
 
Witness:
 
Name:
 
 
 
 
Title:
 
 
 
 


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Exhibit 10.44

CONTURA ENERGY, INC.
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTOR COMPENSATION POLICY
This sets forth the Amended and Restated Non-Employee Director Compensation Policy (the “ Policy ”) of Contura Energy, Inc. (the “ Company ”), as adopted by the Board of Directors of the Company (the “ Board ”) effective as of December 14, 2017 (the “ Effective Date ”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Contura Energy, Inc. Management Incentive Plan (the “ Plan ”).
WHEREAS, the Board has determined that it is in the best interests of the Company to establish this Policy to set forth the compensation that will be payable to each member of the Board who is not an employee of the Company or of any subsidiary (each, an “ Eligible Director ”) as consideration for service on the Board.
NOW, THEREFORE, the Board hereby agrees as follows:
1.
General . The cash compensation and restricted stock unit awards described in this Policy will be paid or be made, as applicable, automatically and without further action of the Board, to each Eligible Director. For the avoidance of doubt, any member of the Board who is not an Eligible Director will not be entitled to cash, equity or any other compensation in connection with service on the Board.
2.
Annual Cash Compensation .
a.
Cash Retainer . Each Eligible Director serving as a member of the Board will receive an annual cash retainer of $75,000 for service on the Board (the “ Cash Retainer ”) for the period beginning on May 1 st of a given year and ending on April 30 th of the following year (each such period, a “ Compensation Year ”). An Eligible Director may elect, in accordance with procedures established by the Compensation Committee of the Board (the “ Compensation Committee ”), to receive one hundred percent (100%) of the Cash Retainer as a restricted stock unit award pursuant to the Plan with a Fair Market Value on the grant date equal to the Cash Retainer (the “ Elective RSUs ”).
b.
Meeting Fees . Each Eligible Director will receive a cash fee of $2,000 for each Board meeting attended (the “ Board Meeting Fees ”) beginning with the fifth meeting attended by such Eligible Director during any Compensation Year, commencing with the Compensation Year which began on May 1, 2017 (the “ 2017 Compensation Year ”). Each Eligible Director will also receive a cash fee of $500 for each meeting of a committee of the Board attended (such fees, together with the Board Meeting Fees, the “ Meeting Fees ”) beginning with the fifth committee meeting attended by such Eligible Director during any Compensation Year, commencing with the 2017 Compensation Year.


c.
Committee Chair Retainers . Eligible Directors are entitled to receive additional annual cash compensation as set forth in this Section 2(c) for service as the chairperson of the Board, as a chairperson of a committee of the Board or as a non-chair committee member (collectively, the “ Committee Retainers ”).
(i)
Chair Compensation . Each Eligible Director is entitled to additional annual cash compensation for service as a chairperson of the Board or of a committee of the Board for service during a Compensation Year, as set forth in the following table:
Position
Annual Chair Compensation
Non-Employee Chairman of the Board
$75,000
Audit Committee Chair
$30,000
Lead Independent Director if Employee is Chairman of the Board
$20,000
Compensation Committee Chair
$20,000
Safety, Health & Environmental Committee Chair
$15,000
Nominating & Corporate Governance Committee Chair
$12,000
(ii)
Committee Member Compensation . Each Eligible Director who serves as a member of a committee of the Board in a non-chair capacity is entitled to additional annual cash compensation of $5,000 for each committee on which such director serves during a Compensation Year.
3.
Payment Schedule for the Cash Retainer and Meeting Fees; Proration of Cash Retainer .
a.
Payment Schedule . The Cash Retainer for each Eligible Director will be paid by the Company in equal quarterly installments in arrears during the calendar month immediately following the Compensation Year quarter to which such amount relates. Meeting Fees for each Eligible Director will be paid by the Company quarterly in arrears during the calendar month immediately following the Compensation Year quarter in which such Meeting Fees were earned.
b.
Proration of Cash Retainer . With respect to any Compensation Year quarter in which an Eligible Director’s service as a member of the Board is terminated, such Eligible Director will be entitled to receive a prorated portion of the Cash Retainer for such partial quarter of service, payable at the time when other Eligible Directors are entitled to receive their Cash Retainer for such quarter of service. In the event a new Eligible Director is elected or appointed to the Board following the beginning of a Compensation Year, such Eligible Director will be entitled to receive a Cash Retainer for such Compensation Year, which will be prorated based on the date of appointment or election and payable in accordance with the schedule set forth in Section 3(a).

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c.
New Annual Meeting Date . Notwithstanding Sections 3(a) and 3(b), if the Company establishes a new annual meeting date (the “ Annual Meeting Date ”) which does not coincide with the beginning of a Compensation Year, the Compensation Year that is in effect as of such Annual Meeting Date shall be terminated, and each Eligible Director at the time of such Annual Meeting Date will be entitled to receive a prorated portion of the Cash Retainer for any partial quarter of service, payable during the calendar month immediately following such Annual Meeting Date. Effective as of the first Annual Meeting Date, the Compensation Year for purposes of the Policy shall be amended so that it commences on the Annual Meeting Date.
4.
Payment Schedule for Committee Retainers .
a.
Payment Schedule . Each Eligible Director who is entitled to a Committee Retainer for service as the chairperson of the Board or on a Board committee during a Compensation Year will be paid such Committee Retainer in full during the first calendar month of such Compensation Year. If an Eligible Director is appointed to a new position or committee at a time other than at the beginning of a Compensation Year, any Committee Retainer such Eligible Director is eligible to receive for the applicable Compensation Year as a result of such appointment will be paid in the calendar month immediately following the calendar month in which such appointment occurred.
b.
New Annual Meeting Date . If the Company establishes an Annual Meeting Date which does not coincide with the beginning of a Compensation Year, each Eligible Director at the time of such Annual Meeting Date will be paid any applicable Committee Retainer during the first calendar month of the Compensation Year that commences on such Annual Meeting Date, notwithstanding the fact that such Eligible Director may have received a Committee Retainer within the twelve (12) month period immediately preceding such Annual Meeting Date.
5.
Equity Compensation .
a.
RSU Grants . Each Eligible Director serving as a member of the Board at the beginning of a Compensation Year will receive an annual grant of restricted stock units pursuant to the Plan with a Fair Market Value on the date of grant equal to $100,000 (the “ Annual RSUs ” and, together with any Elective RSUs held by the Eligible Director, the “ RSUs ”), beginning with the Compensation Year commencing on May 1, 2018. The Annual RSUs will be granted to each Eligible Director as of the first day of the applicable Compensation Year. The RSUs will vest in full on the first to occur of (i) the day before the one-year anniversary of the date of grant (or, in the case of a new Eligible Director who is elected or appointed to the Board following the beginning of a Compensation Year, such other date as provided in the applicable Award Agreement), (ii) the Eligible Director's “separation from service” (as defined in Section 409A) due to the

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Eligible Director's death or Disability (as defined in the applicable Award Agreement), and (iii) a Change in Control, subject in each case to the Eligible Director's continuous service with the Company through such date. Unless otherwise elected by an Eligible Director in a Non-Employee Director Restricted Stock Unit Election Form or otherwise provided in the applicable Award Agreement, the shares of the Company’s common stock or the Fair Market Value thereof (as determined pursuant to the applicable Award Agreement) in respect of vested RSUs will be delivered to the Eligible Director on the earlier of (A) thirty (30) days following the applicable vesting date, and (B) immediately prior to a Change in Control. In the event a new Eligible Director is elected or appointed to the Board following the beginning of a Compensation Year, the Compensation Committee will have the authority to determine, in its sole discretion, whether such Eligible Director is eligible to receive, in connection with such election or appointment, an annual grant of RSUs (or a prorated portion thereof) or a special, one-time grant of restricted stock units pursuant to the Plan. The applicable Award Agreement for a grant of restricted stock units will provide, as determined by the Committee in its sole discretion, whether such restricted stock units may be settled in cash or in shares of the Company’s common stock.
b.
New Annual Meeting Date . If the Company establishes an Annual Meeting Date which does not coincide with the beginning of a Compensation Year, each Eligible Director at the time of such Annual Meeting Date will receive a grant of Annual RSUs on the first date of the Compensation Year beginning on such Annual Meeting Date, which grant will be prorated to reflect that portion of the prior Compensation Year that would have overlapped with the Compensation Year that commences on such Annual Meeting Date.


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Exhibit 10.45


CONTURA ENERGY, INC.
2018 LONG-TERM INCENTIVE PLAN
Section 1.     Purpose . The purpose of the Contura Energy, Inc. 2018 Long-Term Incentive Plan (as amended from time to time, the “ Plan ”) is to advance the interests of Contura Energy, Inc. (the “ Company ”) and its stockholders by motivating and retaining employees and other selected individuals who contribute significantly to the strategic and long-term performance objectives and growth of the Company.
Section 2.      Definitions . Certain capitalized terms applicable to the Plan are set forth in Appendix A.
Section 3.      Administration .  
(a)      Administration of the Plan . The Plan shall be administered by the Committee. All decisions of the Committee shall be final, conclusive and binding upon all parties, including the Company, its stockholders, Eligible Persons and any Beneficiaries thereof. The Committee may issue rules and regulations for administration of the Plan. It shall meet at such times and places as it may determine.
(b)      Composition of Committee . To the extent necessary or desirable to comply with applicable regulatory regimes, any action by the Committee shall require the approval of Committee members who are (i) independent, within the meaning of and to the extent required by applicable rulings and interpretations of the applicable stock market or exchange on which the Common Shares are quoted or traded; and (i) non-employee Directors within the meaning of Rule 16b-3 under the Exchange Act. The Board may designate one or more Directors as alternate members of the Committee who may replace any absent or disqualified member at any meeting of the Committee. To the extent permitted by applicable law, including under Section 157(c) of the Delaware General Corporation Law, the Committee may delegate to one or more officers of the Company some or all of its authority under the Plan, including the authority to grant Options and Stock Appreciation Rights or other Awards in the form of Common Share rights (except that such delegation shall not be applicable to any Award for a Person then covered by Section 16 of the Exchange Act), and the Committee may delegate to one or more committees of the Board (which may consist of solely one Director) some or all of its authority under the Plan, including the authority to grant all types of Awards, in accordance with applicable law.
(c)      Authority of Committee . Subject to the terms of the Plan and applicable law, the Committee (or its delegate) shall have full discretion and authority to: (i) designate Eligible Persons; (ii) determine the type or types of Awards (including Substitute Awards) to be granted to each Eligible Person under the Plan; (iii) determine the number of Common Shares to be covered by (or with respect to which payments, rights or other matters are to be calculated in connection with) Awards; (iv) determine the terms and conditions of any Award and prescribe the form of each Award Agreement which need not be identical for each Participant; (v) determine whether, to what extent and under what circumstances Awards may be settled or exercised in cash, Common Shares, other Awards, other property, net settlement, or any combination thereof, or canceled, forfeited or suspended, and the method or methods by which Awards may be settled,



exercised, canceled, forfeited or suspended; (i) determine whether, to what extent and under what circumstances cash, Common Shares, other Awards, other property and other amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Committee; (i) amend terms or conditions of any outstanding Awards in a manner consistent with Section 5(b) hereof; (i) correct any defect, supply any omission and reconcile any inconsistency in the Plan or any Award, in the manner and to the extent it shall deem desirable to carry the Plan into effect; (i) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (i) establish, amend, suspend or waive such rules and regulations and appoint such agents, trustees, brokers, depositories and advisors and determine such terms of their engagement as it shall deem appropriate for the proper administration of the Plan and due compliance with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations; and (i) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan and due compliance with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations. Notwithstanding anything to the contrary contained herein, the Board may, in its sole discretion, at any time and from time to time, grant Awards or administer the Plan. In any such case, the Board shall have all of the authority and responsibility granted to the Committee herein.
Section 4.      Participation .
Consistent with the purposes of the Plan, the Committee shall have exclusive power to select the Eligible Persons who may participate in the Plan and be granted Awards under the Plan. Eligible Persons may be selected individually or by groups or categories, as determined by the Committee in its discretion.
Section 5.      Shares Available for Award.
(a)      Share Reserve .
(i)      Subject to adjustment as provided in ‎ Section 5(b) and except for Substitute Awards, the maximum number of Common Shares available for issuance under the Plan is 1,000,000. The maximum number of Common Shares available for issuance with respect to Incentive Stock Options shall be 940,800.
(ii)      If any Award, in whole or in part, is forfeited, cancelled, expires, terminates or otherwise lapses, or is settled in cash without the delivery of Common Shares, or Common Shares are withheld by the Company in respect of taxes, then the corresponding Common Shares shall again be available for grant under the Plan. For the avoidance of doubt, any Common Shares tendered or withheld to pay the exercise price of Options, or that are covered by a Stock Appreciation Right (to the extent that it is settled in Common Shares, without regard to the number of Shares that are actually issued upon exercise), will not again become available for issuance under the Plan.
(iii)      Common Shares issued pursuant to the Plan may be either authorized but unissued shares, treasury shares, reacquired shares or any combination thereof.

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(b)      Adjustments . In the event that the Committee determines that, as a result of any dividend or other distribution (other than an ordinary dividend or distribution), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, separation, rights offering, split-up, spin-off, combination, repurchase or exchange of Common Shares or other securities of the Company, issuance of warrants or other rights to purchase Common Shares or other securities of the Company, issuance of Common Shares pursuant to the anti-dilution provisions of securities of the Company, or other similar corporate transaction or event affecting the Common Shares, or changes in applicable laws, regulations or accounting principles, an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, subject to compliance with Section 409A of the Code and other applicable law, adjust equitably so as to ensure no undue enrichment or harm (including, without limitation, by payment of cash) any or all of:
(i)      the number and type of Common Shares (or other securities) which thereafter may be made the subject of Awards, including the aggregate limit specified in ‎Section 5(a) and the individual limits specified in ‎ Section 5(c);
(ii)      the number and type of Common Shares (or other securities) subject to outstanding Awards; and
(iii)      the grant, purchase, exercise or hurdle price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award;
provided , however , that the number of Common Shares subject to any Award denominated in Common Shares shall always be a whole number.
(c)      Non-Employee Director Limits . No non-employee Director may be granted (i) Award(s) (denominated in Common Shares) in excess of 34,285 Common Shares (or if greater, in the case of Restricted Stock Units, Restricted Stock, Performance Awards and Other Stock-Based Awards, Common Shares with an aggregate Fair Market Value of $300,000, as calculated on the grant date of the applicable Award) or (ii) Award(s) denominated in cash in excess of $150,000 under the Plan in any one fiscal year of the Company.
Section 6.      Awards under the Plan .
(a)      Types of Awards . Awards under the Plan may include, but need not be limited to, one or more of the following types, either alone or in any combination thereof: (i) Stock Options, (i) Stock Appreciation Rights, (i) Restricted Stock, (ii) Restricted Stock Units, (iii) Performance Awards, (iv) Other Cash-Based Awards and (v) Other Stock-Based Awards.
(b)      Rights with Respect to Common Shares and Other Securities . Except as provided in ‎Section 9(c) with respect to Awards of Restricted Stock and unless otherwise determined by the Committee in its discretion, a Participant to whom an Award is made (and any Person succeeding to such a Participant’s rights pursuant to the Plan) shall have no rights as a

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stockholder with respect to any Common Shares or as a holder with respect to other securities, if any, issuable pursuant to any such Award until the date a stock certificate evidencing such Common Shares or other evidence of ownership is issued to such Participant or until such Participant’s ownership of such Common Shares shall have been entered into the books of the registrar in the case of uncertificated shares.
(c)      Award Agreements. Each Award granted or sold under the Plan shall be evidenced by an Award Agreement in such form as the Committee shall prescribe from time to time in accordance with the Plan and shall comply with the applicable terms and conditions of the Plan and applicable law, and with such other terms and conditions, including, but not limited to, treatment of the Award upon a Separation from Service and restrictions upon a Stock Option or the Common Shares issuable upon exercise thereof, as the Committee, in its discretion, shall establish.
Section 7.      Stock Options . The Committee may grant Stock Options to Eligible Persons with the following terms and conditions and with such additional terms and conditions, in each case, not inconsistent with the provisions of the Plan, as the Committee shall determine; provided that an Incentive Stock Option may be granted only to Eligible Persons who are employees of the Company or any parent or subsidiary of the Company within the meaning of Sections 424(e) and (f) of the Code, including a subsidiary which becomes such after adoption of the Plan.
(a)      The Committee shall determine the number of Common Shares to be subject to each Stock Option. The exercise price of a Stock Option shall not be less than the Fair Market Value of the Common Shares subject to such Stock Option on the date of grant, as determined by the Committee; provided, however , if an Incentive Stock Option is granted to a Ten Percent Employee, such exercise price shall not be less than 110% of such Fair Market Value at the time the Stock Option is granted.
(b)      Any Stock Option may be exercised during its term only at such time or times and in such installments as the Committee may establish.
(c)      A Stock Option shall not be exercisable:
(i)      in the case of any Incentive Stock Option granted to a Ten Percent Employee, after the expiration of five years from the date it is granted, and, in the case of any other Stock Option, after the expiration of ten years from the date it is granted; and
(ii)      no Common Shares shall be issued unless payment in full is made for the Common Shares being acquired under such Stock Option at the time of exercise as provided in ‎Section 7(e).
(d)      In the case of an Incentive Stock Option, the amount of the aggregate Fair Market Value of Common Shares (determined at the time of grant of the Stock Option) with respect to which Incentive Stock Options are exercisable for the first time by an employee of the Company or a Subsidiary during any calendar year (under all such plans of his or her employer corporation and its parent and subsidiary corporations within the meaning of Sections 424(e) and (f) of the

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Code) shall not exceed $100,000 or such other amount as is specified in the Code. An Incentive Stock Option that is exercised at a time that is beyond the time an Incentive Stock Option may be exercised in order to qualify as such under the Code shall cease to be an Incentive Stock Option.
(e)      The Committee shall determine the method or methods by which, and the form or forms, including cash, Common Shares, other Awards, other property, net settlement, broker-assisted cashless exercise or any combination thereof, having a Fair Market Value (if such form is other than cash) on the exercise date equal to the exercise price of the Common Shares as to which the Option shall be exercised, in which payment of the exercise price with respect thereto may be made or deemed to have been made.
(f)      If the exercise of a Stock Option is prevented by ‎Section 19(e), the Stock Option shall remain exercisable until thirty days after the date such exercise first would no longer be prevented by such provision, but in any event no later than the expiration date of such Stock Option.
Section 8.      Stock Appreciation Rights . The Committee may grant Stock Appreciation Rights to Eligible Persons with the following terms and conditions, and with such additional terms and conditions in each case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a)      The Committee shall determine the number of Common Shares to be subject to each Stock Appreciation Right. Stock Appreciation Rights shall have an exercise price no less than the Fair Market Value of the Common Shares subject to such Stock Appreciation Right on the date of grant, as determined by the Committee.
(b)      Any Stock Appreciation Right may be exercised during its term only at such time or times and in such installments as the Committee may establish and shall not be exercisable after the expiration of ten years from the date it is granted.
(c)      A Stock Appreciation Right shall entitle the holder to exercise such Award and to receive from the Company in exchange thereof, without payment to the Company, that number of Common Shares or cash having an aggregate value equal to the excess of the Fair Market Value of one Common Share, at the time of such exercise, over the exercise price, times the number of Common Shares subject to the Award, or portion thereof, that is so exercised or surrendered, as the case may be.
(d)      If the exercise of a Stock Appreciation Right is prevented by Section ‎19(e), the Stock Appreciation Right shall remain exercisable until thirty days after the date such exercise first would no longer be prevented by such provision, but in any event no later than the expiration date of such Stock Appreciation Right.  
Section 9.      Restricted Stock and Restricted Stock Units . The Committee is authorized to grant Awards of Restricted Stock and Restricted Stock Units to Eligible Persons with the following terms and conditions, and with such additional terms and conditions in each case not inconsistent with the provisions of the Plan, as the Committee shall determine.

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(a)      The Committee shall determine the number of Common Shares to be issued to a Participant pursuant to the Award of Restricted Stock or Restricted Stock Units, and the extent, if any, to which they shall be issued in exchange for cash, other consideration, or both. The Award Agreement shall specify the applicable conditions and restrictions and, with respect to Restricted Stock Units, the delivery schedule (which may include deferred delivery later than an applicable vesting date).
(b)      Until the expiration of such period as the Committee shall determine from the date on which the Award is granted and subject to such other terms and conditions as the Committee, in its discretion, shall establish (the “ Restricted Period ”), a Participant to whom an Award of Restricted Stock is made shall be issued, but shall not be entitled to the delivery of, a stock certificate or other evidence of ownership representing the Common Shares subject to such Award.
(c)      Unless otherwise determined by the Committee in its discretion, a Participant to whom an Award of Restricted Stock has been made (and any Person succeeding to such a Participant’s rights pursuant to the Plan) shall have, after issuance of a certificate for the number of Common Shares awarded (or after the Participant’s ownership of such Common Shares shall have been entered into the books of the registrar in the case of uncertificated shares) and prior to the expiration of the Restricted Period, ownership of such Common Shares, including the right to vote such Common Shares and to receive dividends or other distributions made or paid with respect to such Common Shares, provided that, such Common Shares, and any new, additional or different shares, or Other Company Securities or property, or other forms of consideration that the Participant may be entitled to receive with respect to such Common Shares as a result of a stock split, stock dividend or any other change in the corporation or capital structure of the Company, shall be subject to the restrictions set forth in the Award Agreement. A Restricted Stock Unit shall not convey to the Participant the rights and privileges of a stockholder with respect to the Common Share subject to the Restricted Stock Unit, such as the right to vote or the right to receive dividends, unless and until a Common Share is issued to the Participant to settle the Restricted Stock Unit.
(d)      The Committee may, in its discretion, specify in the applicable Award Agreement that any or all dividends, Dividend Equivalents or other distributions, as applicable, paid on Awards of Restricted Stock or Restricted Stock Units prior to vesting or settlement, as applicable, be paid either in cash or in additional Common Shares and either on a current or deferred basis and that such dividends, dividend equivalents or other distributions may be reinvested in additional Common Shares, which may be subject to the same restrictions as the underlying Awards. Notwithstanding the foregoing, dividends and Dividend Equivalents with respect to Restricted Stock and Restricted Stock Units that are granted as Performance Awards shall vest only if and to the extent that the underlying Performance Award vests, as determined by the Committee.
Section 10.      Performance Awards .
(a)      Grant . The Committee may grant a Performance Award to Eligible Persons which shall consist of a right that is (i) denominated and/or payable in cash, Common Shares or any

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other form of Award issuable under the Plan (or any combination thereof) (other than Stock Options or Stock Appreciation Rights), (i) valued, as determined by the Committee, in accordance with the achievement of such performance goals applicable to such performance periods as the Committee shall establish and (i) payable at such time and in such form as the Committee shall determine.
(b)      Terms and Conditions . Performance Awards may be conditioned upon the achievement of pre-established goals relating to one or more of the following performance measures, as determined by the Committee and subject to such modifications as specified by the Committee: cash flow; cash flow from operations; earnings (including, but not limited to, earnings before interest, taxes, depreciation and amortization or some variation thereof); earnings per share, diluted or basic; earnings per share from continuing operations; net asset turnover; inventory turnover; capital expenditures; debt; debt reduction; working capital; return on investment; return on sales; net or gross sales; market share; economic value added; cost of capital; change in assets; expense reduction levels; productivity; delivery performance; safety record and/or performance; environmental record and/or performance; stock price; return on equity; total or relative increases to stockholder return; return on invested capital; return on assets or net assets; revenue; income or net income; operating income or net operating income; operating profit or net operating profit; gross margin, operating margin or profit margin; and completion of acquisitions, business expansion, product diversification, new or expanded market penetration, and other non-financial operating and management performance objectives. The Committee may determine that certain adjustments shall apply, in whole or in part, to exclude or include the effect of specified events that occur during a performance period. Performance measures may be determined either individually, alternatively or in any combination, applied to either the Company as a whole or to a business unit or subsidiary entity thereof, either individually, alternatively or in any combination, and measured over a period of time including any portion of a year, annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous fiscal years’ results or to a designated comparison group, in each case as specified by the Committee.
(c)      Additional Restrictions/Exercise of Discretion . The Committee, in its sole discretion, may also establish such additional restrictions or conditions that must be satisfied as a condition precedent to the payment of all or a portion of any Performance Awards. Such additional restrictions or conditions need not be performance-based and may include, among other things, the receipt by a Participant of a specified annual performance rating, the continued employment by the Participant and/or the achievement of specified performance goals by the Company, business unit or Participant. Furthermore, and notwithstanding any provision of the Plan to the contrary, the Committee, in its sole discretion, may retain the discretion to adjust the amount of any Performance Award payable to a Participant if it concludes that such adjustment is necessary or appropriate.
(d)      Payment of Performance Awards . Performance Awards may be paid in a lump sum or in installments following the close of the relevant Performance Period or, in accordance with procedures established by the Committee, on a deferred or accelerated basis.

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Section 11.      Other Cash-Based Awards and Other Stock-Based Awards . The Committee may grant Other Cash-Based Awards and Other Stock-Based Awards to Eligible Persons with the following terms and conditions, and with such additional terms and conditions in each case not inconsistent with the provisions of the Plan, as the Committee shall determine, which shall consist of any right that is (i) not an Award described in Sections ‎7 through ‎10 above and (i) an Award of Common Shares or cash or an Award denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Shares (including, without limitation, securities convertible into Common Shares), as deemed by the Committee to be consistent with the purposes of the Plan. Subject to the terms of the Plan and any applicable Award Agreement, the Committee shall determine the terms and conditions of any such Other Cash-Based Award or Other Stock-Based Award.
Section 12.      Effect of Separation from Service or a Change in Control on Awards .
(a)      The Committee may provide, by rule or regulation or in any applicable Award Agreement, or may determine in any individual case, the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event of the Participant’s Separation from Service prior to the end of a Performance Period or vesting, exercise or settlement of such Award.
(b)      In the event of a Change in Control, the Committee may, in its sole discretion, and on such terms and conditions as it deems appropriate, take any one or more of the following actions with respect to any outstanding Award, which need not be uniform with respect to all Participants and/or Awards:
(i)      continuation or assumption of such Award by the Company (if it is the surviving corporation) or by the successor or surviving corporation or its parent;
(ii)      substitution or replacement of such Award by the successor or surviving corporation or its parent with cash, securities, rights or other property to be paid or issued, as the case may be, by the successor or surviving corporation (or a parent or subsidiary thereof), with substantially the same terms and value as such Award (including, without limitation, any applicable performance targets or criteria with respect thereto);
(iii)      acceleration of the vesting of such Award and the lapse of any restrictions thereon and, in the case of an Option or Stock Appreciation Right, acceleration of the right to exercise such Award during a specified period (and the termination of such Option or Stock Appreciation Right without payment of any consideration therefor to the extent such Award is not timely exercised), in each case, upon (A) the Participant’s involuntary Separation from Service (including upon a termination of the Participant’s employment by the Company (or a successor corporation or its parent) without “cause” or by the Participant for “good reason”) as such terms may be defined in the applicable Award Agreement and/or the Participant’s employment agreement or offer letter, as the case may be) on or within 24 months following such Change in Control or (B) the failure

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of the successor or surviving corporation (or its parent) to continue or assume such Award;
(iv)      in the case of a Performance Award, determination of the level of attainment of the applicable performance condition(s); and
(v)      cancellation of such Award in consideration of a payment, subject to the following: (A) such payment shall be made in cash, securities, rights and/or other property; (B) the amount of such payment shall equal the value of such Award, as determined by the Committee in its reasonable discretion; provided that, in the case of an Option or Stock Appreciation Right, if such value equals the Intrinsic Value of such Award, such value shall be deemed to be valid; provided further that, if the Intrinsic Value of an Option or Stock Appreciation Right is equal to or less than zero, the Committee may, in its sole discretion, provide for the cancellation of such Award without payment of any consideration therefor (for the avoidance of doubt, in the event of a Change in Control, the Committee may, in its sole discretion, terminate any Option or Stock Appreciation Right for which the exercise or hurdle price is equal to or exceeds the per Common Share value of the consideration to be paid in the Change in Control transaction without payment of consideration therefor); and (C) such payment shall be made promptly following such Change in Control or on a specified date or dates following such Change in Control; provided that the timing of such payment shall comply with Section 409A.
Section 13.      Section 409A . Notwithstanding any provision of the Plan or an Award Agreement to the contrary, if any Award provided under the Plan is subject to the provisions of Section 409A, the provisions of the Plan and any applicable Award Agreement shall be administered, interpreted and construed in a manner necessary in order to comply with Section 409A or an exception thereto (or disregarded to the extent such provision cannot be so administered, interpreted or construed), and the following provisions shall apply, as applicable and as required by Section 409A:
(a)      If a Participant is a Specified Employee for purposes of Section 409A and a payment subject to Section 409A (and not excepted therefrom) to the Participant is due upon Separation from Service, such payment shall be delayed for a period of six (6) months after the date the Participant Separates from Service (or, if earlier, the death of the Participant). Any payment that would otherwise have been due or owing during such six-month period will be paid immediately following the end of the six-month period unless another compliant date is specified in the applicable Award Agreement.
(b)      For purposes of Section 409A, and to the extent applicable to any Award under the Plan, it is intended that distribution events qualify as permissible distribution events for purposes of Section 409A and shall be interpreted and construed accordingly. Whether a Participant has Separated from Service will be determined by the Committee based on all of the facts and circumstances and, to the extent applicable to any Award, in accordance with the guidance issued under Section 409A.

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(c)      The grant of Nonqualified Stock Options and Stock Appreciation Rights are intended to be granted under terms and conditions consistent with Treas. Reg. § 1.409A-1(b)(5) such that any such Award does not constitute a deferral of compensation under Section 409A.
Section 14.      Deferred Payment of Awards . The Committee, in its discretion, may specify the conditions under which the payment of all or any portion of any cash compensation, or Common Shares or other form of payment under an Award, may be deferred until a later date. Deferrals shall be for such periods or until the occurrence of such events, and upon such terms and conditions, as the Committee shall determine in its discretion, in accordance with the provisions of Section 409A; provided, however , that no deferral shall be permitted with respect to Stock Options or Stock Appreciation Rights.
Section 15.      Transferability of Awards . Except pursuant to the laws of descent and distribution, a Participant’s rights and interest under the Plan or any Award may not be assigned or transferred, hypothecated or encumbered in whole or in part, including, but not by way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy or in any other manner; provided, however , the Committee may permit such transfer to a Permitted Transferee; and provided , further , that, unless otherwise permitted by the Code, any Incentive Stock Option granted pursuant to the Plan shall not be transferable other than by will or by the laws of descent and distribution, and shall be exercisable during the Participant’s lifetime only by Participant.
Section 16.      Amendment or Substitution of Awards under the Plan .
(a)      The terms of any outstanding Award under the Plan may be amended or modified from time to time after grant by the Committee in its discretion in any manner that it deems appropriate (including, but not limited to, acceleration of the date of exercise of any Award and/or payments under any Award) in accordance with the terms of the Plan; provided that no such amendments or acceleration shall adversely affect in a material manner any right of a Participant under the Award without his or her written consent. The Committee may, in its discretion, permit holders of Awards under the Plan to surrender outstanding Awards in order to exercise or realize the rights under other Awards, or in exchange for the grant of new Awards, or require holders of Awards to surrender outstanding Awards as a condition precedent to the grant of new Awards under the Plan.
(b)      No Repricing . Notwithstanding the foregoing, except as provided in ‎Section 5(b), no action (including the repurchase of Options or Stock Appreciation Right Awards (in each case, that are “out of the money”) for cash and/or other property) shall directly or indirectly, through cancellation and regrant or any other method, reduce, or have the effect of reducing, the exercise or hurdle price of any Award established at the time of grant thereof without approval of the Company’s stockholders.
Section 17.      Termination of a Participant . For all purposes under the Plan, the Committee shall determine whether a Participant has Separated from Service, terminated employment with, or terminated the performance of services for, the Company or any Subsidiary; provided, however , an absence or leave approved by the Company, to the extent

10

permitted by applicable provisions of the Code, shall not be considered an interruption of employment or performance of services for any purpose under the Plan.
Section 18.      Designation of Beneficiary by Participant . A Participant may name a beneficiary to receive any payment to which such Participant may be entitled with respect to any Award under the Plan in the event of his or her death, on a written form to be provided by and filed with the Committee, and in a manner determined by the Committee in its discretion (a “ Beneficiary ”). The Committee reserves the right to review and approve Beneficiary designations. A Participant may change his or her Beneficiary from time to time in the same manner, unless such Participant has made an irrevocable designation. Any designation of a Beneficiary under the Plan (to the extent it is valid and enforceable under applicable law) shall be controlling over any other disposition, testamentary or otherwise, as determined by the Committee in its discretion. If no designated Beneficiary survives the Participant and is living on the date on which any amount becomes payable to such a Participant’s Beneficiary, such payment will be made to the legal representatives of the Participant’s estate, and the term “ Beneficiary ” as used in the Plan shall be deemed to include such Person or Persons. If there are any questions as to the legal right of any Beneficiary to receive a distribution under the Plan, the Committee in its discretion may determine that the amount in question be paid to the legal representatives of the estate of the Participant, in which event the Company, the Board, the Committee and the members thereof, will have no further liability to anyone with respect to such amount.
Section 19.      Miscellaneous Provisions .
(a)      Any proceeds from Awards shall constitute general funds of Company.
(b)      No fractional shares may be delivered under an Award, but in lieu thereof a cash or other adjustment may be made as determined by the Committee in its discretion.
(c)      No Eligible Person or other Person shall have any claim or right to be granted an Award under the Plan. Determinations made by the Committee under the Plan need not be uniform and may be made selectively among Eligible Persons under the Plan, whether or not such Eligible Persons are similarly situated. Neither the Plan nor any action taken under the Plan shall be construed as giving any Eligible Person any right to continue to be employed by or perform services for the Company, and the Company specifically reserves the right to terminate the employment of, or performance of services by, Eligible Persons at any time and for any reason.
(d)      No Participant or other Person shall have any right with respect to the Plan or the Common Shares reserved for issuance under the Plan or in any Award, contingent or otherwise, until written evidence of the Award shall have been delivered to the Participant and all the terms, conditions and provisions of the Plan and the Award applicable to such Participant (and each Person claiming under or through him or her) have been met.
(e)      Notwithstanding anything to the contrary contained in the Plan or in any Award agreement, each Award shall be subject to the requirement, if at any time the Committee shall

11

determine, in its sole discretion, that such requirement shall apply, that the listing, registration or qualification of any Award under the Plan, or of the Common Shares, Other Company Securities or property or other forms of payment issuable pursuant to any Award under the Plan, on any stock exchange or other market quotation system or under any federal or state law, or the consent or approval of any government regulatory body, is necessary as a condition of, or in connection with, the granting of such Award or the exercise or settlement thereof, such Award shall not be granted, exercised or settled in whole or in part until such listing, registration, qualification, consent or approval shall have been effected, obtained and maintained free of any conditions not acceptable to the Committee. Notwithstanding anything to the contrary contained in the Plan or in any Award agreement, no Common Shares, Other Company Securities or property or other forms of payment shall be issued under the Plan with respect to any Award unless the Committee shall be satisfied that such issuance will be in compliance with applicable law and any applicable rules of any stock exchange or other market quotation system on which such Common Shares are listed. If the Committee determines that the exercise of any Stock Option or Stock Appreciation Right would fail to comply with any applicable law or any applicable rules of any stock exchange or other market quotation system on which Common Shares are listed, the Participant holding such Stock Option or Stock Appreciation Right shall have no right to exercise such Stock Option or Stock Appreciation Right until such time as the Committee shall have determined that such exercise will not violate any applicable law or any such applicable rule.
(f)      Although it is the intent of Company that the Plan and Awards hereunder, to the extent the Committee deems appropriate and to the extent applicable, comply with Rule 16b-3 and Sections 409A and 422; (i) the Company does not warrant that any Award under the Plan will qualify for favorable tax treatment under any provision of federal, state, local or non-United States law; and (i) in no event shall any member of the Committee or the Company (or its employees, officers or directors) have any liability to any Participant (or any other Person) due to the failure of an Award to satisfy the requirements of Rule 16b-3 or Section 409A or 422 or, as applicable, for any tax, interest, or penalties the Participant might owe as a result of the grant, holding, vesting, exercise, or payment of any Award under the Plan.
(g)      The Company shall have the right to deduct from any payment made under the Plan any federal, state, local or foreign income or other taxes required by law to be withheld with respect to such payment. It shall be a condition to the obligation of Company to issue Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof, upon exercise, settlement or payment of any Award under the Plan, that the Participant (or any Beneficiary or Person entitled to act) pay to the Company, upon its demand, such amount as may be required by the Company for the purpose of satisfying any liability to withhold federal, state, local or foreign income or other taxes. If the amount requested is not paid, the Company may refuse to issue Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof. Notwithstanding anything in the Plan to the contrary, the Committee may, in its discretion, permit an Eligible Person (or any Beneficiary or Person entitled to act) to elect to pay a portion or all of the amount requested by the Company for such taxes with respect to such Award, at such time and in such manner as the Committee shall deem to be appropriate (including, but not limited to, by authorizing the Company to withhold, or agreeing to surrender to the Company on or about the

12

date such tax liability is determinable, Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof, owned by such Person or a portion of such forms of payment that would otherwise be distributed, or have been distributed, as the case may be, pursuant to such Award to such Person, having a Fair Market Value equal to the amount of such taxes); provided, however , that any broker-assisted cashless exercise shall comply with the requirements of Financial Accounting Standards Board, Accounting Standards Codification, Topic 718, and any withholding satisfied through a net-settlement of an Award shall be limited to the maximum statutory withholding requirements.
(h)      The expenses of the Plan shall be borne by the Company.
(i)      The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the payment of any Award under the Plan, and rights to the payment of Awards shall be no greater than the rights of the Company’s general creditors.
(j)      By accepting any Award or other benefit under the Plan, each Participant (and each Person claiming under or through him or her) shall be conclusively deemed to have indicated his or her acceptance and ratification of, and consent to, any action taken under the Plan by the Company, the Board or the Committee.
(k)      Records of the Company shall be conclusive for all purposes under the Plan or any Award, unless determined by the Committee to be incorrect.
(l)      If any provision of the Plan or any Award is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of the Plan or any Award, but such provision shall be fully severable, and the Plan or Award, as applicable, shall be construed and enforced as if the illegal or invalid provision had never been included in the Plan or Award, as applicable.
(m)      The terms of the Plan shall govern all Awards under the Plan and in no event shall the Committee have the power to grant any Award under the Plan that is contrary to any of the provisions of the Plan.
(n)      Notwithstanding the foregoing, any Award granted under the Plan which is or becomes subject to recovery under any Company policy adopted after the Effective Date or required by law, regulation or stock exchange listing requirement, shall be subject to such deductions, recoupment, and clawback as may be required to be made pursuant to such Company policy (the “ Clawback Policy ”) or applicable law, regulation or stock exchange listing requirement. Upon the adoption of the Clawback Policy, the Committee is hereby granted the authority, in its discretion, to amend and/or terminate any similar recoupment and clawback provisions in outstanding Awards which are inconsistent with, similar to, or duplicative of, such Clawback Policy.
(o)      The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying securities, tax or other laws of various jurisdictions in which the Company

13

intends to grant Awards. Any sub-plans shall contain such limitations and other terms and conditions as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but, if applicable, each sub-plan shall apply only to the Participants in the jurisdiction for which the sub-plan was designed. Awards may be granted to Participants who are non-United States nationals or employed or providing services outside the United States, or both, on such terms and conditions different from those applicable to Awards to Participants who are employed or providing services in the United States as may, in the judgment of the Committee, be necessary or desirable to recognize differences in local law, tax policy or custom.
Section 20.      Effective Date and Approval Date . The Plan shall become effective upon the date of approval of the Plan by the Board (the “ Effective Date ”); provided , however , that the Plan shall be subject to the subsequent approval by the Company’s stockholders, such stockholder approval to be obtained not later than one year after the Effective Date. Any Awards granted under the Plan prior to such approval by stockholders shall be subject to such approval, and, in the absence of such approval, such Awards shall be null and void
Section 21.      Plan Amendment or Suspension . The Plan may be amended or suspended in whole or in part at any time and/or from time to time by the Committee; provided that no such change or amendment shall be made without stockholder approval if such approval is necessary to qualify for or comply with any tax or regulatory requirement or other applicable law for which the Committee deems it necessary or desirable to qualify or comply. No amendment of the Plan shall adversely affect in a material manner any right of any Participant with respect to any Award previously
granted without such Participant’s written consent, except as permitted under ‎Section 5(b). Notwithstanding the foregoing or any provision of the Plan to the contrary, the Committee may at any time (without the consent of any Participant) modify, amend or terminate any or all of the provisions of the Plan or an Award to the extent necessary to conform the provisions of the Plan with Section 409A or any other provision of the Code or other applicable law, the regulations issued thereunder or an exception thereto, regardless of whether such modification, amendment or termination of the Plan shall adversely affect the rights of a Participant.
Section 22.      Term of the Plan . No Awards shall be granted under the Plan after earlier of the following dates or events to occur:
(a)      upon the adoption of a resolution of the Board terminating the Plan; or
(b)      the tenth anniversary of the Effective Date.
Section 23.      Governing Law . The Plan and any Award granted under the Plan as well as any determinations made or actions taken under the Plan shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware without regard to its choice or conflicts of laws principles.

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APPENDIX A
The following terms shall have the meaning indicated:
“ Affiliate ” means any entity that, directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Company.
“ Award ” means an award of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Awards, Other Cash-Based Awards or Other Stock-Based Awards to an Eligible Person under the Plan.
“ Award Agreement ” means any agreement, contract or other instrument or document (including in electronic form) evidencing any Award granted under the Plan, which may, but need not, be executed or acknowledged by a Participant.
“ Beneficiary ” has the meaning set forth in ‎Section 18.
“ Board ” means the Board of Directors of the Company.
“ Clawback Policy ” has the meaning set forth in ‎Section 19(n).
“ Change in Control ” means the occurrence of any one or more of the following events:
(i)      any Person, other than (A) any employee plan established by the Company or any Subsidiary, (A) the Company or any of its Affiliates, (A) an underwriter temporarily holding securities pursuant to an offering of such securities, or (A) a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company, is (or becomes, during any 12-month period) the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business) representing 50% or more of the total voting power of the stock of the Company; provided that the provisions of this subsection (i) are not intended to apply to or include as a Change in Control any transaction that is specifically excepted from the definition of Change in Control under subsection (iii) below;
(ii)      a change in the composition of the Board such that, during any 12-month period, which shall in no event begin prior to the Initial Public Offering, the individuals who constitute the Board at the time of the Initial Public Offering (the “ Existing Board ”) cease for any reason to constitute at least 50% of the Board; provided , however , that any individual becoming a member of the Board subsequent to the Initial Public Offering whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the Directors immediately prior to the date of such appointment or election shall be considered as though such individual were a member of the Existing Board; provided further , that, notwithstanding the foregoing, no individual whose initial assumption of office occurs as a result of either an actual or threatened



election contest (as such terms are used in Rule 14a-11 or Regulation 14A promulgated under the Exchange Act or successor statutes or rules containing analogous concepts) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate or other entity or Person other than the Board, shall in any event be considered to be a member of the Existing Board;
(iii)      the consummation of a merger or consolidation of the Company with any other corporation or other entity, or the issuance of voting securities in connection with a merger or consolidation of the Company pursuant to applicable stock exchange requirements; provided that immediately following such merger or consolidation the voting securities of the Company outstanding immediately prior thereto do not continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity of such merger or consolidation or parent entity thereof) 50% or more of the total voting power of the Company’s stock (or, if the Company is not the surviving entity of such merger or consolidation, 50% or more of the total voting power of the stock of such surviving entity or parent entity thereof); and provided , further , that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business) representing 50% or more of either the then-outstanding Common Shares or the combined voting power of the Company’s then-outstanding voting securities shall not be considered a Change in Control; or
(iv)      the sale or disposition by the Company of the Company’s assets in which any Person acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Person) assets from the Company that have a total gross fair market value equal to more than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions.
Notwithstanding the foregoing, (A) no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the Common Shares immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns substantially all of the assets of the Company immediately prior to such transaction or series of transactions, (B) for purposes of any compensation that constitutes “nonqualified deferred compensation” pursuant to Section 409A, no event or circumstances described in any of clauses (i) through (iv) above shall constitute a Change in Control unless such event or circumstances also constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the Company’s assets, in each case, as defined in Section 409A. Terms used in the definition of a Change in Control shall be as defined or interpreted in a manner consistent with Section 409A of the Code.

16

“ Code ” shall mean the Internal Revenue Code of 1986, as it now exists or may be amended from time to time, and the rules and regulations promulgated thereunder, as they may exist or may be amended from time to time.
“ Committee ” shall mean the person or persons responsible for administering the Plan as appointed by the Board; provided, however , that at any time the Board may designate itself as the Committee or designate itself to administer certain of the Committee’s authority under the Plan, including administering certain Awards under the Plan.
“ Common Shares ” means shares of common stock, par value $0.01 per share, of the Company and stock of any other class into which such shares may thereafter be changed.
“ Consultant ” means any individual, including an advisor, who is providing services to the Company or any Subsidiary or who has accepted an offer of service or consultancy from the Company or any Subsidiary.
“ Director ” means any member of the Board.
“ Dividend Equivalents ” means an award of cash or other property with a Fair Market Value equal to the dividends which would have been paid on the Common Shares underlying an outstanding Award of Restricted Stock Units had such Common Shares been outstanding.
“ Effective Date ” has the meaning set forth in Section 21.
“ Eligible Person(s) ” means those persons who are (i) full or part-time employees or Consultants of the Company or any Subsidiary or (ii) other individuals who perform services for the Company or any Subsidiary, including, without limitation, Directors who are not employees of the Company or any Subsidiary.
“ Exchange Act ” means the Securities Exchange Act of 1934, as it now exists or may be amended from time to time, and the rules promulgated thereunder, as they may exist or may be amended from time to time.
“ Fair Market Value ” means (i) with respect to the Common Shares, as of any date (A) if the Company’s Common Shares are listed on any established stock exchange, system or market, the closing market price of the Common Shares as quoted in such exchange, system or market on the day before such date as reported in the Wall Street Journal or such other source as the Committee deems reliable or (B) in the absence of an established market for the Common Shares, as determined in good faith by the Committee or (ii) with respect to property other than Common Shares, the value of such property, as determined by the Committee, in its sole discretion.
“ Incentive Stock Option ” means a Stock Option that is an incentive stock option as defined in Section 422 of the Code.
“ Intrinsic Value ” with respect to an Option or Stock Appreciation Right means (v) the excess, if any, of the price or implied price per Common Share in a Change in Control or other

17

event over (vi) the exercise or hurdle price of such Award multiplied by (vii) the number of Common Shares covered by such Award.
“ Nonqualified Stock Option ” means a Stock Option that is not an incentive stock option as defined in Section 422 of the Code.
“ Option ” means an Incentive Stock Option or a Non-Qualified Stock Option.
“ Other Company Securities ” means Company securities (which may include, but need not be limited to, unbundled stock units or components thereof, debentures, preferred stock, warrants, securities convertible into Common Shares or other property) other than Common Shares.
“ Other Cash-Based Award ” means an Award granted pursuant to ‎Section 11, including cash awarded as a bonus or upon the attainment of specified performance criteria or otherwise as permitted under the Plan.
“ Other Stock-Based Award ” means an Award granted pursuant to ‎Section 11 that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Common Shares or factors that may influence the value of Common Shares, including convertible or exchangeable debt securities, other rights convertible or exchangeable into Common Shares, purchase rights for Common Shares, dividend rights or dividend equivalent rights or Awards with a value and payment contingent upon performance of the Company or business units thereof or any other factors designated by the Committee.
“ Participant ” means an Eligible Person to whom an Award has been granted under the Plan.
“ Performance Award ” means an Award subject, in part, to the terms, conditions and restrictions described in ‎Section 10, pursuant to which the recipient may become entitled to receive cash, Common Shares, Other Company Securities or other property issuable under the Plan, or any combination thereof, as determined by the Committee.
“ Performance Period ” means the period established by the Committee with respect to any Performance Award during which the performance goals specified by the Committee with respect to such Award are to be measured.
“ Permitted Transferee ” means (i) any person defined as an employee in the Instructions to Registration Statement Form S-8 promulgated by the Securities and Exchange Commission, as such form may be amended from time to time, which persons include, as of the date of adoption of the Plan, executors, administrators or beneficiaries of the estates of deceased Participants, guardians or members of a committee for incompetent former Participants, or similar persons duly authorized by law to administer the estate or assets of former Participants, and (ii) Participants’ family members who acquire Awards from the Participant other than for value, including through a gift or a domestic relations order. For purposes of this definition, “family member” includes any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,

18

brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Participant’s household (other than a tenant or employee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant) own more than fifty percent of the voting interests. For purposes of this definition, neither (i) a transfer under a domestic relations order in settlement of marital property rights, nor (ii) a transfer to an entity in which more than fifty percent of the voting or beneficial interests are owned by family members (or the Participant) in exchange for an interest in that entity is considered a transfer for “value”.
“ Person ” means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, governmental body or other entity of any kind.
“ Restricted Period ” has the meaning set forth in Section ‎9(b).
“ Restricted Stock ” means an Award of Common Shares that are issued subject, in part, to the terms, conditions and restrictions described in ‎ Section 9.
“ Restricted Stock Units ” means an Award of the right to receive either (as the Committee determines) Common Shares or cash equal to the Fair Market Value of a Common Share on the payment date, issued subject, in part, to the terms, conditions and restrictions described in ‎Section 9.
“ Rule 16b-3 ” means Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act and any successor rule.
“ Section 409A ” means Section 409A of the Code, any rules or regulations promulgated thereunder, as they may exist or may be amended from time to time, or any successor to such section.
“ Section 422 ” means Section 422 of the Code, any rules or regulations promulgated thereunder, as they may exist or may be amended from time to time, or any successor to such section.
“ Separation from Service ” and “ Separate from Service ” means the Participant’s death, retirement or other termination of employment or service with the Company (including all persons treated as a single employer under Sections 414(b) and 414(c) of the Code) that constitutes a “separation from service” (within the meaning of Section 409A).
“ Specified Employee ” means a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company as determined in accordance with Section 409A and the procedures established by the Company.
“ Stock Appreciation Right ” means an Award of a right to receive (without payment to the Company) cash, Common Shares, Other Company Securities or other property, or other forms of payment, or any combination thereof, as determined by the Committee, based on the

19

increase in the value of the number of Common Shares specified in the Stock Appreciation Right. Stock Appreciation Rights are subject, in part, to the terms, conditions and restrictions described in ‎Section 8.
“ Subsidiary ” means an entity of which the Company directly or indirectly holds at least a majority of the value of the outstanding equity interests of such entity or a majority of the voting power with respect to the voting securities of such entity.
“ Substitute Award ” means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or other business acquired by the Company or with which the Company combines.
“ Ten Percent Employee ” means an employee of the Company or any Subsidiary who owns stock representing more than ten percent of the voting power of all classes of stock of the Company or any parent or subsidiary of the Company within the meaning of Sections 424(e) and (f) of the Code.
“ Treasury Regulation ” means a final, proposed or temporary regulation of the Department of Treasury under the Code and any successor regulation.

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Exhibit 21.1


CONTURA ENERGY, INC.
Subsidiaries List
 
Name of Subsidiary
 
Jurisdiction of
Incorporation
Contura CAPP Land, LLC
 
Delaware
Contura Coal Resources, LLC
 
Delaware
Contura Coal Sales, LLC
 
Delaware
Contura Coal West, LLC
 
Delaware
Contura Energy Services, LLC
 
Delaware
Contura Energy, LLC
 
Delaware
Contura European Marketing, LLC
 
Delaware
Contura Freeport, LLC
 
Delaware
Contura Mining Holding, LLC
 
Delaware
Contura Pennsylvania Land, LLC
 
Delaware
Contura Pennsylvania Terminal, LLC
 
Delaware
Contura Terminal, LLC
 
Delaware
Contura Wyoming Land, LLC
 
Delaware
Cumberland Contura, LLC
 
Delaware
Dickenson-Russell Contura, LLC
 
Delaware
Emerald Contura, LLC
 
Delaware
Nicholas Contura, LLC
 
Delaware
Paramont Contura, LLC
 
Delaware
Power Mountain Contura, LLC
 
Delaware




Exhibit 23.1

Consent of Independent Registered Public Accounting Firm
The Board of Directors
Contura Energy, Inc.:
We consent to the use of our report included herein and to the reference to our firm under the heading “Experts” in the joint proxy statement and prospectus.
Our report dated March 29, 2018 contains an explanatory paragraph that states that effective July 26, 2016, the Company acquired certain core coal operations of Alpha Natural Resources, Inc. in a transaction accounted for as a business combination. As a result of the acquisition, the financial information for the successor periods is presented on a different cost basis than that for the predecessor periods and, therefore, is not comparable.
/s/ KPMG LLP
Greensboro, North Carolina
August 20, 2018


Exhibit 23.2

Consent of Independent Auditors
We consent to the use of our report dated March 31, 2018, except for note 1(c), which is as of June 7, 2018, with respect to the consolidated balance sheets of ANR, Inc. and subsidiaries (ANR) as of December 31, 2017 and 2016, and the related consolidated statements of operations, comprehensive income (loss), stockholders' equity (deficit), and cash flows for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016, and the related notes (collectively, the “consolidated financial statements”), included herein and to the reference to our firm under the heading “Experts” in the joint proxy statement and prospectus.

Our report contains an explanatory paragraph that states the consolidated financial statements of ANR reflect the transactions that occurred effective July 26, 2016 in accordance with the Second Amended Joint Plan of Reorganization (POR) for Alpha Natural Resources, Inc. (Alpha). The POR provided for the formation of ANR, Inc. and the sale of a number of Alpha’s assets to Contura Energy, Inc., which was a new entity established by Alpha’s former first lien lenders. The consolidated financial statements include all the adjustments necessary for the application of fresh start accounting to the ANR, Inc. successor entity.

 
/s/ KPMG LLP
 
 
 
 
Richmond, Virginia  
August 20, 2018
 
 


Exhibit 23.3

Consent of Independent Auditors
We consent to the use of our report dated August 16, 2018, with respect to the balance sheets of Alpha Natural Resources Holdings, Inc. as of December 31, 2017 and 2016, and the related statements of operations, stockholders' equity (deficit), and cash flows for the year ended December 31, 2017 and for the period from July 26, 2016 through December 31, 2016, and the related notes (collectively, the “financial statements”), included herein and to the reference to our firm under the heading “Experts” in the joint proxy statement and prospectus.

 
/s/ KPMG LLP
 
 
 
 
Richmond, Virginia  
August 20, 2018
 
 


Exhibit 23.4

MARSHALLMILLERLOGOA04.JPG  
582 Industrial Park Road, Bluefield, VA 24605-9364 ■    Phone 276.322.5467
www.mma 1 .com ■    info@mma1.com
CONSENT OF MARSHALL MILLER & ASSOCIATES, INC.
Marshall Miller & Associates, Inc. hereby consents to the references to our firm in the Registration Statement (File No. 333-______) on Form S-4 and related joint proxy statement and prospectus of Contura Energy, Inc., including the reference to our firm under the heading “Experts” in the Registration Statement and related joint proxy statement and prospectus. We hereby further consent to the use of information contained in our reports, dated as of June 13, 2018 and July 3, 2018, respectively, relating to estimates of certain coal reserves.
Marshall Miller & Associates, Inc.
 
 
By:
/s/ K. Scott Keim
Name:
K. Scott Keim
Title:
CEO & Partner
 
 
Dated:
August 20, 2018
ENERGY & MINERAL RESOURCES ■ HYDROGEOLOGY & GEOLOGY ■ GEOPHYSICAL LOGGING SERVICES
CARBON MANAGEMENT ■ EXPERT WITNESS TESTIMONY ■ MINING ENGINEERING ■ PETROLEUM ENGINEERING

 
Exhibit 99.3


[LETTERHEAD OF DUCERA SECURITIES LLC]
The Board of Directors
Contura Energy, Inc.
340 Martin Luther King Jr. Blvd
Bristol, Tennessee 37620
Members of the Board of Directors:
We hereby consent to the inclusion of our opinion letter, dated April 29, 2018, to the Board of Directors of Contura Energy, Inc. (“Contura”) as Annex D to, and reference to such opinion letter under the headings “Summary—Opinion of Contura’s Financial Advisor,” “The Mergers — Background of the Mergers,” “The Mergers — Contura’s Reasons for the Mergers,” “The Mergers — Opinion of Contura's Financial Advisor,” and “The Mergers — Certain Unaudited Prospective Financial Information Prepared by Contura” in, the joint proxy statement and prospectus relating to the proposed transaction involving Contura, Alpha Natural Resources Holdings, Inc. and ANR, Inc., which joint proxy statement and prospectus forms a part of the Registration Statement on Form S-4 of Contura (the “Registration Statement”). By giving such consent, we do not thereby admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in, or that we come within the category of persons whose consent is required under, the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
DUCERA SECURITIES LLC
 
/s/ Michael A Kramer
Name:
Michael A. Kramer
Title:
Chief Executive Officer
August 15, 2018


 
Exhibit 99.4

CONSENT OF MOELIS & COMPANY LLC



August 20, 2018

Board of Directors
ANR, Inc.
636 Shelby Street, 3 rd Floor
Bristol, TN 37620

Members of the Board:
We hereby consent to the inclusion of our opinion letter, dated April 29, 2018, to the Board of Directors of ANR, Inc. (“ANR”) as Annex B to, and to the references thereto under the headings “Summary—Opinions of Alpha’s Financial Advisors—Moelis”, “The Mergers—Background of the Mergers”, “The Mergers—Alpha’s Reasons for the Mergers; Recommendation of the Alpha Board of Directors”, “The Mergers—Opinion of ANR’s Financial Advisor” in, the proxy statement/prospectus relating to the proposed mergers involving ANR, Alpha Natural Resources Holdings, Inc. and subsidiaries of Contura Energy, Inc. (“Contura”), which proxy statement/prospectus forms a part of the Registration Statement on Form S-4 of Contura (the “Registration Statement”).

By giving such consent, we do not thereby admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in, or that we come within the category of persons whose consent is required under Section 7 of, the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.


Very truly yours,
 
/s/ MOELIS & COMPANY LLC
 
MOELIS & COMPANY LLC

Exhibit 99.5
[BRG VALUATION SERVICES, LLC]

August 20, 2018

Board of Directors
Alpha Natural Resources Holdings, Inc.
c/o Alpha Natural Resources Holdings, Inc.
300 Running Right Way
Julian, WV 25529

Members of the Board of Directors:

We hereby consent to the inclusion of our opinion letter, dated April 29, 2018 to the Board of Directors of Alpha Natural Resources Holdings, Inc. (“Holdings”) as Annex C to, and to the reference thereto under the headings “Summary—Opinion of Alpha’s Financial Advisors”, “The Mergers—Background of the Mergers”, “The Mergers—Alpha’s Reasons for the Mergers; Recommendation of the Alpha Board of Directors” and “The Mergers—Opinion of Holdings’ Financial Advisor” in, the joint proxy statement and prospectus relating to the proposed transaction involving Holdings, ANR, Inc., Contura Energy, Inc. (“Contura”), Prime Acquisition I, Inc. and Prime Acquisition II, Inc., which joint proxy statement and prospectus forms a part of the Registration Statement on Form S‑4 of Contura (the “Registration Statement”).
 
By giving such consent, we do not thereby admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in, or that we come within the category of persons whose consent is required under Section 7 of, the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.


Very truly yours,
 
/s/ BRG VALUATION SERVICES, LLC

 
BRG VALUATION SERVICES, LLC


 


Exhibit 99.6


CONSENT TO BE NAMED A DIRECTOR OF CONTURA ENERGY, INC.
In accordance with Rule 438 promulgated under the Securities Act of 1933, as amended, I hereby consent to being named in the Registration Statement on Form S-4 (Registration No. 333-______) of Contura Energy, Inc. (the “Company”), and any amendments thereto (the “Registration Statement”), as a person who is proposed to become a director of the Company as of the Second Effective Time (as such term is defined in the Agreement and Plan of Merger, dated as of April 29, 2018, by and among the Company, ANR, Inc., Alpha Natural Resources Holdings, Inc., Prime Acquisition I, Inc. and Prime Acquisition II, Inc.), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 20, 2018
 
 
 
 
 
By:
/s/ John E. Lushefski
 
 
John E. Lushefski


Exhibit 99.7


CONSENT TO BE NAMED A DIRECTOR OF CONTURA ENERGY, INC.
In accordance with Rule 438 promulgated under the Securities Act of 1933, as amended, I hereby consent to being named in the Registration Statement on Form S-4 (Registration No. 333-______) of Contura Energy, Inc. (the “Company”), and any amendments thereto (the “Registration Statement”), as a person who is proposed to become a director of the Company as of the Second Effective Time (as such term is defined in the Agreement and Plan of Merger, dated as of April 29, 2018, by and among the Company, ANR, Inc., Alpha Natural Resources Holdings, Inc., Prime Acquisition I, Inc. and Prime Acquisition II, Inc.), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 20, 2018
 
 
 
 
 
By:
/s/ Daniel J. Geiger
 
 
Daniel J. Geiger


Exhibit 99.8


CONSENT TO BE NAMED A DIRECTOR OF CONTURA ENERGY, INC.
In accordance with Rule 438 promulgated under the Securities Act of 1933, as amended, I hereby consent to being named in the Registration Statement on Form S-4 (Registration No. 333-______) of Contura Energy, Inc. (the “Company”), and any amendments thereto (the “Registration Statement”), as a person who is proposed to become a director of the Company as of the Second Effective Time (as such term is defined in the Agreement and Plan of Merger, dated as of April 29, 2018, by and among the Company, ANR, Inc., Alpha Natural Resources Holdings, Inc., Prime Acquisition I, Inc. and Prime Acquisition II, Inc.), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 18, 2018
 
 
 
 
 
By:
/s/ David J. Stetson
 
 
David J. Stetson


Exhibit 99.9


CONSENT TO BE NAMED A DIRECTOR OF CONTURA ENERGY, INC.
In accordance with Rule 438 promulgated under the Securities Act of 1933, as amended, I hereby consent to being named in the Registration Statement on Form S-4 (Registration No. 333-______) of Contura Energy, Inc. (the “Company”), and any amendments thereto (the “Registration Statement”), as a person who is proposed to become a director of the Company as of the Second Effective Time (as such term is defined in the Agreement and Plan of Merger, dated as of April 29, 2018, by and among the Company, ANR, Inc., Alpha Natural Resources Holdings, Inc., Prime Acquisition I, Inc. and Prime Acquisition II, Inc.), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 19, 2018
 
 
 
 
 
 
By:
/s/ Harvey L. Tepner
 
 
Harvey L. Tepner